NEW JERSEY LAWYER

DAILY BRIEFING      12/27/2005


News Briefs

VIOXX JUDGE ALSO HANDLING BEXTRA AND CELEBREX CASES
All lawsuits in New Jersey related to alleged adverse side effects of the drugs Celebrex and Bextra will be handled by Atlantic County Judge Carol E. Higbee. The state Supreme Court has designated all litigation concerning the two prescription anti-inflammatory pills to be a consolidated mass tort and has assigned the cases for consolidated case management to Higbee. The cases are being centralized to avoid duplication and to prevent conflicts, said Higbee in a case management order. 12-23-05

THIRD CIRCUIT SAYS GOVERNMENT CAN GET CLEANUP-SUPERVISION COSTS
The 3rd U.S. Circuit Court of Appeals has ruled the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) authorizes the federal government to recover costs incurred in supervising a hazardous-waste cleanup conducted by the private companies responsible for the pollution. In U.S. v. DuPont, the court overruled its 1993 opinion in U.S. v. Rohm & Haas Co. Writing for the court, Chief Circuit Judge Anthony J. Scirica noted there have been “several intervening decisions from our sister courts of appeals questioning or rejecting our analysis in Rohm & Haas. ” He said the court was overruling its decision in light of the “plain meaning of the relevant CERCLA provisions, the overall statutory framework, the functional benefits of agency oversight, and the overarching statutory objective of ensuring that those responsible for environmental harm” pay the full costs, not just of the cleanup itself, but of the administration of the cleanup. It cost the government $1.4 million to oversee cleanup of the Superfund site in Delaware. (A full text of DuPont, Facts-on-Call Order No. 92778, can be ordered from NJL Online or by calling 800-670-3370.) 12-23-05

INSURANCE INDUSTRY’S HOPES DASHED ON VERBAL THRESHOLD
The lame-duck legislature won’t be taking up any measures sought by the insurance industry to fix a New Jersey Supreme Court decision it claims would increase premiums and trigger more pain-and-suffering suits. Assemblyman Neil M. Cohen (D-Union) says legislation to reverse the high court’s DiProspero v. Penn decision won’t be among the crush of last-minute bills considered in Trenton before the legislative session ends. Read the full story in the Dec. 26 New Jersey Lawyer. 12-23-05

CONSERVATIVE GROUP LOSES APPEAL OVER JUDICIAL CONFIRMATIONS
The conservative group Judicial Watch has lost its appeal of a decision saying it had no standing to challenge what it alleged was the unconstitutional misuse of filibusters to block judicial confirmations. The group claims the need under Senate rules to get three-fifths of all senators to close debate runs counter to the U.S. Constitution, which says judges are to be confirmed by a simple majority. In Judicial Watch v. United States Senate, the U.S. Court of Appeals for the District of Columbia Circuit said the group’s “allegations fail to support an inference that the rules challenged here caused the alleged injury” of slowing the filling of judicial vacancies, which, in turn, harmed Judicial Watch by further delaying its lawsuits. 12-23-05

JUDGE BLOCKS CALIFORNIA VIDEO GAME LAW
A federal judge temporarily blocked a new California law slated to go into effect Jan. 1 that bans the sale or rental of violent video games to anyone under age 18. U.S. District Judge Ronald Whyte granted a preliminary injunction sought by the Video Software Dealers Association, based in Encino, and the Entertainment Software Association, based in Washington, D.C. The groups, which sued Gov. Arnold Schwarzenegger who signed the law in October, contended the law violates free-speech rights. Industry groups point to similar laws in other states. An Illinois judge recently ruled in favor of the industry and state officials there plan to appeal. 12-23-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, DECEMBER 23, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, DECEMBER 23, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON TUESDAY, DECEMBER 27, 2005.


APPROVED FOR PUBLICATION
CRIMINAL TRIALS
STATE v. ROMAN
Appellate Division, A-4380-02T1, approved for publication December 23, 2005. (28 pages). Facts-on-Call Order No. 92777

During an interrogation, the police were permitted to attempt to determine whether the defendant’s request for a break to speak with his parents was an assertion of his right to remain silent. The alleged prosecutorial misconduct was not sufficient to reverse the defendant’s conviction for killing his 7-week-old son.

NOT APPROVED FOR PUBLICATION
INSURANCE
CERNA v. UNSATISFIED CLAIM & JUDGMENT BOARD
Appellate Division, A-4661-04T2, December 23, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 19008

Denial of the defendant Unsatisfied Claim and Judgment Fund’s motion for summary judgment reversed and remanded for an evidentiary hearing on the plaintiff illegal alien’s status as a New Jersey resident at the time of his accident; the plaintiff came to New Jersey from Peru in May 2002, and, while riding his bicycle in August 2002, he was struck by a vehicle that fled and never was located; in response to the plaintiff’s June 2003 suit, the UCJF filed a summary judgment motion claiming that the plaintiff was not a “qualified person” within the meaning of N.J.S.A. 39:6-62 because he was not a New Jersey resident; the motion judge appeared to have assumed that the plaintiff was a New Jersey resident because he lived in New Jersey when the accident occurred, but “residency requires a little more”; an evidentiary hearing was required due to the “apparent absence of a definitive motion record” on the issue of residency.

WORKERS’ COMPENSATION
VALENTIN v. CHARLES BESELER CO.
Appellate Division, A-1627-04T5, December 23, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 19011

Judgment of the Division of Workers’ Compensation that dismissed the petitioner 59-year-old machine operator’s claim petition arising from a heart attack affirmed; contrary to the petitioner’s arguments on appeal, the judge of compensation properly determined (1) that the heart attack was not caused by the work effort where the petitioner’s medical records conflicted with his trial testimony as to the onset of symptoms and his family’s history of heart disease and where the judge found the testimony of the respondent employer’s expert more persuasive than the testimony of the petitioner’s expert and (2) that, although the employer had declined to send the petitioner to its clinic, the petitioner’s disability was not compensable under the humane instinct doctrine because the employer had no legal duty to provide medical care to the petitioner, who was not helpless or incapable of providing his own care, and because the employer’s conduct was not a contributing cause of the petitioner’s disability.

CIVIL PROCEDURE
JACKSON v. FOX & LAZO
Appellate Division, A-2417-04T1, December 23, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 19012

Dismissal of the plaintiff buyer’s amended complaint against the defendant real estate broker based on the applicable six-year statute of limitations reversed and remanded; following a home inspection, the seller made repairs to the home for termite infestation; the parties closed on September 15, 1997, and extensive termite infestation was found on September 30, 1997; the plaintiff’s November 1997 action against the broker, which represented the seller, was dismissed for lack of subject-matter jurisdiction due to a dispute resolution clause in the sales contract; when the plaintiff’s efforts to pursue dispute resolution against the broker were unsuccessful, the plaintiff sued the broker on August 28, 2001 for breach of the dispute resolution clause; mediation was “unfruitful,” and the plaintiff filed an amended complaint on September 19, 2003; because the plaintiff could not have reasonably known on the September 15, 1997 closing date that termites remained in the house, the filing of the September 19, 2003 amended complaint was within the six-year statute of limitations.

ESTATES AND TRUSTS
FORTUNA v. FLYNN
Appellate Division, A-2847-04T5, December 23, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 19010

Order approving the accounting of the defendant conservator and awarding the plaintiff trustee $7,000 in attorney’s fees to be paid from the decedent’s estate affirmed substantially for the reasons expressed by the trial court in an action to hold the defendant in contempt for failing to file an accounting; the plaintiff alleged that the defendant had made unauthorized payments to other family members and for his own benefit; the trial court had concluded that, while the defendant was not the “most articulate of people in the area of finances,” he did not misappropriate funds and that the gifts made to his siblings and to others from the conservatorship were not inappropriate, in light of the directions that he had received; the trial court’s findings were supported by substantial credible evidence in the record, and the plaintiff’s arguments on appeal were “without merit.”

CONTRACTS
SPENCER v. LONG VALLEY INN, INC.
Appellate Division, A-3563-03T5, December 22, 2005, not approved for publication. (20 pages). Facts-on-Call Order No. 19007

Final judgment following a jury trial in the Law Division against the defendant property owner that awarded damages and prejudgment interest affirmed in an action by the plaintiff mason and the plaintiff excavator that arose from the construction of the defendant microbrewery; the plaintiffs sought payment on invoices for labor and materials and on promissory notes that they had received from the microbrewery; contrary to the plaintiffs’ arguments on appeal, the Law Division did not err (1) by awarding prejudgment interest from November 5, 2000 — which was the date of a Chancery Division order that confirmed that the owner, and not the microbrewery or its investors, owned the property — instead of from January 1, 1996, which was when the work was completed, or from June 25, 1996, which was when the complaint was filed, (2) by awarding prejudgment interest at the Rule 4:42-11 rate rather than the contract rate, (3) by determining that the owner was not responsible for the excavator’s note, and (4) by dismissing the mason’s promissory-note claim based on the parties’ May 17, 2000 consent judgment.

UNEMPLOYMENT COMPENSATION
ANDERSON v. BOARD OF REVIEW
Appellate Division, A-4676-04T3, December 22, 2005, not approved for publication. (2 pages). Facts-on-Call Order No. 19006

Final decision of the Board of Review that denied the petitioner’s application for unemployment compensation affirmed; the Board did not address the merits of the petitioner’s claim; instead, it denied her appeal from the Appeal Tribunal, which had denied her claim, because it was untimely under N.J.S.A. 43:21-6(c); in her appellate brief, the petitioner addressed the merits of her claim, but she did not explain the untimely filing of her appeal to the Board; therefore, the petitioner failed to establish any good cause for the untimely filing, and the Board’s decision was not arbitrary, capricious, or unreasonable.

FROM THE FEDERAL COURTS
CIVIL PROCEDURE
DANVERS MOTOR CO., INC. v. FORD MOTOR CO.
Third Circuit, No. 04-3950, December 19, 2005. By Alito, C.J. Also on panel: Van Antwerpen, C.J. and Aldisert, C.J. Appealed from the U.S. District Court for the District of New Jersey. (13 pages). Facts-on-Call Order No. 92771

In an action by the plaintiff Ford dealers challenging the defendant Ford Motor Company’s “nationwide customer service satisfaction and incentive program,” the Third Circuit reversed and remanded the District Court’s decision that dismissed the action based on the dealers’ lack of standing. The dealers alleged that they suffered harm because they were compelled to spend money against their will to comply with the program’s certification requirements and to relinquish control over parts of dealership operations, and the Third Circuit held that those two forms of alleged harm constituted injuries in fact for purposes of constitutional standing.

SECURITIES
IN RE ROYAL DUTCH/SHELL TRANSPORT SECURITIES LITIGATION
U.S. District Court (DNJ), Civil Action No. 04-374 (JAP), December 12, 2005, amended opinion filed December 19, 2005. By Pisano, U.S.D.J. (17 pages). Facts-on-Call Order No. 92773

In an action alleging that “materially false and misleading statements” were disseminated about the defendant companies’ reported proved oil and natural gas reserves, the District Court reconsidered its August 9, 2005 order and denied the defendants’ motion to dismiss the claims of the plaintiffs who had purchased the companies’ securities between April 8, 1999 and March 18, 2004, which was the class period, but had not sold them before August 9, 2005. The District Court held that the claims should not have been dismissed based solely on the fact that the securities were not sold because a plaintiff alleging fraud in connection with the purchase of securities is not necessarily required to sell those securities to plead and prove loss causation and economic loss.


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