NEW JERSEY LAWYER

DAILY BRIEFING      01/04/2005


News Briefs

REPEAT DWI OFFENDER LAW TAKES EFFECT
Acting Gov. Richard J. Codey rang in the New Year by signing — and thereby immediately putting into effect — a law requiring prosecutors to make sure they and the judge know whether a driver suspected of driving while suspended is a repeat offender. S-1504 was sponsored by Sen. Barbara Buono and Assemblyman Patrick Barnes, both Middlesex County Democrats, and passed unanimously by both houses of the legislature. It’s known as Michael’s Law, after 17-year-old Michael Patripilo of Piscataway who was killed by a drunken driver who had served a six-month suspension instead of the 10 years that should have been imposed. The law requires prosecutors obtain copies of drivers’ records from the Motor Vehicle Commission. The progress of the measure through the legislature overlapped issuance of an Administrative Office of the Courts directive in October that included eight driving offenses for which judges must review driver history abstracts. 1-3-05

FORMER UNION COUNTY JUDGE DIES
Harvey Sam Halberstadter, 68, died Friday at his home in western Massachusetts. A native of Elizabeth, he was a graduate of Duke University and earned a master’s degree from the Sorbonne in Paris. He held a law degree from Rutgers Law School. After a stint in private practice as a partner in Halberstadter and Halberstadter, Gov. Brendan T. Byrne appointed him to the Union County Superior Court in 1977, where he initially handled juvenile and family matters. He was presiding judge briefly before his retirement for health reasons in 1984. He moved to Monterey, Mass., in 1992. 1-03-05

PRIVACY PANEL SEEKS PERSONAL OPT-OUT
The state Privacy Study Commission will include in its final report a recommendation that citizens be able to opt out from allowing their phone number and address to be disseminated by the state. The commission was formed as part of the Open Public Records Act in 2001, when legislators became concerned that with more government documents being made public, more and more private information might be included. The commission voted on its report in a teleconference on New Year’s Eve, with no date set for when the report would be made public. 1-3-05

DRUG COMPANY DENIES HIDING PROZAC DATA
Eli Lilly & Co. is disputing a report in the British Medical Journal that it knew in the 1980s that its anti-depressant Prozac heightened the risk of violence and suicide attempts. The journal said it has provided the Food and Drug Administration with reportedly missing documents that had been part of a 1994 lawsuit against Lilly involving a man who, while on the medication, fatally shot eight co-workers and himself in Louisville. According to the journal, one of the documents said fluoxetine, Prozac’s generic name, caused “behavioral disturbances” in clinical trials. In a statement, the company said, “Lilly has consistently provided regulatory agencies worldwide with results from both clinical trials and post-marketing surveillance — safety monitoring after drug approval — including those related to fluoxetine. Based on this, Lilly believes that there is no new scientific information to review on this topic.” 1-3-05

FEDERAL JUDGES GET 2.5 PERCENT RAISES
While federal court administrators are declaring ongoing panic about staffing and paying other bills, federal judges have received a modest pay raise of 2.5 percent. Circuit judges will go from $167,600 to $171,800. District, trade and federal claims judges go from $158,100 to $162,100 and magistrates and bankruptcy judges from $145,452 to $149,132. In the meantime, federal judges nationwide will get by with about 1,800 fewer employees than a year ago. 1-3-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, MONDAY, JANUARY 3, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, JANUARY 3, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON TUESDAY, JANUARY 4, 2005.


APPROVED FOR PUBLICATION
DOMESTIC VIOLENCE
PETERSON v. PETERSON
Appellate Division, A-1673-03T1, approved for publication January 3, 2005. (15 pages). Facts-on-Call Order No. 92239

In a domestic violence case, the failure of the Family Part to afford the defendant essential procedural safeguards, including the right to cross-examine adverse witnesses and the right to present witnesses in his own defense, deprived the defendant of his constitutional right to due process and to a fair trial.

INSURANCE
RAHWAY HOSPITAL v. HORIZON BLUE CROSS BLUE SHIELD OF NEW JERSEY
Appellate Division, A-4619-02T5, approved for publication January 3, 2005. (20 pages). Facts-on-Call Order No. 92240

The Commissioner of Banking and Insurance incorrectly construed N.J.S.A. 17:48E-10(a)(2) of the Health Services Corporation Act to require that the plaintiff hospital accept contract “payment rates” instead of out-of-network rates for defendant Horizon Blue Cross Blue Shield’s non-HMO subscribers who were provided care during the four-month period following the termination of the health care services agreement between the plaintiff and the defendant. The Appellate Division suggested that the Legislature review the applicability of §17:48E-10(a) to agreements between health service corporations and hospital providers.

CRIMINAL TRIALS
STATE v. TOWNSEND
Appellate Division, A-4898-02T4, approved for publication January 3, 2005. (52 pages). Facts-on-Call Order No. 92241

The lapse of more than 20 years between the homicide and the indictment of the defendant did not violate due process or fundamental fairness. However, the State’s use of Battered Women’s Syndrome expert testimony to rebut the victim’s dying declaration exonerating the defendant was error where the State’s expert could not conclude that this defendant actually had the diagnosis of Battered Women’s Syndrome because she did not have sufficient indicia of it.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
McNEALLY v. PEREZ
Appellate Division, A-3832-02T2, January 3, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17470

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA and denial of the plaintiff’s motion for reconsideration affirmed; the 43-year-old plaintiff failed to establish through objective medical evidence that the accident caused injuries that had a serious impact on his life where his medical records did not indicate (1) that there was any nerve root impingement associated with his mild disc herniation or (2) that the reduction in his exercise routine was “anything other than self-imposed.”

PREMISES LIABILITY
SCHIERLE v. SHELBY’S
Appellate Division, A-743-03T5, January 3, 2005, not approved for publication. (22 pages). Facts-on-Call Order No. 17471

Jury verdict for the defendant department store in a personal injury action reversed and remanded for a new trial on the issue of proximate cause; the plaintiff fell in a hole in the sidewalk directly in front of the defendant’s entrance; the jury found the defendant negligent, but it also found that the defendant’s negligence was not the proximate cause of the plaintiff’s fall; contrary to the plaintiff’s argument on appeal, the trial court did not err by ruling that the defendant’s medical expert did not render a net opinion and that the reports submitted by the defendant’s experts were timely; however, the trial court erred by admitting evidence of the plaintiff’s other falls because there was no evidence of a connection between those other falls and the plaintiff’s peripheral neuropathy.

HUSBAND AND WIFE
SCARPA v. SCARPA
Appellate Division, A-3056-03T1, January 3, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 17469

Denial of the defendant ex-wife’s motion to compel the plaintiff ex-husband to increase his child support payments and denial of her motion for reconsideration remanded; the plaintiff moved (1) to amend the parties’ 1995 divorce judgment to provide for cost-of-living adjustments to the defendant’s child support obligation and (2) to increase the defendant’s obligation based on the children’s maturation, the increased cost of living since the divorce judgment, and the defendant’s increased income; although the Family Part correctly determined that the disparity between the parties’ incomes had not substantially changed, it erred because the record did not clearly show that it had considered the defendant’s arguments regarding the children’s maturation and the increased cost of living.

HUSBAND AND WIFE
ROSS v. ROSS
Appellate Division, A-3382-03T5, January 3, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17473

Order denying the defendant ex-husband’s post-divorce-judgment motion to temporarily eliminate or reduce his alimony obligation and to recalculate his child support payments based on a claim of changed circumstances affirmed substantially for the reasons expressed by the Family Part; the defendant’s position in service market sales was eliminated, and he asserted that he was not able to find comparable employment but that he intended to build his martial arts business while looking for employment; the Family Part properly concluded that, when the defendant filed his motion, he was entitled to a $25,000 severance package, that he had not shown that comparable employment was unavailable, and that he failed to demonstrate that his career change was necessary and appropriate; the defendant’s motion was premature, and he failed to show that he had made a good faith effort to meet his financial obligation to the plaintiff ex-wife and his children.

DRUNK DRIVING
STATE v. DARBY
Appellate Division, A-2662-03T2, January 3, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 17472

Conviction of driving while intoxicated following a trial de novo in the Law Division affirmed; contrary to the defendant’s argument on appeal, the municipality’s “selective videotaping procedure,” which excluded the Breathalyzer from the camera’s view, was not in bad faith and did not violate due process; under the case law, the police do not have a duty to create evidence by videotaping suspected drunk drivers, and there was no evidence in this case of bad faith or “connivance” on the part of the police; furthermore, despite advances in technology, there was no reason to re-examine State v. Gordon, which held that even the loss of a “drunken-driving videotape does not automatically deprive a defendant of due process.”

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