Bifurcated Trials: Going away?
Sunday, September 27, 2009 Filed in: New
Jersey|
Second
Injury Fund| Trial
Proofs|
Appellate
Practice
It happens all the time: where no settlement can be
reached a case involving the Second Injury Fund is
set down for a bifurcated trial. This procedure
allows the Trial to take place without a Deputy
Attorney general present. This is generally done when
the Fund has taken a ‘no pay’ position.
In a recently decided case (Nisivoccia v. County of Essex, A-1946-07T2 (App. Div. 2009), the court took testimony and began proceedings without the Second Injury Fund. The Court ruled that the claimant was ‘totally disabled’ and the Fund got involved in the case. After Trial the judge found the respondent liable for 35% of ‘total disability’ and the Second Injury Fund liable for 65% total disability.
The Fund appealed, arguing that it was denied the opportunity to cross-examine the petitioner’s witnesses.
The Appellate Panel agreed, stating that “administrative regulations cannot be construed to infringe upon the due process rights of either party” which includes the right to cross-examine witnesses.
In a recently decided case (Nisivoccia v. County of Essex, A-1946-07T2 (App. Div. 2009), the court took testimony and began proceedings without the Second Injury Fund. The Court ruled that the claimant was ‘totally disabled’ and the Fund got involved in the case. After Trial the judge found the respondent liable for 35% of ‘total disability’ and the Second Injury Fund liable for 65% total disability.
The Fund appealed, arguing that it was denied the opportunity to cross-examine the petitioner’s witnesses.
The Appellate Panel agreed, stating that “administrative regulations cannot be construed to infringe upon the due process rights of either party” which includes the right to cross-examine witnesses.
