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D'ARIES v. SCHELL

274 N.J. Super. 349 (1994)

644 A.2d 134

LARRY D'ARIES & FRANCES D'ARIES, PLAINTIFFS-APPELLANTS, v. JEROME M. SCHELL, D.P.M. & FRANKLYN GERARD, M.D., DEFENDANTS-RESPONDENTS.

Superior Court of New Jersey, Appellate Division.

Decided June 28, 1994.

Attorney(s) appearing for the Case

Robert L. Martin argued the cause for appellants.

Jane S. Kelsey argued the cause for respondent Jerome M. Schell (Reiseman & Sharp, attorneys; Ms. Kelsey, of counsel; John R. Gonzo, on the brief).

Jeffrey W. Moryan argued the cause for respondent Franklyn P. Gerard (Connell, Foley & Geiser, attorneys; Mr. Moryan, on the brief).

Before Judges COLEMAN, MUIR, Jr., and LEVY.

The opinion of the court was delivered by COLEMAN, P.J.A.D.

The significant issues raised in this medical malpractice case are whether plain error occurred when the trial judge failed to instruct the jury (1) the defendant bore the burden of proving plaintiff Larry D'Aries's comparative fault and (2) that the evidence respecting plaintiff's health habits and failure to follow medical advice before and after the alleged malpractice could not be considered as evidence...

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