NEW JERSEY LAWYER

DAILY BRIEFING      12/20/2005


News Briefs

UNLIKELY ALITO SUPPORTERS
“Politics makes strange bedfellows” once again proves true. There are two unlikely names on a list of 64 supporters and friends being circulated by the conservative group Progress for America as folks who are willing to speak on behalf of the U.S. Supreme Court nomination of Samuel A. Alito Jr. — former U.S. Attorney Robert J. Del Tufo and Seton Hall University School of Law Professor Paula Ann Franzese. Del Tufo, a Democrat who also served as attorney general, is a confidante of Gov.-elect Jon S. CorzIne, who’s no fan of Alito’s. For four years when he was an assistant U.S. attorney in Newark, Del Tufo was Alito’s boss. Franzese, special ethics co-counsel for acting Gov. Richard J. Codey, and Del Tufo are on another list: Corzine’s special ethics panel. Corzine’s chief of staff, Tom Shea, isn’t concerned the pair are listed as Alito supporters. “We’re asking them to advise us on ethics, not to vote on a Supreme Court nominee,” Shea told The Star-Ledger of Newark. 12-19-05

JURORS DELIVER VERDICT, THEN PRESENTS
Members of a Denver jury wrapped up a child-molestation trial with a guilty verdict and then some: Christmas presents and food gift certificates. Jury forewoman Jennifer Volk, a lawyer, asked the judge after the trial ended if she could purchase gifts for the family of the 10-year-old victim. The trial judge said yes and two other jurors offered to chip in. A word-of-mouth fund-raising campaign began and colleagues at Volk’s law firm offered to contribute, as well. She raised $500. Contacted by police, the family provided a “wish list.” Denver police detective Ken Klaus said it was the first time in his 20-year career that he has seen jurors do this. “Instead of just turning and running … they said, ‘Wait a minute. This family was traumatized.’ And they went and did something about it,” Klaus told the Denver Post. 12-19-05

LENGTHY MALPRACTICE TRIAL ENDS IN ACQUITTAL
Federal prosecutors in Vermont are reviewing their options now that one of the longest trials in Vermont history — 3½ months — has ended in the acquittal of a doctor accused of performing unnecessary eye surgeries. Dr. David Chase was cleared by the federal jury of 23 criminal charges. The jurors deadlocked on two counts, leading to chief U.S. District Judge William K. Sessons declaring a mistrial last week. Prosecutors accused Chase of performing cataract surgery on nine patients to defraud private and federal health insurers of more than $1 million. He previously was acquitted of 45 criminal charges of misconduct with 23 other patients who did not have surgery. 12-19-05

ILLINOIS COURT TOSSES MULTI-BILLION-DOLLAR CIGARETTE VERDICT
Philip Morris USA has scored a big win, with the Illinois Supreme Court reversing a $10.1 billion trial court verdict from 2003 against the company. Smokers claimed in a class-action suit the company knowingly marketed “light” cigarettes despite their containing more toxic tar. Madison County Judge Nicholas Byron agreed the company misled consumers and ordered the payment. But Justice Rita Garman and the other justices found that since the Federal Trade Commission allowed the use of the term “light,” Philip Morris could not be held liable for deceit under the Consumer Fraud Act. In an unusual move, the high court heard the case directly, skipping the appeals court. 12-19-05

COURT PULLS BACK OPINION AFTER OVERTURNING CONVICTION
A Houston judge’s unusual letter to the Texas Court of Criminal Appeals has raised new doubts about a convicted mother’s hope to be cleared. The appellate court abruptly withdrew its opinion last week, one day after overturning Brandy Del Briggs’ conviction in connection with the 1999 death of her infant son. The surprise development came after state District Judge Mary Lou Keel faxed a letter to the appeals court, pointing out some errors in its opinion. Harris County District Attorney Chuck Rosenthal said the errors seemed minor and it’s likely the court’s original decision to clear Del Briggs will stand. 12-19-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, MONDAY, DECEMBER 19, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, DECEMBER 19, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON TUESDAY, DECEMBER 20, 2005.


APPROVED FOR PUBLICATION
PRISONS
RAMIREZ v. DEPARTMENT OF CORRECTIONS
Appellate Division, A-2775-04T2, approved for publication December 19, 2005. (12 pages). Facts-on-Call Order No. 92770

In the context of prison disciplinary proceedings, an inmate’s right to a polygraph examination is conditional. An inmate’s request for a polygraph examination should be granted where there is a serious question of credibility and where the denial of the examination would compromise the fundamental fairness of the disciplinary process.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
TRAN v. WARRINER
Appellate Division, A-1702-04T3, December 19, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18980

Summary judgment for the defendants on the plaintiff’s cervical-injury claim based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; the plaintiff, who had a pre-existing injury to the lumbar region, sustained injuries to the cervical and lumbar regions in the accident; the trial court had concluded (1) that there was objective medical evidence of a cervical injury that was causally related to the accident, (2) that the plaintiff failed to establish that the cervical injury had a serious impact on his life because no evidence attributed the alleged serious life impact to the cervical injury rather than the lumbar injury, and (3) that his lumbar-injury claim was barred in the absence of the comparative analysis required by Polk v. Daconceicao; the plaintiff appealed only from the dismissal of his cervical-injury claim, and reversal was required because the New Jersey Supreme Court held in DiProspero v. Penn that proof of a serious life impact is not required under AICRA.

VERBAL THRESHOLD
FEITH v. JOHNSON
Appellate Division, A-2828-04T2, December 19, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18979

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded for trial; the trial court had accepted the defendant’s concession that the plaintiff’s evidence of a permanent injury was sufficient to satisfy the verbal threshold for summary judgment purposes, but it had concluded that the plaintiff did not demonstrate that the injury had a serious impact on his life; reversal was required (1) because the New Jersey Supreme Court’s recent decisions in DiProspero v. Penn and Serrano v. Serrano eliminated the need to demonstrate a serious impact and (2) because the plaintiff’s prima facie evidence of permanency — which consisted of an L4-5 herniation with spasms that continued more than two years after the accident — was the only evidence required to raise a jury issue.

VERBAL THRESHOLD
MONTES v. WARHURST
Appellate Division, A-1667-04T3, December 19, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18981

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA affirmed; summary judgment was proper because neither the plaintiff driver nor the plaintiff passenger presented medical evidence of a permanent injury that was proximately caused by the accident; as to the 58-year-old driver, most of his spinal injuries were degenerative, his remaining injuries were not supported by objective medical evidence, and his doctor’s report did not support a finding that his injuries had not healed or would not heal to function normally with medical treatment; as to the 59-year-old passenger, the objective medical evidence established that the accident had aggravated her pre-existing degenerative spinal condition, but her doctors’ reports concluded that she was improved or was recovering with medication and physical therapy, and her medical proofs therefore did not support a finding that her injuries had not healed or would not heal to function normally with medical treatment.

LAND USE
BARAN v. TOWNSHIP OF PLUMSTED
Appellate Division, A-1497-04T3, December 19, 2005, not approved for publication. (20 pages). Facts-on-Call Order No. 18983

Dismissal of the plaintiff landowners’ action in lieu of prerogative writs that challenged a municipal street-vacation ordinance affirmed; following the Planning Board’s approval of the subdivision of a lot that was located adjacent to and south of the plaintiffs’ property, the ordinance was enacted to vacate the portion of a “traveled sand or earth roadway” located in the lot; contrary to the plaintiffs’ arguments on appeal, (1) the defendant Township Committee was not required to refer the ordinance to the Planning Board for review and comment before it could be considered for adoption, (2) the enactment of the ordinance was not arbitrary, capricious, or unreasonable, and it was supported by a valid public purpose, and (3) the enactment of the ordinance did not cause the two lots that were located adjacent to and south of the plaintiffs’ property to become landlocked.

PARENT AND CHILD
SHAFFER v. SHAFFER
Appellate Division, A-884-04T1, December 19, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18982

Post-divorce-judgment order that required the defendant father to pay $130,973 toward the college expenses of the parties’ daughter affirmed substantially for the reasons expressed by the trial court; the order was based on a finding that the father had misappropriated $130,973 that had been given to his daughter, primarily by her maternal grandfather, under the Uniform Gifts to Minors Act; the father admitted that, during the marriage, he had used funds that were entrusted to him on behalf of his children to support the family lifestyle and to generally benefit the children by paying for summer camp, trips to Aspen, and a $1.4 million home and its furnishings; contrary to the father’s arguments on appeal, the trial court did not err by concluding that he had breached his duty as custodian and fiduciary toward his daughter or by considering the donor’s lack of permission to use the gifts for family purposes to find misappropriation, which is not required by the Act.

JURISDICTION
HYAMS v. HALIFAX PLC
Appellate Division, A-1078-04T3, December 16, 2005, not approved for publication. (23 pages). Facts-on-Call Order No. 18977

Dismissal of the complaint by the four plaintiff account holders due to lack of personal jurisdiction over the defendant banking company and its owner in an action arising from the 1997 demutualization that created the company from its predecessor affirmed in part, reversed in part, and remanded; as to general jurisdiction, the plaintiffs, whose accounts were opened in England, failed to establish the necessary “continuous and systematic contacts” between the defendants and New Jersey; as to specific jurisdiction, (1) it could be exercised over the company on the claims of the plaintiff who was a New Jersey resident when her account was opened and when the demutualization occurred, (2) remand was required to determine whether specific jurisdiction could be exercised over the owner, and (3) specific jurisdiction could not be exercised over the company or its owner on the claims of the two plaintiffs who had “no connection whatsoever” to New Jersey and the plaintiff who did not move to New Jersey until 2001.

SEARCH AND SEIZURE
STATE v. POTTER
Appellate Division, A-2683-04T4, December 16, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18978

Conviction of third-degree possession of heroin reversed; at the suppression hearing, a detective testified that he and several police personnel arrived at a woman’s home with a warrant to search for evidence of check counterfeiting, that they encountered the defendant, who “stood up very abruptly” when the police arrived, that the defendant reached into his pocket “very abruptly and quickly” after a pat-down search for weapons had begun, and that a patdown of the pocket indicated a “hard object, several inches long” that could have been a pocketknife but that upon extraction appeared to be a bag of heroin; the heroin should have been suppressed (1) because, when the patdown began, any suspicion that the defendant possessed weapons could have been premised only on the detective’s observations that the defendant stood up abruptly when the police entered and that he then appeared nervous and (2) because those observations were not a legally sufficient basis to search the defendant’s clothes.


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