An Anniversary in Damages Law

On this date in 1957, the Supreme Court decided Tessmar v. Grossner, 23 N.J. 193 (1957). The case involved a dispute over patient records from a dermatology practice in Westwood, NJ. Plaintiff’s decedent, Dr. Kadisch, became ill and was unable to practice. He entered into a written contract with defendant under which defendant would “take care of the practice during Dr. Kadisch’s illness.” He was to see patients two days per week and be paid $40 per day.

Soon after that, Dr. Kadisch died. Defendant continued under the written contract for a short time, after which he entered into an oral agreement with Dr. Kadisch’s widow, also a plaintiff in this case, which everyone agreed was temporary and terminable on one or two months’ notice. Under that agreement, “the defendant was to pay the sum of $ 200 a month for the use of the three-room offices in the home at Westwood, together with the equipment therein, including medicine, files and charts.” Meanwhile, Mrs. Kadisch was attempting to sell the practice and its assets.

Defendant had his secretary make copies of key portions of “chart cards” that Dr. Kadisch had maintained. The information copied included “the names and addresses of the patients, together with their telephone numbers, the age of each patient and whether or not the patient was a good
or bad payer.” Thereafter, Mrs. Kadisch “apparently decided that he was not interested in purchasing the practice but his paramount purpose was to carry on the practice so that at the same time he could compile for his own use a list of all the patients.” She terminated the agreement with defendant. Defendant then immediately opened an office in Westwood and solicited all the patients whose information he had copied from Dr. Kadisch’s chart cards.

Plaintiff sued for conversion and on other theories. “The trial court held the Kadisch estate had something of value in these charts and that the appellant as effectively took them by making copies as if he had taken them away and never returned them.” Defendant “had no right to that, nor the right to extract such information from these charts and take them elsewhere for that purpose.” Instead, he had only the right to use them while he was carrying on Dr. Kadisch’s practice under the written and oral agreements. “Such use of the charts as he made of them after copying the names and addresses was not in accordance with the purpose of the agreement and was in violation of the property rights of the executor in them.” Plaintiff were thus granted a damage award., which the Supreme Court, speaking through Justice Oliphant, voted 6-1 to uphold.

Defendant argued that there was no evidence that justified awarding anything more than nominal damages. He claimed that “the likelihood the patients would return for treatment just because another physician occupied the same office would be just a slight possibility, and that in an action for the conversion of chattels the rule of damages is limited to the value of the chattels converted.” But defendant had “recognized some value in the charts and records, for he was willing to pay for their use.” And plaintiffs had offered other evidence of the value of the practice. Finally, it seemed to the Court to be “the commonsense thing” that when a medical practice is sold without patient records and charts, “the valuation is depreciated.”

There followed the language for which this case has been cited dozens of times, including as recently as 2019. “If the evidence affords a basis for estimating the damages with some reasonable degree of certainty, it is sufficient. Wolcott, Johnson & Co. v. Mount, 36 N.J.L. 262, 272 (Sup. Ct. 1873), affirmed 38 N.J.L. 496 (E. & A. 1875). The rule relating to the uncertainty of damages applies to the uncertainty as to the fact of damage and not as to its amount, and where it is certain that damage has resulted, mere uncertainty as to the amount will not preclude the right of recovery.” Since there was enough evidence to meet these standards, the trial court’s damage award was affirmed, over the lone dissent of Chief Justice Vanderbilt, who would have reduced the award to six cents.