NEW JERSEY LAWYER

DAILY BRIEFING      11/02/2005


News Briefs

E-MAIL MUST FOLLOW LAWYER ADVERTISING RULES
Solicitation e-mail must follow the same rules as any other mail solicitation, according to the New Jersey Supreme Court’s Committee on Attorney Advertising. For instance, e-mail should have the same prescribed wording as in other mailings, such as “Advertisement” in capital letters at the top and bottom of the page, along with the following, “Before making your choice of any attorney, you should give this matter careful thought. The selection of an attorney is an important decision.” The full rules are spelled out in Attorney Advertising Guidelines 1 and 2, and in Rules of Professional Conduct 7.2, 7.3 and 4.2. 11-1-05

MONMOUTH COUNTY MAN CAN’T SUE COPS FOR SLUR ARREST
The legal battle of a man who on Sept. 11, 2001 painted an anti-Arab slur on his truck came to an end this week as the U.S. Supreme Court refused to hear his appeal from lower federal court rulings declaring he could not sue Marlboro police officers who charged him with a bias crime. After he was acquitted, Paul Schlaflin of Morganville tried to sue the officers who arrested him. The 3rd U.S. Circuit Court of Appeals in April said in Schlaflin v. Borowsky that while the law under which he was arrested was repealed for constitutional concerns, the Marlboro police acted reasonably in trying to enforce it. 11-1-05

WASHINGTON STATE HEADED FOR MED-MAL SHOWDOWN
On election day, Washington voters have two choices for dealing with rising medical malpractice premiums: caps, or going after doctors who may be ratcheting up the cost of malpractice coverage. Initiative 336, setting a cap of $350,000 for non-economic damages, is backed by the Washington State Medical Association. Initiative 330, backed by lawyers, would pull the licenses of doctors whose negligence killed or seriously injured three patients. It also would make public court awards and out-of-court settlements against doctors. Both groups say their initiative would lower premiums while their opponents’ would backfire. That state’s insurance commissioner doesn’t like either package, saying he hopes both fail and the problem goes to the legislature where a more detailed plan could be devised. 11-1-05

DOW SETTLEMENT DROPS WINDFALL ON VANDERBILT LAW
Even though it wasn’t party to the suit, Vanderbilt University Law School received $2.9 million in a class-action settlement. In Lankford v. Dow Chemical, plaintiffs in 29 states alleged three companies fixed prices of Neoprene, a synthetic rubber. The companies settled with no admission of liability. After the Tennessee Circuit court decided it was impossible to determine the individuals harmed, it ruled the money should go to a charity. Vanderbilt will use the funds for its civil and dispute resolution program. 11-1-05

INJUSTICE AT WORK COULD BREAK YOUR HEART, LITERALLY
More angina, heart attacks and death from coronary artery disease may be lurking in the future for those who feel they’re treated unjustly at work. A Finnish study of 6,400 men showed that those who perceived a low level of justice in their workplace had 30 percent more heart problems than those who said they were treated fairly. Fewer of them were married, more were overweight and they tended to have worse jobs. The lead author of the study, published in the recent Archives of Internal Medicine, said giving more control to employees, such as collaborative decision-making, might help relieve the sense of injustice. Perhaps getting a spouse and eating fewer carbs might help, too. 11-1-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, NOVEMBER 1, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, NOVEMBER 1, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON WEDNESDAY, NOVEMBER 2, 2005.


APPROVED FOR PUBLICATION
MUNICIPAL CORPORATIONS
JORDAN v. HARVEY
Appellate Division, A-174-04T2 and A-202-04T2, approved for publication November 1, 2005. (9 pages). Facts-on-Call Order No. 92711

The position of municipal police director is civilian; therefore, a municipality may not confer law enforcement powers on its police director.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
HACKING v. HIMMELBURGER
Appellate Division, A-2451-03T3, November 1, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18749

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; after the plaintiff received three months of treatment for his injuries, he was injured in a second accident; reversal and remand were required in light of DiProspero v. Penn and Serrano v. Serrano because summary judgment was based on the trial court’s conclusion that the plaintiff had not demonstrated a “substantial impact” on his life; on remand, the parties should focus on whether the plaintiff’s herniated disc constituted a “permanent injury” pursuant to §39:6A-8a based on the objective medical evidence; no comparative analysis under Polk v. Daconceicao was required because the plaintiff’s claim related to a permanent injury that preceded his second accident and because objective medical evidence concerning permanency had been developed before the second accident.

VERBAL THRESHOLD
HARRISON v. LORA
Appellate Division, A-2452-03T5, November 1, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18750

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; the trial court dismissed the complaint because it found that the plaintiff had not satisfied the subjective prong of the Oswin v. Shaw test, which required her to demonstrate that her injury had a serious impact on her life; given that finding, the trial court reached no conclusion about the objective prong to determine whether the plaintiff’s injury fell within one of the §39:6A-8a categories; reversal and remand were required in light of the New Jersey Supreme Court’s recent decisions in Serrano v. Serrano and DiProspero v. Penn, which held that AICRA eliminated the serious-impact requirement of Oswin.

VERBAL THRESHOLD
JONES v. FLORES
Appellate Division, A-802-04T2, November 1, 2005, not approved for publication. (2 pages). Facts-on-Call Order No. 18751

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; the trial court held that the plaintiff failed to establish that the injuries from her accident with the defendants had a serious impact on her life; reversal and remand were required in light of the New Jersey Supreme Court’s recent decision in DiProspero v. Penn, which held that an automobile accident victim who is subject to the verbal threshold and sues to recover noneconomic damages must demonstrate one of the six categories specified in AICRA but need not prove a serious life impact.

MEDICAL MALPRACTICE
McKINLESS v. FRANCIS
Appellate Division, A-5971-03T2, November 1, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18752

Denial of the plaintiff patient’s motion for a new trial after a jury verdict of no cause of action on his nursing malpractice complaint affirmed; the patient, who had undergone triple bypass surgery and had been ordered to stay in bed by his doctor, asserted that he suffered “substantial complications” after he fell while the defendant nurse assisted him to and from the bathroom; the jury found that the nurse had deviated from the standard of care but that the deviation was not the proximate cause of the patient’s complications; a reasonable jury could have reached those findings based on the evidence, which included the nurse’s testimony that the fall did not affect the patient’s chest area and the testimony of the doctor that it was “very difficult to say” what caused the patient’s wound to separate; under the standards that govern motions for a new trial, there was no miscarriage of justice.

PUBLIC MEETINGS
NEVIN v. ASBURY PARK CITY COUNCIL
Appellate Division, A-2124-04T2, November 1, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 18753

Order dismissing a complaint in lieu of prerogative writs that challenged the adoption of a municipal ordinance affirmed; the plaintiffs sought relief based on the municipal defendants’ alleged violation of the Open Public Meetings Act that occurred when they allowed the defendant redeveloper to participate in closed sessions at which the proposed ordinance was discussed; the defendants argued that the closed sessions attended by the redeveloper fell within the OPMA exception for contract negotiations, but that exception applies to discussions about contract negotiations by the public body, not to contract negotiations with a nongovernmental opposing party; nevertheless, the later public session at which the proposed ordinance was discussed fully and was then adopted constituted “corrective or remedial action” that brought the adoption into compliance with OPMA.

DRUNK DRIVING
STATE v. CAMPBELL
Appellate Division, A-4299-04T1, November 1, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18754

Law Division decision and order that suppressed evidence of the defendant’s intoxication and remanded the matter to the Municipal Court for further proceedings in a prosecution for driving while intoxicated affirmed; an off-duty police officer stopped the defendant because he allegedly saw the defendant drive through a red signal and thought that the defendant’s vehicle struck the officer’s vehicle; a second police officer who was called to the scene issued a summons and arrested the defendant for DWI; the defendant argued that the first police officer lacked a reasonable and articulable suspicion for stopping him; the Municipal Court found the first officer credible and denied the motion, but the Law Division on an appeal de novo reached a different conclusion about the credibility of the testifying witnesses; the findings of the Law Division were based on sufficient credible evidence in the record.

APPELLATE PROCEDURE
D’ALESSANDRO v. WHITE
Appellate Division, A-2335-04T1, October 31, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18748

Appeal from Special Civil Part orders that denied the pro se plaintiff’s motion to amend a judgment in his favor to include prejudgment interest dismissed as untimely; the plaintiff timely moved to amend the judgment under Rule 4:49-2 to include prejudgment interest, but he never appealed from the January 7, 2004 denial of his motion; instead, the plaintiff again moved for prejudgment interest eight months later, this time invoking Rule 4:50-1, but that motion was denied on December 15, 2004; although the plaintiff appealed from the December 2004 order, his “real challenge” was to the January 2004 order, which was a final judgment that had to be appealed within 45 days under Rule 2:4-1(a); the plaintiff’s “maneuvering” could not avoid the strict time limits of Rule 2:4-1(a).


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