| Read Time: 3 minutes | Medical Malpractice

Once you’re beyond the one-year mark, the trial judges have a lot less ability, if none at all,” to declare that a case is timely. “That’s really what the state was hanging its hat on in terms of evaluation of this second round of cases,” plaintiffs lawyer Paul da Costa said

New Jersey has agreed to a $16 million settlement on behalf of 71 residents of two state-owned nursing homes for veterans who died of COVID-19. The latest settlement comes on top of a $52.9 million deal with the state in December 2021 on behalf of another 119 residents of the Paramus and Menlo Park veterans homes who died of COVID-19.

Both groups of suits alleged gross negligence by management at the homes in the early days of the pandemic, such as ordering staff not to wear masks or gloves, and allowing residents who had contracted the virus to interact with other residents who were not infected. But the latest group of claimants will receive an average of about $225,000 for each dead resident, compared with an average of more than $400,000 each for the first group.

“That is based almost exclusively on the fact that the state had Tort Claims Act defenses, meaning that they were arguing that this second round of claimants not only failed to file a tort claim notice within 90 days, but they also failed to file a tort claim notice within one year,” said Paul da Costa of Snyder Sarno D’Aniello Maceri & da Costa in Roseland, who represented 55 of the 71 claimants in the latest settlement. “The case law in New Jersey says that trial judges have discretion to determine that a tort claims notice that is filed within 90 days but before one year can still be deemed timely filed. Once you’re beyond the one-year mark, the trial judges have a lot less ability, if none at all. That’s really what the state was hanging its hat on in terms of evaluation of this second round of cases.”

Besides da Costa, three other lawyers represented the latest group of claimants—Francisco Rodriguez of Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins of Springfield represented another 12 claimants, Richard Reinhartz of The Reinartz Law Firm in Hackensack had three and Craig Laughlin of Gale & Laughlin in Hazlet had one.

The second group of claimants represents people whose family members died in the two facilities and were unaware of the first suit until they heard news reports about the settlement. Lawyers for the state initially said the second group of claimants were not eligible for compensation because they filed their Tort Claims Act notices more than 90 days after the date of death.

Another reason the second group’s recoveries are smaller is that the U.S. Supreme Court has agreed to hear a case that could take away the plaintiffs’ ability to sue under the federal Nursing Home Bill of Rights, said Rodriguez.

The high court’s decision to hear that case suggests the justices are inclined to change the law, he said. If that part of the veterans home claims is taken away, a win would be far from certain, he said. The case granted certiorari in May, from the U.S. Court of Appeals for the Seventh Circuit, is Health and Hospital Corp. of Marion County v. Talevski.

The $16 million settlement was reached after mediation with Raymond Reddin, a former Superior Court judge now with Hall Booth Smith in Saddle Brook. Reddin also provided mediation services in the first round of claims.

In the second round of settlements, the state agreed to make payment to plaintiffs’ counsel in one lump sum, before the end of the year, whereas in the first round of litigation, the state paid its award in installments over time, da Costa said.

John North of Greenbaum Rowe Smith & Davis in Woodbridge, who represented the state in the litigation, confirms the latest settlement, but had no comment.

The second settlement doesn’t close the door on legal maneuvers related to the veterans homes. Da Costa said he just filed a new group of tort claims on behalf of 41 employees of homes who contracted COVID-19, including one who died. Da Costa said the state has agreed to waive the state of limitations.

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