NEW JERSEY LAWYER

DAILY BRIEFING      10/14/2005


News Briefs

WITNESS HAS POST-TRIAL CHANGE OF MIND
U.S. District Judge Dennis M. Cavanaugh has scheduled an Oct. 21 hearing in Newark on a motion to overturn a court order because a witness changed his mind. Honeywell wants Cavanaugh to reduce by half an estimated $400 million land cleanup it’s been ordered to perform in Jersey City because scientist Kirk Brown, a key witness in the underlying case, now says the cleanup as ordered would pose public health risks. Brown, who recently accepted a job with Honeywell, was an expert witness for W.R. Grace, one of Honeywell’s opponents in a 2001 case that resulted in the order for the cleanup of all chromium waste at a 34-acre site. Brown originally had testified capping the site would be inadequate and that all of the contaminant had to be removed. Now, though, he advocates removing just 47 percent of the waste and capping the rest, which would cost an estimated $200 million. 10-13-05

SUPREME COURT TO HEAR RETARDATION BURDEN OF PROOF CASE
The New Jersey Supreme Court has agreed to hear a case regarding prosecutors’ burden for disproving a claim of mental retardation in capital murder cases. The high court will hear the Morris County Prosecutor’s Office’s appeal in State v. Porfirio Jimenez in which the Appellate Division in August ruled the prosecution must prove the absence of mental retardation in order to seek the death penalty. The U.S. Supreme Court in Atkins v. Virginia in 2002 ruled it is unconstitutional to execute a murderer who is mentally retarded, but left it up to states to develop procedures for determining retardation. In the New Jersey case, Porfirio Jimenez, 40, is accused of killing a 10-year-old Morristown boy in 2001. 10-13-05

BAR ASSOCIATION’S FAMILY LAW SECTION SEEKS AWARD NOMINATIONS
The New Jersey State Bar Association’s Family Law Section is accepting nominations for this year’s Tischler Award. The section will present the award based on criteria that includes contribution to the development of family law and involvement in various activities focusing on the practice area. For further information, contact Hackensack attorney Madeline Marzano-Lesnevich at (201) 342-2322 or les HYPERLINK "mailto:nevich@msn.com" nevich@msn.com. The deadline for nominations is Oct. 31. 10-13-05

FED BILL PUSHED FOR MANDATORY ARBITRATION OF MED-MAL CASES
Medical malpractice claims would be required to go to arbitration before trial under a bill proposed by U.S. Rep. Robert E. Andrews (D-NJ). H.R. 3865 would create medical malpractice arbitration panels with marching orders that include identifying and dismissing frivolous suits. The bill also would allow parties to sue if they are dissatisfied with the arbitration results. The Justice and Health and Human Services departments would develop the rules. 10-13-05

DUANE MORRIS INCREASES BAY AREA PRESENCE
Philadelphia-based mega firm Duane Morris, which has some 35 attorneys at offices in Newark and Princeton, is expanding its presence in San Francisco by acquiring Hancock Rothert & Bunshoft, a 60-lawyer insurance specialist. Once the deal takes effect Jan. 1, Duane Morris will have more than 600 lawyers in 19 offices. The firm, which opened a London office in 2000, also plans to expand into Japan. 10-13-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, OCTOBER 13, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, OCTOBER 13, 2005:

CONSPIRACY
STATE v. PEREZ
New Jersey Supreme Court, A-86, October 13, 2005. (9 pages). Facts-on-Call Order No. 92690

In a prosecution arising from a scheme to obtain fraudulent motor vehicle documents, the defendant was properly charged and convicted of conspiracy to commit official misconduct because his co-conspirator was performing governmental functions at the time of the conspiracy and therefore was subject to the official misconduct statute, even though the co-conspirator was not a State employee but was employed by a corporate entity with which the State had contracted to operate a Department of Motor Vehicles office.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, OCTOBER 14, 2005.



APPROVED FOR PUBLICATION
INSURANCE
MISKELLY v. LORENCE
Appellate Division, A-4884-03T3, approved for publication October 13, 2005. (10 pages). Facts-on-Call Order No. 92691

Although the plaintiff does not have to satisfy the N.J.S.A. 39:6A-8a verbal threshold to recover for economic losses, the jury’s finding of no permanent injury precluded the award of future lost wages in an action where the plaintiff claimed to have a permanent brain injury and cognitive disabilities.

LAW AGAINST DISCRIMINATION
DeWEES v. PERNOT
Appellate Division, A-3034-02T3, approved for publication October 12, 2005. (27 pages). Facts-on-Call Order No. 92692

The trial court articulated the correct standard for reviewing the defendant employer’s summary judgment motion in an action under the Law Against Discrimination alleging gender and age discrimination, but the motion was improperly granted because the trial court did not actually consider whether the plaintiff executive had produced sufficient evidence to enable a jury to find that the employer’s proffered reasons for her termination were false.

SETTLEMENTS
WALLACE v. SUMMERHILL NURSING HOME
Appellate Division, A-6419-03T1, approved for publication October 12, 2005. (4 pages). Facts-on-Call Order No. 92693

In a workers’ compensation case, the judge of compensation erred when he refused to set aside a settlement agreement between the parties that was based on a mutual mistake of fact where the attorneys who had negotiated the settlement did not know that the injured employee had received voluntary compensation payments that totaled more than the amount of the settlement.

MENTAL HEALTH
IN RE A.A.
Chancery Division, Somerset County, SOM-C-12024-05, approved for publication October 11, 2005. (10 pages). Facts-on-Call Order No. 92694

In the context of a request for electroconvulsive therapy for an involuntarily committed patient who had executed an advance directive for her health care and had designated her daughter as the decision maker, the formal procedures normally mandated before the involuntary administration of ECT were unnecessary because the decision maker’s consent under the Advance Directives for Health Care Act substituted for the patient’s consent.

EVIDENCE
STATE v. GODSHALK
Law Division, Camden County, Appeal No. 10-2005, approved for publication October 11, 2005. (10 pages). Facts-on-Call Order No. 92695

Crawford v. Washington — in which the U.S. Supreme Court announced the Sixth Amendment ban on the admission of “testimonial” hearsay statements of a witness who is unavailable at trial — should apply to quasi-criminal prosecutions such as drunk driving cases, but it does not bar the admissibility of a law enforcement agency’s business records.

ATTORNEYS
NEW JERSEY STATE BAR ASSOCIATION v. STATE OF NEW JERSEY
Chancery Division, Union County, UNN-C-1-05, approved for publication October 11, 2005. (54 pages). Facts-on-Call Order No. 92696

In an action challenging the New Jersey Medical Care Access and Responsibility and Patients First Act, the Chancery Division granted summary judgment for the defendant State of New Jersey and its officials after addressing whether the State should be permanently enjoined from collecting the $75 annual assessment against attorneys prescribed by the Act due to constitutional violations, whether the Act violated the separation of powers doctrine in the New Jersey Constitution, and whether a finding that an individual provision of the Act was unconstitutional required the entire Act to be declared unconstitutional.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
TIMKO v. DiFALCO
Appellate Division, A-6775-03T5, October 13, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18653

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; applying Oswin v. Shaw, the trial court concluded that the objective, credible medical evidence of the plaintiff’s injuries was sufficient to demonstrate that she had sustained a permanent injury but that her injuries were not sufficiently serious to satisfy the serious impact requirement; reversal and remand were required in light of the New Jersey Supreme Court’s recent decisions in DiProspero v. Penn and Serrano v. Serrano, which held that there is no serious impact requirement under AICRA.

VERBAL THRESHOLD
WILLIAMS v. ILLGE
Appellate Division, A-1950-04T3, October 13, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18654

Denial of the plaintiff’s motion under Rule 4:50-1 for relief from a summary judgment order that dismissed her automobile negligence complaint affirmed; summary judgment was entered because the plaintiff lacked an expert report to causally relate her hip replacement surgery to her automobile accident; after the plaintiff’s pro se appeal was dismissed because she did not file an appellate brief, she obtained a new attorney, who filed the Rule 4:50-1 motion and a physician’s certification to support it; the motion court properly rejected the plaintiff’s claims that the certification constituted newly discovered evidence and that the interests of justice warranted relief; among other things, the certification was “substantively deficient and would not have changed the outcome.”

WORKERS’ COMPENSATION
GRZYB v. MIDDLESEX COUNTY VOCATIONAL SCHOOL
Appellate Division, A-2845-03T2, October 13, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18652

Dismissal of the petitioner teacher’s claim for workers’ compensation benefits affirmed; on January 13, 1998, the teacher suffered a heart attack that he attributed to two incidents that occurred at school that day, and his medical expert testified that those incidents caused the heart attack; however, the judge of compensation (1) found that the teacher’s testimony lacked veracity after considering medical records that indicated that the teacher had experienced “severe” chest pain on the day before his heart attack and (2) accepted the opinion of the respondent school’s medical expert that the teacher’s actual infarction occurred at least 24 hours before the two incidents; the judge’s findings and conclusions were supported by the record.

INSURANCE
STANDARD FUNDING CORP. v. UNIVERSAL ROADMASTER, INC.
Appellate Division, A-4106-03T2, October 12, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18648

Judgment for the plaintiff lender after a bench trial on its claim for the return of unearned insurance premiums that it had paid on behalf of the defendant insured, which was a trucking company, affirmed; as part of its loan arrangement with the insured, the lender retained a security interest in the return of unearned premiums up to the unpaid balance on the loan; the lender paid the full premium for one year of coverage, but the policy was canceled after 149 days; the trial court rejected the defendant insurer’s attempt to establish that the insured had misrepresented the number of vehicles in its fleet and that the insurer therefore was entitled to recalculate the premium; the insurer failed to present competent evidence that the insured owned additional vehicles during the policy period, and it was not entitled to assess additional premiums based on its obligations under federal law; the trial court did not abuse its discretion by denying the insurer’s post-trial motion to “supplement the record.”

NEGLIGENCE
CHUNGA v. WELLS FARGO AUTO
Appellate Division, A-2353-03T5, October 12, 2005, not approved for publication. (21 pages). Facts-on-Call Order No. 18649

Judgment of $853,687.50 for the plaintiff pedestrian after a jury trial and denial of the defendant driver’s motion for a new trial on all issues affirmed in an action for injuries sustained by the pedestrian when he was struck by the driver’s automobile; the jury found that both parties were negligent, that the driver’s negligence was a proximate cause of the accident, but that the pedestrian’s negligence was not a proximate cause; contrary to the driver’s arguments on appeal, (1) the trial court did not err by admitting the late report of the pedestrian’s toxicologist, by denying the driver’s request to bar testimony about his alcohol consumption, and by denying his motion to bar the toxicologist’s testimony as a net opinion, (2) the jury’s liability verdict was not “a manifest denial of justice under the law,” and (3) the jury’s damages verdict was “generous” but was not excessive because it was supported by the record.

CIVIL ACTIONS
BROWNE v. KIMBALL MEDICAL CENTER
Appellate Division, A-4907-03T5, October 12, 2005, not approved for publication. (17 pages). Facts-on-Call Order No. 18650

Summary judgment for the defendant police officers, the defendant police department, and the defendant health care providers in an action arising from the plaintiff’s involuntary commitment affirmed substantially for the reasons expressed by the trial court; the plaintiff left one defendant health care facility, but when he refused to return after being found in the woods in a “disoriented” state, he was transported in a police car to another defendant health care facility; he was involuntarily committed to a third defendant health care facility; among other things, the plaintiff argued on appeal that his arrest was improper because the officers lacked probable cause; the officers were entitled to immunity under N.J.S.A. 30:4-27.7 and Ziemba v. Riverview Medical Ctr. because they “clearly” acted in good faith and took reasonable steps to effect the commitment; the plaintiff’s claim that the officers’ affidavits did not establish sufficient grounds under N.J.S.A. 30:4-27.6 to justify their actions was “without merit.”

CONTRACTS
LOUROS v. DIMITRIOU
Appellate Division, A-5665-03T5, October 12, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18651

Order entered on remand that dismissed the plaintiff estate’s foreclosure complaint, discharged the mortgage between the parties, and entered a money judgment for the plaintiff affirmed; in its prior decision, the Appellate Division remanded for findings of fact and conclusions of law on the issue of accord and satisfaction but otherwise affirmed a judgment for the plaintiff; on remand, the trial court found that the alleged final payment by the defendants to the decedent was not an accord and satisfaction of their debt because writing “final payment” on a check sent to the decedent, who did not read English, was “meaningless”; the trial court’s findings were supported by the record, and its application of the law to the facts was sound.


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