NEW JERSEY LAWYER

DAILY BRIEFING      10/17/2005


News Briefs

APPELLATE COURT TO HEAR JAYSON WILLIAMS RETRIAL MATTERS
The Appellate Division hears arguments Tuesday related to one unresolved charge from the 2002 shooting involving former pro basketball star Jayson Williams. The state will argue for admitting new evidence in a retrial for reckless manslaughter; the defense will argue a retrial would be double jeopardy. A Somerset County jury in June 2004 cleared Williams of aggravated manslaughter in the shooting death of a chauffeur at Williams’ mansion, convicted him of trying to cover up the man’s death as a suicide, but was unable to reach a verdict on the reckless manslaughter charge. Somerset County Judge Edward M. Coleman late last year rejected the state’s motion to admit evidence on Williams’ post-shooting conduct and on his past use of firearms in a retrial for reckless manslaughter, and rejected the defense assertion of double jeopardy and its objection to admitting certain evidence. 10-14-05

THE GO-TO LEGAL TEAMS FOR CORZINE AND FORRESTER
When voters choose between gubernatorial candidates Jon S. Corzine and Douglas Forrester, they’ll also determine which lawyers play a key role in state government the next four years. The legal go-to team likely to emerge in Trenton if Democrat Corzine wins would include Paul Josephson of Princeton’s Hill Wallack, Angelo J. Genova of Genova Burns & Vernoia in Livingston and Newark attorney Morton J. Goldfein, counsel for Corzine for Governor Inc. If Republican Forrester wins, keep an eye on Dorothy A. Harbeck, general counsel for his campaign, Mark D. Sheridan of Florham Park’s Drinker Biddle & Reath and Richard S. Mroz, of counsel at Cherry Hill’s Stradley Ronon Stevens & Young. For a full story, see the Oct. 17 New Jersey Lawyer. 10-14-05

$1.4M VERDICT UPHELD FOR PREGNANT WOMAN INJURED IN AUTO CRASH
Morris County Judge Robert J. Brennan recently denied the defendants’ motion for a new trial in a case in which a jury this summer awarded $1.4 million to a pregnant woman for injuries in a Fairfield car accident. Karen Silverthorne-Kaldy suffered a punctured lung and broke several bones in the head-on crash in May 2000, which also caused her baby to be delivered one month prematurely, according to her lawyers, David L. Johnson and Paul G. Hunczak of Morris, Downing & Sherred in Newton. Alan J. Baratz of Weiner Lesniak in Parsippany defended in Silverthorne-Kaldy v. Menella. 10-14-05

LAWYERS PRAISE JURORS’ QUESTIONS IN VIOXX TRIAL
Atlantic County Judge Carol E. Higbee is drawing a favorable response from the bar for allowing jurors to ask tough questions in the Vioxx trial she’s presiding over. “I’m very encouraged by the juror’s questions. I wouldn’t want them going back to the jury room not having answers,” said Christopher A. Seeger of Newark’s Seeger Weiss, attorney for plaintiff Frederick Humeston, whose suit against Merck & Co. of Whitehouse Station alleges VIoxx caused him to suffer a heart attack. Trial observer John F. Brenner of Newark’s McCarter & English said jurors’ questions are giving “a lot of insight” into their thinking. Jurors write their questions and Higbee selects the ones to ask witnesses. 10-14-05

LAWYERS USING ELECTRONIC DISCOVERY SHOULD BE COMPUTER GEEKS
Chief justices of the nation’s state courts want attorneys in cases whose discovery includes electronic documents to be knowledgeable about the technology producing the documents. The Conference of Chief Justices is developing guidelines that recommend judges instruct attorneys using electronic discovery to know some of the basic operating details of the computers that store and generate the documents being used in trial, and to share some of those details with opposing counsel during case management conferences. A draft of the judges’ recommendations, available on the National Center for State Courts’ website, ncsconline.org, calls for attorneys to know all the systems that may contain documents used in discovery, how data is accessed from those systems and all efforts undertaken to preserve the documents. The conference says its guidelines will provide more guidance on e-discovery than now available in the federal rules for civil procedures. 10-14-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, OCTOBER 14, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, OCTOBER 14, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON MONDAY, OCTOBER 17, 2005.


APPROVED FOR PUBLICATION
ATTORNEY’S FEES
LEVINE v. LEVINE
Appellate Division, A-2596-03T1, approved for publication October 14, 2005. (17 pages). Facts-on-Call Order No. 92697

The Attorney’s Lien Act, N.J.S.A. 2A:13-5, does not authorize a trial court to dismiss a petition for an attorney’s lien based on its preliminary view derived from the evidence presented in the underlying action that the fees claimed by the attorney are excessive. The determination as to whether to enforce an attorney’s lien falls within the trial court’s equitable jurisdiction but must be based on the evidence presented at a plenary hearing and not on the court’s findings on an application for the award of attorney’s fees, to which the attorney was not a party.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
NORRIS v. ALTAMAR
Appellate Division, A-1693-04T2, October 14, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18658

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded for trial; the trial court concluded that the plaintiff’s injuries did not have a serious impact on her life and that the report of one of her doctors did not state that the injuries revealed on one of her MRIs were caused by the accident; the defendants conceded that the plaintiff was not required to demonstrate that her injuries had a serious impact on her life in light of the New Jersey Supreme Court’s recent decisions in DiProspero v. Penn and Serrano v. Serrano; there was no merit to the defendants’ arguments on appeal (1) that the plaintiff had not produced evidence that the herniated disc revealed on her two most recent MRIs was caused by the accident and (2) that the plaintiff’s experts were required under Polk v. Daconceicao to explain her first MRI, which was normal.

MEDICAL MALPRACTICE
MARTIN v. LITHOTRIPSY TREATMENT GROUP
Appellate Division, A-1820-04T3, October 14, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18659

Judgment of no cause of action after a jury verdict and denial of the plaintiff patient’s motion for a new trial reversed and remanded for trial in an action arising from the patient’s fall from a stretcher as she attempted to move onto a treatment table; the jury found that the defendant medical facility was negligent but that its negligence was not a proximate cause of the fall; the core of the proffered testimony of the patient’s expert was that the applicable standard of care required the facility’s nurse to stay at the foot of the stretcher to prevent the patient from falling and that the nurse’s deviation from that standard proximately caused the fall and the patient’s injuries; the trial court erred by excluding the proffered testimony because N.J.R.E. 702 must be considered in light of whether the testimony would have been helpful to the jury.

ARBITRATION
ANTONELLI v. LIPMAN, ANTONELLI, BATT, DUNLAP, WODLINGER AND GILSON
Appellate Division, A-2611-04T2, October 14, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18660

Dismissal of the plaintiff executrix’s breach of contract action against the defendant law firm and referral of the matter to arbitration affirmed; the decedent was the majority shareholder of the firm, and the firm’s attorneys had entered into a shareholder agreement that included an arbitration provision; the executrix sought (1) to recover death benefits, back wages, life insurance proceeds, money that the decedent allegedly had paid to the firm, and consequential damages and (2) to compel the firm to purchase the decedent’s outstanding stock shares; the trial court properly held that the executrix’s claims arose out of the agreement and therefore were subject to the arbitration provision; the executrix’s contention that the firm had waived its right to enforce the arbitration provision lacked merit.

CIVIL ACTIONS
HARVEY v. LUPINACCI
Appellate Division, A-6887-03T1, October 14, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18661

Order that restrained the defendant from committing future acts of practicing medicine without a license in violation of N.J.S.A. 45:9-22 and consumer fraud in violation of N.J.S.A. 56:8-2 and that required him to pay a civil penalty plus costs and fees after a finding that he had committed both violations, as alleged by the plaintiff Attorney General’s complaint, affirmed; the defendant’s license to practice medicine had been revoked, and he worked at a health shop; the evidence supported the finding that the defendant used the titles “M.D.” and “doctor” while presenting himself to a customer as being able to diagnose and treat her condition; proof of the license revocation and the customer’s testimony established all of the elements of both alleged violations; there was no merit to the defendant’s arguments on appeal that the trial court was prejudiced and biased and that he had received substandard representation from his attorney.

CIVIL ACTIONS
COMMERCE BANK/NORTH v. YURESKO
Appellate Division, A-6096-03T5, October 13, 2005, not approved for publication. (17 pages). Facts-on-Call Order No. 18656

Dismissal of the ex-husband’s fraud claims against the ex-wife and her attorney on summary judgment and of the ex-husband’s claims against the bank at the close of his case affirmed; the fraud claims alleged in part that the ex-wife and her attorney failed to disclose a 20-year-old release during the divorce proceedings; the claims against the bank alleged, among other things, that a real estate broker and his attorney were agents of the bank whose conduct violated the implied covenant of good faith in connection with the sale of the ex-husband’s real property; as to the ex-wife’s attorney, the ex-husband’s appeal was dismissed on procedural grounds; as to the ex-wife, summary judgment was appropriate because the ex-husband could not indirectly enforce the release under the guise of a “non-existent fraud claim” against the ex-wife after forfeiting his right to enforce it directly; as to the bank, there was no merit to the ex-husband’s argument on appeal that the issue of agency should have been submitted to the jury.

PUBLIC EMPLOYMENT
SADDLE BROOK PBA LOCAL 102 v. TOWNSHIP OF SADDLE BROOK
Chancery Division, Bergen County, C-125-05, September 29, 2005, released October 3, 2005, not approved for publication. By Escala, P.J. (10 pages). Facts-on-Call Order No. 18657

Arbitration award that denied the plaintiff union’s grievance for overtime compensation confirmed; the arbitrator determined that the defendant Township did not violate the parties’ collective bargaining agreement by failing to pay police officers time and a half for hours spent on a temporary surveillance assignment at a cemetery overnight after incidents of vandalism had occurred there; the union did not sufficiently prove any grounds under N.J.S.A. 2A:24-8 to justify vacating the arbitration award; contrary to the union’s argument, the issue of the police chief’s authority to establish a temporary shift was not before the arbitrator, and, even if it was, the union did not adequately demonstrate that the arbitrator made a mistake of law; the arbitrator’s interpretation of the CBA was “reasonably debatable,” and the Chancery Division therefore was bound to enforce it.

REAL PROPERTY
REY v. COUNTY OF HUNTERDON
Law Division, Hunterdon County, HNT-L-599-03, released October 3, 2005, not approved for publication. By Reed, J. (20 pages). Facts-on-Call Order No. 18655

Judgment for the plaintiff landowners after a bench trial on their complaint for a declaration that the defendant County’s option to purchase an easement restricting development rights on their land was void because it had expired without being validly exercised; the landowners granted the option to the County after the County chose their land to be considered for the New Jersey Farmland Preservation Program; the trial court concluded (1) that it was not bound by any conclusions reached by the judge who had denied the parties’ pretrial motions for summary judgment, (2) that the County gave effective notice of its intent to exercise the option, and (3) that the County did not properly exercise the option in accordance with its terms because it had prepared a contract that included a contingency that was not specified in the option.


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Now you can order the full text of these decisions directly from the Daily Briefing. Just click on the Facts-on-Call Order Number and the order page will open. And of course you still can order by phone by calling 1-800-670-3370. (A PIN number is required to use the service. If you need a free PIN Number, call 800-310-8678.)


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