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NJ Supreme Court Affirms Punitive Damages Act Limitations

Sep 28, 2022 | Written by: Jacob A. Papay, Jr., Esq. |

On August 25, 2022, the NJ Supreme Court affirmed that the Punitive Damages Act, NJSA 2A:15-5.10, was enacted specifically to limit the award of punitive or exemplary damages to exceptional cases where it has been proven by clear and convincing evidence the harm caused was due to the tortfeasor’s conduct with actual malice or wanton and willful disregard for the injured party’s safety.  Mirian Rivera v. The Valley Hospital, Inc., A-25/26/27-21.  To emphasize the extent of the limitation, the Court highlighted that under the Act’s provision for [clear and convincing] proof of negligence, even gross negligence is not sufficient to permit an award of punitive damages under the Act. 

The Court’s emphasis on the limited availability of Punitive Damages is more noteworthy by comparing the underlying facts in Rivera to the underlying fact patterns in other reported cases granting punitive damages.  We have become accustomed to ads and reports of multi-million dollar class action punitive damage awards against pharmaceutical and chemical producers where the risk of harm was infinitesimal in comparison with the risk in the Rivera matter.

In Rivera, the plaintiff’s decedent succumbed from the exacerbation of a rare undetected uterine fibroid cancer.  The dissection of non-cancerous fibroid tissues by a robotic power morcellation device during a laparoscopic hysterectomy exposed the undetected cancerous fibroid tissue, allowing the cancer to spread.  This rare form of cancer known as leiomyosarcoma is undetectable prior to the surgical procedure.  Based on FDA reported data, roughly 1 of 350 hysterectomy patients, or .29%, have undetected leiomyosarcoma that could be exacerbated with the morcellation device.  (You may recall that we had mandatory lockdowns and restrictions in NJ counties where the COVID-19 mortality rate was equal to or greater than 1 in 1000, or .1%.)  The risk of harm from pharmaceuticals and chemicals in cases where punitive damages were awarded is often far less. 

The Court noted the defendant’s choice to use the power morcellation device came after four pre-surgical meetings with the plaintiff’s decedent during which the risks were discussed with the patient and consent for the surgery was obtained, and after numerous inquiries and meetings of the hospital’s risk management department.  The Court noted the FDA’s warning of the risk was not a mandated proscription of the procedure.  The Court did not believe any reasonable jury could conclude by clear and convincing standard that the surgeon’s decision to proceed rose to the level of actual malice or wanton and willful indifference to the risk of harm.  That conclusion was made despite the fact that another morcellation device manufacturer halted production after the FDA warning, and a prior patient of the defendant surgeon died from the same cancer exacerbated from the procedure using the morcellation device.

Under the circumstances, the Rivera case presents a very strong defense to claims of Punitive Damages under New Jersey law.  However, the restrictions are not applicable or persuasive to claims for Punitive Damages that are not pre-empted by the NJ Punitive Damages Act.

Jacob Papay, Jr.


Jacob A. Papay, Jr. is a partner with Gebhardt & Kiefer, PC, and practices primarily in the areas of construction defect claims, construction injury claims, first-party insurer claims, insurance coverage disputes, subrogation, provider health care law, commercial law, defense of professional negligence, and public entity general liability.  He represents numerous insurers, Third Party Administrators, medical groups, and businesses, and he has successfully defended public entity officials and employers in wrongful death, discrimination, excessive force and other civil rights claims.  In addition, Mr. Papay represents small businesses in mergers, acquisitions, trade secrets, employment and unfair trade practice claims. 

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Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.