Annotate this Case






DOCKET NO. A-5330-07T15330-07T1


and as General Administrator

and Administrator Ad Prosequendum

of the Estate of Matthew Calbi,











Defendants-Third Party




Defendant-Third Party




Third Party Defendant-




Argued January 14, 2009 - Decided

Before Judges Cuff, Fisher and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4963-05.

Lewis Stein argued the cause for appellant (Nusbaum, Stein, Goldstein, Bronstein & Kron, attorneys; Mr. Stein, on the brief).

Gary L. Riveles argued the cause for respon-dents Kenneth Cartaxo, M.D. and Pascack Emergency Services, P.A. (Dughi & Hewit, attorneys; Mr. Riveles, on the brief).

Paul J. Miller argued the cause for respon-dent Roxana Kline, M.D. (Giblin & Combs, attorneys; Mr. Miller, on the brief).

Respondent Linda Calbi has not filed a brief.


In this action, plaintiff alleged that the medical defendants negligently treated his son, Matthew Calbi, who died at Pascack Valley Hospital on August 17, 2003. After two years of litigation, defendants were granted leave to file a third-party complaint against Linda Calbi, Matthew's mother, who allegedly kicked Matthew in the neck, causing the injuries for which he required treatment. We granted leave to appeal to consider whether the trial judge abused his discretion in denying plaintiff's motion to sever the medical malpractice claim from defendants' third-party action against Linda Calbi for indemnification.

In arguing that these two claims should not be resolved by way of a single trial, plaintiff first asserts that the trial judge should not have granted defendants leave to file the third-party action because the application came so late in the proceedings and because the indemnification claim lacked a sufficient relationship with the medical malpractice claim. We reject these arguments not only because our grant of leave to appeal was limited to the severance issue, but also because there was no prejudice or harm generated by permitting the assertion of the claim in this single suit.

The only harm potentially caused by a single trial in this case emanates from the possibility of prejudice or jury confusion. The trial judge rejected plaintiff's arguments in this regard; our grant of leave to appeal was limited to a consideration of that determination.

To fairly consider the difficulties presented by one trial encompassing both the malpractice claims and defendants' claims against decedent's mother, the nature of the latter must be understood. Asserting alternatively that Linda Calbi's alleged kicking of her son was either intentional or negligent, defendants' third-party complaint demanded contribution, based upon both the New Jersey Joint Tortfeasors Act, N.J.S.A. 2A:15-5.1 to -5.8, and the New Jersey Comparative Negligence Act, N.J.S.A. 2A:53A-1 to -29, and common law indemnification.

Assuming for present purposes the truth of defendants' factual allegations -- that the fourteen-year old Matthew arrived at the emergency room with injuries sustained as a result of being kicked in the neck by his mother -- defendants and Linda Calbi cannot be deemed joint tortfeasors and the legislation regarding the rights of joint tortfeasors has no application here. See, e.g., New Milford Bd. of Educ. v. Juliano, 219 N.J. Super. 182, 185 (App. Div. 1987). Their alleged torts were separate in nature and time, and the policy interest in distributing liability for the plaintiff's loss among joint tortfeasors, as revealed by the legislation cited, is not implicated. See, e.g., Cherry Hill Manor Assoc. v. Faugno, 182 N.J. 64, 75 (2001); Brodsky v. Grinnell Haulers Inc., 181 N.J. 102, 114 (2004).

However, where successive torts are alleged, the initial tortfeasor is "potentially liable for all the natural and proximate injuries that flow from the initial tort, including the consequences of medical treatment caused by his [or her] wrong." Ciluffo v. Middlesex Gen. Hosp., 146 N.J. Super. 476, 483 (App. Div. 1977). In addition, each successive tortfeasor obtains the right to a credit from the other to the extent necessary to "avoid duplicating compensation to the plaintiff." Daily v. Somberg, 28 N.J. 372, 386 (1958). Accordingly, although defendants did not have a right to contribution, because they and Linda Calbi cannot be considered joint tortfeasors, defendants are entitled -- as alleged successive tortfeasors -- to pursue a claim for indemnification from Linda Calbi.

Plaintiff does not question defendants' right to maintain an action for indemnification against Linda Calbi. Instead, he argues that the claim should not have been included in this civil action or, if properly permitted, should be severed and tried separately. As we have already indicated, we did not grant leave to appeal the order that permitted the third-party action against Linda Calbi and need not comment further on the judge's exercise of discretion in that regard. We permitted this interlocutory appeal only to consider whether the trial judge erred in refusing to sever the claims. Now that the matter has been fully briefed, we conclude that the problems, which plaintiff contends would result from a single trial of all claims, have not yet ripened. As a result, we find no error in the trial judge's refusal to sever the claims at this time. Our view is shaped by the current status of defendants' claim for indemnification.

The record on appeal indicates that, in April 2006, Linda Calbi pled guilty to second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), in connection with her infliction of the injuries that ultimately resulted in Matthew's death. She filed a pro se answer to the third-party complaint, but refused to answer questions about the occurrence at her deposition in this matter on April 16, 2008.

In considering the impact of Linda Calbi's refusal to speak about the incident, we recognize that the invocation of the privilege against self-incrimination during a civil proceeding often causes considerable difficulties. In Mahne v. Mahne, 66 N.J. 53, 58 (1974), the Court recognized that "[i]n civil proceedings the courts have, in the interests of truth and justice, displayed understandable readiness to impose noncriminal sanctions for refusal to submit to pretrial discovery on the basis of the privilege." See also Woodward-Clyde Consultants v. Chem. & Pollution Sciences, Inc., 105 N.J. 464, 475 (1987); Costanza v. Costanza, 66 N.J. 63, 67-68 (1974); Innes v. Carrascosa, 391 N.J. Super. 453, 499 (App. Div.), certif. denied, 192 N.J. 73 (2007).

In Mahne, the Court established that a plaintiff who invokes the right against self-incrimination to avoid pretrial discovery may face dismissal, but that a different approach is often required when a defendant invokes the same right because, unlike a plaintiff, the defendant "is in court involuntarily." 66 N.J. at 59. In the latter circumstance, "courts have generally declined to strike [defendant's] answer and thus permit a default judgment . . . although they have, in seeking a proper balance, been willing to impose lesser sanctions." Ibid. In Whippany Paper Board Co. v. Alfano, 176 N.J. Super. 363, 375-76 (App. Div. 1980), we further expounded on the sanctions available when a defendant justifiably invokes the right against self-incrimination. We would also note that some courts have held that a defendant's assertion of the Fifth Amendment right during civil discovery proceedings may preclude that defendant from responding on the same issue when opposing a motion for summary judgment. See, e.g., In re Edmond, 934 F.2d 1304, 1308-09 (4th Cir. 1991); United States v. Parcels of Land, 903 F.2d 36, 43 (1st Cir.), cert. denied, 498 U.S. 916, 111 S. Ct. 289, 112 L. Ed. 2d 243 (1990). In addition, we have recognized the authority of trial courts to stay discovery during the pendency of criminal proceedings to avoid the prejudice when the right against self-incrimination has been justifiably invoked by a defendant in a civil proceeding. Whippany Paper Board Co., supra, 176 N.J. Super. at 373.

These and other similar problems, however, are not necessarily implicated here. Because Linda Calbi has not appeared in connection with this appeal, and this particular issue has not been briefed, it would be unwise to decide whether or to what extent there should be a sanction imposed because of Linda Calbi's failure to respond to germane questions at her deposition; nor do we suggest what would occur if defendants moved for summary judgment on their indemnification claim and Linda Calbi attempted to factually respond in the face of her decision to remain silent at her deposition. However, considerable doubt is engendered by the record on appeal as to whether Linda Calbi validly invoked the right to remain silent at her deposition because she had already incriminated herself by pleading guilty to a criminal offense regarding the August 17, 2003 assault, was sentenced, and presumably faces no possibility of further criminal prosecution regarding that incident. Mahne and the other authorities to which we have referred, in seeking to steer a course between a plaintiff's right to proceed with the civil case and a defendant's right to remain silent, presuppose a justifiable invocation of the Fifth Amendment. Linda Calbi did not explain or attempt to justify her silence at her deposition. Considering that she pled guilty to assaulting Matthew on August 17, 2003, her later assertion of the privilege against self-incrimination as a basis for declining to answer deposition questions about that occurrence would appear to be of dubious force. See State v. Tyson, 43 N.J. 411, 416 (1964), cert. denied, 380 U.S. 987, 85 S. Ct. 1359, 14 L. Ed. 2d 279 (1965); Lewis v. Dep't of Corr., 365 N.J. Super. 503, 506-07 (App. Div. 2004).

Although the present record does not support its invocation, we leave the questions we have posed regarding Linda Calbi's assertion of the Fifth Amendment right against self-incrimination at her deposition for another day. For present purposes, it suffices to say that it is reasonably likely that defendants' claim for indemnification against Linda Calbi will not be resolved by a jury because it would appear she was not justified in invoking the privilege against self-incrimination and her invocation of the Fifth Amendment, unless seasonably cured, would likely preclude her from factually responding to a summary judgment motion on defendants' claim against her. As a result, it presently appears that the plight urged by plaintiff -- that a single trial resolving both the medical malpractice claims and defendants' claim for indemnification would cause confusion for the jury and prejudice to the plaintiff -- is not likely to arise.

Having examined the current status of the indemnification claim, we turn to the precise point before us: whether the judge abused his discretion in denying severance. We recognize that a trial judge's exercise of the discretion to grant or deny severance may turn on several factors, including jury confusion, the convenience of the parties and the avoidance of prejudice. R. 4:38-2; Tobia v. Cooper Hosp. Univ. Med. Ctr., 136 N.J. 335, 345 (1994); Lech v. State Farm Ins. Co., 335 N.J. Super. 254, 260 (App. Div. 2000). That exercise of discretion, however, presupposes that the issues or claims that a party seeks to sever actually require a trial. The trial judge denied severance because he concluded that the claims could "be tried together without undue prejudice to the parties" and because the claims "are [inextricably] linked." As we have indicated, it does not presently appear likely that Linda Calbi will be able to validly refute the factual allegations contained in the third-party complaint or otherwise mount a defense to the indemnification claim should defendants move for summary judgment. Accordingly, we affirm the order denying severance because the predicate for severance -- the need for a trial of multiple claims -- does not appear likely to come to fruition.

We hasten to indicate that our ruling is based on the record as we have described it. We do not foreclose the trial judge's reconsideration of severance if the indemnification claim ultimately survives summary judgment. And we neither offer nor intimate any view as to whether -- should the indemnification claim turn on a dispute that requires resolution by a jury -- the trial judge's view of severance as revealed by his prior written decision constitutes an appropriate exercise of his discretion.


Two motions for leave to file a third-party complaint were filed and granted -- one by defendants Kenneth W. Cartaxo, M.D., Pascack Emergency Services and Steven M. Schreiber, M.D., and the other by defendant Roxana Kline, M.D. Dr. Schreiber was later dismissed from the action. Even though separately represented, we hereafter refer to the remaining defendant/third-party plaintiffs collectively as "defendants."

The grant of leave to appeal one interlocutory order does not bring up for review any prior interlocutory orders. See Edwards v. McBreen, 369 N.J. Super. 415, 420-21 (App. Div. 2004); Towpath Unity Tenants Ass'n v. Barba, 182 N.J. Super. 77, 81 (App. Div. 1981).

The Court in Daily also held that an injured party does not release a claim against one of successive tortfeasors by settling with the other unless it could be shown that the injured party was fully compensated by the settlement. 28 N.J. at 384-86.

The court of appeals in S.E.C. v. Graystone Nash, Inc., 25 F.3d 187 (3d Cir. 1994), provided a thorough discussion of the impact of the exercise of the Fifth Amendment right against self-incrimination in various civil contexts.

Tyson held that an individual could validly invoke the privilege against self-incrimination after pleading guilty but before sentencing, citing the liberality with which the law permits an individual to withdraw a guilty plea prior to sentencing. 43 N.J. at 416. In Lewis, we recognized that once an individual has pled or been found guilty, sentenced and exhausted his direct appeals from that crime, he may no longer refuse to answer questions about the crime by assertion of the Fifth Amendment even if he contemplates or pursues a petition for post-conviction relief or a habeas corpus petition. 365 N.J. Super. at 507. In short, the privilege may be validly invoked only when the risk of self-incrimination is "real and appreciable," not "remote and improbable." Ibid. (quoting Brown v. Walker, 161 U.S. 591, 599-600, 16 S. Ct. 644, 648, 40 L. Ed. 819, 822 (1896)). Here, the record on appeal reveals that Linda Calbi was sentenced and is serving a prison term. We have not been informed as to whether Linda Calbi filed a direct appeal, but the fact that she was sentenced in 2006 would suggest that she either has not appealed or her appeal has already been decided. In any event, on the present record, it would appear that any risk of self-incrimination with regard to the August 17, 2003 incident is "remote and improbable."

Although we have no cause for suspicion in this case, we would add that defendants should not be permitted to forego moving for summary judgment on their indemnification claim, which at present would appear to have merit, merely to permit the scope of a trial in this matter to include circumstances and facts relating to their claim against Linda Calbi having no bearing on the medical malpractice action. In such a circumstance, the trial judge has considerable authority to revisit the question and direct severance or, in the exercise of "reasonable control over the mode . . . of presenting evidence," N.J.R.E. 611(a), to adopt any other reasonable approach to the ordering of proofs to preclude any party from gaining a tactical advantage merely because of the joinder of the claims.





January 30, 2009