In the recent unpublished case, Labega v. Joshi, 2024 N.J. Super. Unpub. LEXIS 157, the New Jersey Appellate Division issued a decision that is favorable for all employers in the State. The Court held that where an employer and an employee are represented by separate counsel, the employer’s counsel has the constitutional right to fully participate in the trial.
The medical malpractice case arose after an Emergency Department provider treated a patient who ultimately required a below-the-knee leg amputation. On the first day of trial, plaintiff’s counsel made an oral application requesting that counsel for the provider’s employer, which was in the case solely on a theory of vicarious liability for the actions of its employee, be severed from participating at trial. Plaintiff’s counsel argued that because the interests of the employer and employee were “identical,” he was being “double-teamed.” At the same time, counsel sought to collect damages, interest, and cost of suit against the employer. Without permitting the employer’s counsel to brief the issue, the trial court granted the application.
The Appellate Division reversed the trial court’s decision, holding that the employer’s right to due process was violated when it was not given an opportunity to prepare an opposition and submit a meaningful response. The Appellate Division also found that the trial court’s severance order would have an unacceptable result: “the case would be tried and a verdict on liability and damages would be reached without the participation of one of the named defendants.” The Appellate Division held that “that’s an untenable deprivation of a fundamental constitutional right.” Citing the Seventh Amendment to the United States Constitution, and New Jersey’s Constitution, the Appellate Division reaffirmed that “the right of a trial by jury shall remain inviolate.”
As an unpublished opinion, this decision is persuasive law for trial courts. It stands as a reminder that all parties, including defendant employers whose exposure is strictly vicarious, are entitled to due process and have a constitutional right to a jury trial.