 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Spaulding v. Hussain12/27/1988
Plaintiff Harry L. Spaulding brought this action on both contract and tort theories against defendant S. Khalid Hussain, a neurologist who had treated him for the serious injuries he suffered when he fell into a pit at a scrap metal yard owned and operated by Cumberland Recycling Corporation. The gravamen of the complaint was that Hussain improperly refused to testify on plaintiff's behalf as his treating physician at the trial of his negligence action against Cumberland, requiring him to settle his claim against Cumberland for a grossly inadequate sum. Following a trial in which plaintiff in effect "retried" his case against Cumberland as well as his action against Hussain, the jury, responding to extensive special interrogatories, returned a verdict in plaintiff's favor on both the contract and tort theories. It also, however, allocated 45% of total negligence to plaintiff. The trial judge thereafter granted plaintiff's motion for judgment n.o.v. and assessed 100% of causative negligence to defendant. Defendant appeals, claiming error in the grant of the motion for judgment n.o.v., in the denial of his motion for a new trial, and in the manner in which the trial judge calculated prejudgment interest.
In August 1981 plaintiff, then 61 years old and a self-employed scrap dealer, brought a load of light iron to the premises of Cumberland Recycling Corporation. As was his custom, he
drove his pickup truck to a metal ramp at the edge of the pit in which scrap metal of that nature was ordinarily dumped and compacted. Assisted by his cousin, he attempted to unload the truck by tossing the iron into the pit. As they were engaged in this maneuver, plaintiff slipped on grease which covered the metal ramp and fell into the pit. He sustained serious and permanent orthopedic and neurological injuries whose treatment required surgery, lengthy hospitalizations, and extensive rehabilitation. His primary physician throughout was defendant Hussain.
In due course, plaintiff filed a negligence action against Cumberland claiming that it had failed to maintain its business premises in a reasonably safe condition and that it was consequently liable to him, a business invitee, for the injuries caused by the defective condition of the property. In preparation for trial, plaintiff's then attorney, Kenneth Calloway, obtained the forensic services of a consulting engineer, whose expert opinion supported plaintiff's theories of Cumberland's liability. Calloway, regarding Hussain's prospective testimony as critical to the damages issues, met with him in May 1984 to review his various written reports, to discuss plaintiff's continuing symptoms, condition and prognosis, and to ensure his availability at trial. By this time it appeared that Cumberland was not proposing to offer any medical proofs in contravention and, hence, that Hussain was the sole anticipated medical witness. In any event, according to Calloway's testimony in this trial, Hussain unequivocally agreed at that conference that as long as he had adequate notice, he would willingly appear at trial.
Trial of the action against Cumberland was first scheduled for November 26, 1984. Calloway advised Hussain of the date, Hussain said he would be out of the country, and Calloway sought and was granted an adjournment. The trial was rescheduled for January 2, 1985, a Wednesday. Calloway testified that he telephoned Hussain's office on December 5, 1984 to ascertain his availability for trial on the January date and was assured by Hussain's secretary that although he was still out of
the coun
Page 1 2 3 4 5 6 7 8 New Jersey Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|