NEW JERSEY LAWYER

DAILY BRIEFING     02/10/2006


News Briefs

JUDGE OKS $185 MILLION PACT IN DRUG STOCK CASE
U.S. District Judge Stanley R. Chesler has granted preliminary approval of a $185 million settlement proposed by Bristol-Myers Squibb Co. in a class-action suit alleging stock manipulation. The shareholders’ suit alleged the pharmaceutical firm artificially inflated its stock price by making misleading and false claims about an experimental heart medicine called Vanlev. The drug was never approved. The proposed settlement in In re Bristol-Myers Squib Securities Litigation will pay claims of investors who bought common stock between Oct. 19, 1999 and March 20, 2002. 2-9-06

PROSECUTOR DISMISSES BLITZ OF WRONG-WAY PARKING TICKETS
The municipal prosecutor in Egg Harbor Township has given a second chance to the owners of more than five-dozen cars all ticketed one night last month in a blitz that wasn’t approved by the public safety director. Mark Emmer said his officers acted without his consent or even his knowledge when they decided to vigorously enforce parking regulations on Jan. 6. Prosecutor Elaine Frick dismissed all 66 tickets after Emmer said he expects police officers to issue warnings before ticketing residents for violating a law that’s been ignored for years. His comments created a stir in town. While the residents whose cars were ticketed while they were asleep were angry, others defended the police, saying the wrong-way parked cars create a public safety problem and the officers were just doing their job. 2-9-06

LAW SCHOOL APPLICATIONS DROP
Admissions directors can only speculate why, but for whatever reason, the number of applications to law schools dropped last year after nearly a decade of increases. For the first time since the 1997-98 admissions cycle, the number of applicants declined. Last year’s 4.6 percent decrease is being eclipsed by a 9.5 percent decline so far this year. Perhaps it’s an improving economy and that college graduates prefer going to work than to law school. Perhaps it’s the heavy debt students carry for their undergraduate education that’s discouraging them from assuming more educational debt, speculate career counselors and school admissions directors. And even at the big-name law schools like Harvard and Columbia, the numbers fell. Yale also saw a decrease, but it was by five applicants. 2-9-06

FRENCH PERFUME CASE GETS WOMAN NEARLY $2 MILLION
While some women like expensive French perfume, Erin Weber was sick of it. Actually, the former country music disk jockey claims she was sickened by a colleague’s perfume. U.S. District Judge George Caram Steeh in Detroit found Weber is entitled to $1.9 million in damages and interest. Although he said he doubts she has a perfume allergy and was tempted to throw out the verdict, the judge nevertheless raised the award from $814,000 set in December. That’s a far cry from what an all-female jury originally awarded in May: $10.6 million — $7 million in punitive damages, $2 million in non-economic damages and $1.6 in past and future economic damages. The judge reduced that award, saying its size “is telling evidence that the jury in this case was inflamed.” The plaintiff contended she was forced to take medical leaves and lost her voice because of the perfume, Tresor by Lacome. She also claimed the perfume worsened an allergy that began in 1999 after her exposure to spilled nail-polish remover at the radio station owned by CBS Radio. 2-9-06

CALIFORNIA PROSECUTOR CHIDED FOR WITHHOLDING EVIDENCE
A California county prosecutor is under fire by a judge for concealing evidence from the defense in a kidnapping and shooting case. While Santa Cruz County Superior Court Judge Robert Atack admonished the prosecutor for failing to reveal information about a bullet hole in the victim’s pant leg, the jurist said the violation wasn’t serious enough to declare a mistrial and granted the defendants a new trial. Since the Mercury News conducted a three-year investigation that found criminal trials in the county are tainted frequently by questionable behavior by prosecutors, judges and defense attorneys, prosecutorial conduct is under a microscope. The newspaper’s recent five-day series documented dozens of cases in which prosecutors neglected to inform defense lawyers of evidence before trials. 2-9-06

PORITZ'S DEFINING MOMENT
It shapes up as perhaps the most widely watched case of the decade - and for good reason. The eventual decision in the same-sex-marriage challenge being argued Feb. 15 in the New Jersey Supreme Court not only will affect gays, lesbians and society as a whole, but the institution of the court itself - along with the reputation and legacy of Chief Justice Deborah T. Poritz as she nears mandatory retirement in October. The challenge by six same-sex couples in Lewis v. Harris presents the following questions: Will the court have the courage to say the New Jersey Constitution allows same-sex marriage? Will the court have the courage to restrain itself in the face of the hopes of people who claim a basic civil right? Is the "safe" route politically - one of restraint - the correct route legally? These are some of the questions in an article in the Feb. 6 New Jersey Lawyer. To read the full piece at no charge, visit http://www.njlnews.com/apps/pbcs.dll/section?Category=REDIRECT.




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Today's Decision Summaries

FROM THE NEW JERSEY SUPREME COURT, THURSDAY, FEBRUARY 9, 2006
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, FEBRUARY 9, 2006, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON FRIDAY, FEBRUARY 10, 2006.


APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE APPROVED BY THE APPELLATE DIVISION ON THURSDAY, FEBRUARY 9, 2006.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
CHOUDHURY v. MALONEY
Appellate Division, A-4438-04T3, February 9, 2006, not approved for publication. (2 pages). Facts-on-Call Order No. 19211.

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 concluded that the plaintiff had satisfied the first prong of the Oswin v. Shaw test because he had presented objective credible medical evidence of an injury caused by the accident but that he had not satisfied the second prong of the Oswin test because he failed to demonstrate that the injury had a serious impact on his life; reversal and remand were required in light of the New Jersey Supreme Court’s decision in DiProspero v. Penn, which held that the second prong of the Oswin test did not survive the enactment of AICRA.

PROFESSIONAL MALPRACTICE
GREENBLATT v. KISSEL
Appellate Division, A-4036-04T2, February 9, 2006, not approved for publication. (10 pages). Facts-on-Call Order No. 19214.

Summary judgment that dismissed the plaintiff insureds’ professional malpractice complaint against the defendant insurance agents for failure to provide an affidavit of merit reversed and remanded; after their insurer disclaimed coverage and refused to defend them in a premises liability action due to the cancellation of their policy, the plaintiffs filed a complaint alleging that the agents failed to procure insurance for their commercial premises, to ensure that one of the plaintiffs was identified as the named insured in the policy, and to properly notify the plaintiffs of the pending cancellation of their policy; the plaintiffs correctly argued that the common knowledge exception to the Affidavit of Merit Statute applied because jurors would not need experts to resolve the issues underlying the agents’ alleged negligence in procuring or placing insurance coverage or in sending notices about coverage to “obviously wrong addresses.”

TORT CLAIMS ACT
MACSTUDY v. BOROUGH OF EATONTOWN
Appellate Division, A-1866-04T5, February 9, 2006, not approved for publication. (7 pages). Facts-on-Call Order No. 19212.

Summary judgment that dismissed the plaintiff’s personal injury action against the defendant Borough and its emergency vehicle driver reversed and remanded; when the plaintiff’s vehicle collided with the emergency vehicle, he sustained injuries to his left shoulder and his right knee; the driver was convicted of driving while intoxicated; remand was required to determine (1) whether the driver’s actions constituted willful misconduct under N.J.S.A. 59:3-14(b) and thus rendered the Tort Claims Act verbal threshold inapplicable and (2) whether the plaintiff now has objective medical evidence of a permanent injury that was sufficient to satisfy the Act’s verbal threshold based on the alleged deterioration of his shoulder and knee since summary judgment was entered in November 2004.

DOMESTIC VIOLENCE
SALAMANCA v. ABOUELNIL
Appellate Division, A-5124-04T1, February 9, 2006, not approved for publication. (6 pages). Facts-on-Call Order No. 19213.

Final domestic violence restraining order against the defendant ex-boyfriend based on a finding of harassment affirmed; the trial court found that the plaintiff ex-girlfriend was credible and that the defendant had harassed her by telephoning her at work after she told him not to call her anymore; the defendant committed an act of harassment under N.J.S.A. 2C:33-4(a) because he made communications “at extremely inconvenient hours” by calling an unwilling recipient at her workplace after being told to stop and because his only intent in placing the calls was to cause annoyance.

PARENT AND CHILD
SCALISI v. LICATA
Appellate Division, A-6755-04T4, February 8, 2006, not approved for publication. (8 pages). Facts-on-Call Order No. 19210.

Post-divorce-judgment order that designated the defendant father as the parent with primary residential custody of the parties’ two daughters affirmed; the plaintiff mother initially was the parent with primary residential custody, and the father consented in December 2003 to her relocation to Arizona with her new husband and the daughters; in December 2004, the father sought primary residential custody based on his daughters’ reports that they experienced neglect and verbal and psychological abuse in their mother’s home and that the older daughter had been physically abused on at least one occasion; contrary to the mother’s arguments on appeal, (1) the daughters, who were 14 and 10 years old, were not too young to express a “reasoned preference” for living with their father during their in camera interviews and (2) the trial court did not simply accept the daughters’ statements at face value and order the relief they requested; there was no abuse of discretion.

JUDGMENTS
ROKOS v. GOURVITZ
Appellate Division, A-478-04T1, A-1517-04T1, A-1537-04T1, and A-3977-04T1, February 8, 2006, not approved for publication. (4 pages). Facts-on-Call Order No. 19209.

Orders for the defendant debtor’s incarceration and for the award of attorney’s fees to the plaintiff creditor affirmed in an action to enforce a judgment; the judgment was based on a jury verdict for the plaintiff in her Law Against Discrimination action against the defendant, and the defendant agreed to pay $350,000 under a payment plan to satisfy the judgment; the orders were entered after the defendant failed to make the required payments; of “particular importance” to the Appellate Division was the fact that the defendant had not been incarcerated and had paid his debt to the plaintiff; as to the orders for incarceration, the defendant’s appeal was moot because, even though the defendant had not paid the attorney’s fees, the plaintiff conceded that the orders no longer were effective and could not be used to recoup the attorney’s fees; as to the orders awarding attorney’s fees, the trial court did not abuse its discretion.

FROM THE ADMINISTRATIVE AGENCIES
SPECIAL EDUCATION
S.C. v. NEWARK BOARD OF EDUCATION
OAL Docket No. EDS 12332-05, Agency Docket No. 2006-10611, Final Agency Decision: December 14, 2005, released for publication January 25, 2006. By Robinson, ALJ. (6 pages).

The administrative law judge ordered that the petitioner mother’s son attend Dayton Street School to comply with his individualized education program and that the mother’s due process petition be dismissed. While the mother was incarcerated, the son was placed in special education services with the consent of the Division of Youth and Family Services. The son was placed at Dayton Street School because the respondent Board of Education could not provide a certified teacher for the son at Morton Street School, which was across the street from his mother’s residence. The mother claimed that she would not have consented to placing her son in special education and that he no longer required special education, and she sought to disenroll him or to enroll him permanently at Morton Street School. The ALJ determined (1) that the Board’s witnesses were “fully credible,” (2) that the son’s reported behavior impeded his learning, (3) that the evaluations of the son properly included academic and functional behavioral assessments, (4) that the Board had established that Dayton Street School was an appropriate placement, and (5) that the mother had not established that Dayton Street School was not an appropriate placement and that her son no longer required special education.

SPECIAL EDUCATION
J.B. v. OCEAN TOWNSHIP BOARD OF EDUCATION
OAL Docket No. EDS 8974-05, Agency Docket No. 2006 10739 E, Final Agency Decision: December 27, 2005, released for publication January 12, 2006. By Metzger, ALJ. (3 pages).

The administrative law judge denied the petitioner parents’ application for emergent relief to obtain home training for their 8-year-old son, to address deficiencies in the son’s feeding program, and to obtain a functional behavioral assessment for the son. The ALJ concluded that the parents had not satisfied the four-part test for obtaining emergent relief under Crowe v. DeGioia. As to home training, which was a related service provided for in the son’s individualized education program, the ALJ concluded that no order was necessary (1) because the most recent home trainer had left, (2) because the respondent Board of Education was negotiating with a new organization that would begin providing home training as soon as possible, (3) because there was no dispute that home training was needed, (4) because there was no evidence that the Board was recalcitrant, and (5) because compensatory education was available for the home training that was missed. As to the feeding program, the ALJ found that the issue was “factually contested” and was not yet substantially addressed and that there was no basis on the current record to determine that adjustments were necessary or what adjustments might be appropriate. As to the functional behavioral assessment, the ALJ observed that the Board had stated at oral argument that the assessment was necessary and that it was proceeding accordingly.

SPECIAL EDUCATION
K.K. v. BAYONNE BOARD OF EDUCATION
OAL Docket No. EDS 11916-05, Agency Docket No. 2006 10649, Final Agency Decision: December 15, 2005, released for publication January 12, 2006. By Robinson, ALJ. (4 pages).

The administrative law judge denied the petitioner mother’s motion for reconsideration of an order that denied her application for emergent relief to obtain immediate home instruction for her daughter. The ALJ concluded that there was no rationale to reconsider the order. Pursuant to the four-part standard for emergent relief set forth in N.J.A.C. 1:6A-12.1, the ALJ still found (1) that there was no evidence of medically irreparable harm to the daughter, (2) that the legal right underlying the mother’s claim was not settled because the documents and arguments presented by the parties were, “for the most part,” contradictory, (3) that there was no likelihood that the mother would prevail on the merits of her underlying claim, and (4) that there was no evidence that the mother would suffer greater harm than the respondent Board of Education if the requested relief was not granted. The ALJ further found that there was no reason to take testimony from the licensed practical nurse who was solely responsible for administering medication to the daughter and helping her meet her daily living requirements.

SPECIAL EDUCATION
S.S. v. LAWNSIDE BOROUGH BOARD OF EDUCATION
OAL Docket No. EDS 8681-05, Agency Docket No. 2006-10624, Final Agency Decision: December 1, 2005, released for publication January 12, 2006 By Viscomi, ALJ. (4 pages).

The administrative law judge dismissed as moot the petitioner’s due process request for changes to the student’s individualized education program and ordered the parties to participate in an IEP meeting scheduled for December 14, 2005. The petitioner’s request was filed after the student was placed at the Burlington County Special Services School District as the result of an IEP meeting that was ordered by the Superior Court, which was presiding over another matter involving the parties. The respondent Board of Education then sought to schedule an IEP meeting involving the District’s child study team, the student’s parent, the Board’s representatives, and the student’s court-appointed law guardian. Therefore, the ALJ concluded that the petitioner’s request was moot and that the petitioner was not the prevailing party because the relief sought could be obtained only through attendance and participation at the IEP meeting, which the Board was in the process of scheduling pursuant to N.J.A.C. 6A:14-3.7(h) and N.J.A.C. 6A:14-7.1. The ALJ found that the Board had issued proper notice of an IEP meeting for December 14.

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