NEW JERSEY LAWYER

DAILY BRIEFING      01/31/2006


News Briefs

JUDGE ROSENBERG DIES AT 62
Superior Court Judge David A. Rosenberg, who served four years in the civil and family courts in Middlesex County, died Sunday at his home in East Brunswick. A graduate of Rutgers University and Rutgers Law School-Newark, Judge Rosenberg was a founding partner of the New Brunswick firm Rosenberg and Saloman, where he practiced until his appointment to the bench. Memorial contributions may be made to the Judge David A. Rosenberg Memorial Fund, c/o East Brunswick Jewish Center, 511 Ryders Lane, East Brunswick, N.J. 08816. 1-30-06

OCEAN PROSECUTOR WANTS GUN REPLICAS FEDERALLY BANNED
As instances of toy guns being mistaken for real weapons have proliferated in New Jersey and nationwide — sometimes leading to deaths — the Ocean County prosecutor wants Congress to ban their manufacture and sale. In one of the latest examples, Prosecutor Thomas F. Kelaher pointed to the case of Kenneth Lefurge Jr., a 25-year-old Point Pleasant man who faces 10 to 20 years in prison when sentenced March 17. He was convicted of armed robbery following a trial before Superior Court Judge James N. Citta. Lefurge used a spring-powered gun that resembled a real one. He and another man, who previously pleaded guilty as an accomplice, robbed $50 from a 16-year-old boy at Memorial Middle School in Point Pleasant last February. Kelaher has asked federal legislators from New Jersey to push for a law banning the manufacture or sale of weapon replicas. 1-30-06

SENTENCING COMMISSION COULD BE PERMANENT
Under legislation filed by two of its members, the New Jersey Commission to Review Criminal Sentencing could become a permanent body. If A-2103, introduced by Assemblymen Peter J. Barnes (D-Middlesex) and Michael Patrick Carroll (R-Morris) passes, the state would become the 24th to have such a permanent oversight panel. The current panel, chaired by former Middlesex Judge Barnett E. Hoffman, began meeting in July 2004 and has backed proposals for giving judges greater discretion in deciding when a person’s driver’s license should be suspended for offenses unrelated to operating a motor vehicle, and for reducing the size of drug-free school zones from 1,000 feet to 200. The 2003 legislation under which the commission operates says it will terminate when it issues its final report, but doesn’t set a date for that. The commission was created after legislators realized some mandatory sentencing laws may have unintended consequences. 1-30-06

EMPLOYEES BEWARE — BOSSES ARE BIG BROTHER
1984 came and went but the scary predictions in George Orwell’s futuristic 1949 novel seem increasingly more present today. Most employers admit they act as Big Brother, conducting surveillance of employees and their activities, according to a survey by the ePolicy Institute in Columbus, Ohio, and the American Management Association. One of the most common techniques is tracking and reading employees’ online activities. It’s common now for employers to require new workers to read and sign workplace guidelines on internet activities on company time and company equipment. 1-30-06

CHICAGO PAYING WRONGLY JAILED MAN $9 MILLION
A 30-year-old man who spent 11½ years in prison on a rape and robbery conviction before he was released when DNA evidence cleared him, is receiving $9 million from the city of Chicago for his wrongful conviction and imprisonment. The city also is launching a sweeping investigation into the former Chicago crime lab. In 1995, the city turned its crime scene investigation work over to the state police. Lafonso Rollins, the freed inmate, says he’s not celebrating. “This isn’t no lottery ticket. This is my life.” 1-30-06

CORRECTION
An item in the Jan. 26 Daily Briefing about the reassignment of hormone replacement therapy suits incorrectly said Atlantic County Judge Carol E. Higbee was handling all suits involving the Ortho Evra birth-control patch. The item should have said that in addition to overseeing all Vioxx litigation filed in state courts in New Jersey, Higbee is handling cases involving Bextra and Celebrex. The state Supreme Court has not certified cases involving Ortho Evra as a mass tort for centralized management. Ortho Evra cases are handled individually throughout the vicinages. 1-30-06



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, MONDAY, JANUARY 30, 2006
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, JANUARY 30, 2006.

THE SUPREME COURT has announced that it will release an opinion in STATE v. CANNARELLA, A-6, on January 31, 2006. The issue on appeal in Cannarella addresses whether N.J.S.A. 2C:12-1b(5)(d), which elevates a simple assault on a teacher to aggravated assault, applies to an assault committed in a private school.



APPROVED FOR PUBLICATION
TORTS
PHILLIPS v. GELPKE
Appellate Division, A-1932-04T1, approved for publication January 30, 2006. (14 pages). Facts-on-Call Order No. 92831

In a civil suit for sexual assault in which the plaintiff’s claims are based on the recovery of repressed memories, which is more formally defined as dissociative amnesia, the case may not be submitted to a jury without expert testimony that explains and justifies the validity of dissociative amnesia and the recovery of repressed memory and that indicates that the plaintiff actually suffered from dissociative amnesia.

JUVENILES
STATE IN THE INTEREST OF L.R.
Appellate Division, A-3397-03T4, approved for publication January 30, 2006. (22 pages). Facts-on-Call Order No. 92832

In this adjudication of delinquency, the Appellate Division concluded (1) that the DNA Database and Databank Act is not a penal statute and thus does not implicate constitutional ex post facto proscriptions, (2) that the taking of a DNA sample that was compelled by the Act was reasonable, (3) that the absence of counsel at the hearing before the juvenile referee was harmless, and (4) that the admission of hearsay at the juvenile hearing did not violate the Confrontation Clause.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
HOFFMAN v. SMITH
Appellate Division, A-2111-04T1, January 30, 2006, not approved for publication. (15 pages). Facts-on-Call Order No. 19161

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; about six months before the accident, the plaintiff received an “emergency consultation” for “severe lower back pain,” but she claimed that she was asymptomatic when the accident occurred; the trial court determined that a comparative analysis under Polk v. Daconceicao was required due to the plaintiff’s pre-existing lower back condition and that her proofs of a soft-tissue injury did not demonstrate an objective permanent injury under §39:6A-8a; however, (1) the plaintiff’s failure to provide a Polk analysis was not fatal to her claim because, even if Polk remained viable to address the aggravation of pre-existing injuries, there was no basis to extend Polk to this case because the plaintiff claimed actual injuries that were a direct result of the accident and not an aggravation of a pre-existing condition and (2) the evidence — including muscle spasms that persisted two years after the accident, radiological diagnostics that included an MRI that documented three bulging discs, and a limited range of motion — supported a finding of a permanent soft-tissue injury as defined by §39:6A-8a, which was all that was needed to satisfy the verbal threshold.

PREMISES LIABILITY
TOMKINS v. REIN
Appellate Division, A-3005-04T3, January 30, 2006, not approved for publication. (7 pages). Facts-on-Call Order No. 19163

Summary judgment for the defendant homeowner affirmed in an action arising from injuries that the plaintiff sustained while he was working for the defendant independent contractor to remove a tree that was more than 100 feet tall from the homeowner’s premises; the contractor was a co-worker of the plaintiff at a health center, and he operated a part-time business performing odd jobs, including tree removal; the plaintiff sought to avoid application of the general rule, which states that homeowners are not liable for the negligent acts of independent contractors they hire; the Appellate Division was not persuaded by the plaintiff’s arguments (1) that he was only a friend of the contractor and was not an employee or a co-contractor, (2) that the homeowner knew or should have known that the contractor was incompetent, and (3) that the removal of the tree was “inherently dangerous” and could be completed only by “qualified tree surgeons.”

WORKERS’ COMPENSATION
UTTER v. ALLIED SIGNAL, INC.
Appellate Division, A-2449-04T3, January 30, 2006, not approved for publication. (5 pages). Facts-on-Call Order No. 19162

Division of Workers’ Compensation determination that the petitioner maintenance mechanic was totally and permanently disabled as the result of work-related injuries affirmed; on May 2, 1999, the petitioner struck the front of his head while he was exiting a metalizer machine; the petitioner’s next scheduled workday was May 9; during the intervening week, the petitioner’s wife saw him vomit and heard him complain of headaches and excessive sensitivity to noise; after the petitioner reported for work on May 9, he went outside for a cigarette break and woke up in the hospital with no recollection of what had happened; the petitioner’s doctor testified that the petitioner had a post-traumatic seizure disorder and a total and permanent disability; the judge of compensation found (1) that the petitioner’s doctor was “very credible,” (2) that his testimony was entitled to greater weight because he was the treating doctor, (3) that the testimony of another doctor corroborated the testimony of the petitioner’s doctor, and (4) that the testimony of the petitioner and his wife was credible; the record “overwhelmingly” supported the judge’s decision.

PRODUCTS LIABILITY
DAVALA v. MID-HUDSON CLARKLIFT OF NEW JERSEY
Appellate Division, A-2578-03T1, January 27, 2006, not approved for publication. (11 pages). Facts-on-Call Order No. 19158

Summary judgment for the defendant lessor reversed and remanded in a products liability action arising from the plaintiff employee’s accident at work; the plaintiff was injured when a leased clamp unit, which was not equipped with rearview mirrors or with an alarm or a strobe light to warn pedestrians that it was backing up, backed into her; the lessor had taken over an existing lease, but it could not be liable based on a theory of successor liability; however, the lessor was a seller under the Products Liability Act and the case law, and there were sufficient facts to defeat its summary judgment motion based on the theory that it failed to warn or failed to take other appropriate steps to inform the plaintiff’s employer about the dangers associated with a clamp unit that was not equipped with the “available and appropriate” back-up alarm.

CIVIL PROCEDURE
POBICKI v. TREUMAN SALES, L.L.C.
Appellate Division, A-1401-04T5, January 27, 2006, not approved for publication. (7 pages). Facts-on-Call Order No. 19159

Denial of the defendant attorney’s second motion to vacate a $130,000 default judgment that was entered against him affirmed; on his first motion, the attorney argued before the New Jersey Supreme Court that the judgment should be vacated based on newly discovered evidence, but the Supreme Court refused to grant relief; the attorney then sought the same substantive relief before the trial court in a second motion, which was denied because the same argument had been presented before the Supreme Court; the attorney again presented his claim about newly discovered evidence to the Supreme Court and informed it that the trial court would not consider his second motion unless the Supreme Court clarified that its earlier refusal to grant relief was based on procedural grounds and not on the merits; however, the Supreme Court denied the attorney’s motion for a clarification; even though the Supreme Court’s denial of review was not a disposition on the merits, the Appellate Division concluded that the attorney’s claim of newly discovered evidence lacked sufficient merit to warrant discussion.

PARENT AND CHILD
SEGARRA v. SOTO
Appellate Division, A-3672-04T2, January 27, 2006, not approved for publication. (28 pages). Facts-on-Call Order No. 19160

Post-divorce-judgment order that granted the defendant father’s motion to relocate the parties’ two children with him to Puerto Rico and that denied the plaintiff mother’s motion for custody affirmed in part, vacated in part, and remanded; as to the two threshold questions, the two-part test under Baures v. Lewis applied to the relocation motion because the father had assumed primary custody of the children after the Division of Youth and Family Services intervened due to the mother’s deteriorating mental health, and the trial court properly denied the mother’s motion for custody; applying Baures, (1) the Appellate Division declined to upset the trial court’s finding that the father had presented sufficient good faith reasons for relocating the children, including his employment opportunities in Puerto Rico and the presence of his extended family there, but (2) the record was insufficient to support the finding that relocation would not be inimical to the best interests of the children because there were “far too many open questions” about the living, schooling, and medical arrangements for the children in Puerto Rico and because the proofs raised “serious doubts” about whether the mother’s relationship with the children could be “feasibly and constructively” maintained.


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