NEW JERSEY LAWYER

DAILY BRIEFING      02/23/2005


News Briefs

STATE BAR CONTINUES FIGHT OVER $75 LAWYERS’ FEE
A discovery period followed by filing summary judgment motions by both sides are the next steps in the New Jersey State Bar Association’s fight against the $75 fee assessed against lawyers to help subsidize doctors’ medical malpractice insurance costs. For now, lawyers must continue to pay the fee, according to Union County Judge Thomas N. Lyons, who denied the bar’s application for a preliminary injunction at a show-cause hearing last week. On the positive side, Lyons found the organization did have standing to file the lawsuit and that it was properly filed in the Chancery Division rather than in tax court. Bar President Edwin J. McCreedy represented the plaintiffs and Assistant Attorney General Patrick DeAlmeida argued on behalf of the state. The motions will be heard May 27. 2-22-05

THIRD CIRCUIT AFFIRMS INJUNCTION AGAINST POLLUTER
New Jersey’s U.S. District Court had the authority to require the clean-up of a contaminated site, ruled the 3rd U.S. Circuit Court of Appeals in Interfaith Community Organization v. Honeywell International. Plaintiffs, including a community organization, sued the owner of a contaminated site under the federal Resource Conservation and Recovery Act’s citizen suit provision, alleging “an imminent and substantial endangerment to health or the environment.” The trial court ordered Honeywell to excavate the contaminants. Honeywell appealed, claiming the order usurped Department of Environmental Protection power. The DEP approved a remediation process in 1993, although, the appeals court noted, its provisions were not fulfilled. “Given the severity of the contamination at the site and its other unique characteristics, precisely established in the evidence, the injunction was reasonably calculated, narrowly tailored and thus necessary to remedy an established wrong,” wrote Judge Franklin S. Van Antwerpen for the court. (A complete text of Interfaith, Facts-on-Call Order No. 92321, can be ordered from NJL Online or by calling 800-670-3370.) 2-22-05

INTERIM BANKING & INSURANCE COMMISSIONER NAMED
Donald I. Bryan Jr., a 23-year employee of the state Department of Banking and Insurance, has been named the department’s acting commissioner, effective March 1. Bryan, director of the insurance division, served as acting commissioner five months during the administration changeover in 2001-02. He advanced through department ranks from a regulatory officer and manager of insurance licensing to assistant commissioner. A Burlington resident, he has an economics degree from the University of Virginia and a law degree from Rutgers Law School-Camden. After three years as commissioner, Holly C. Bakke has resigned to spend more time with her family. 2-22-05

SURPRISE! LEGAL COSTS NOT ROOT OF MED-MAL RATE INCREASE
Despite the hoopla about “skyrocketing” costs of medical malpractice lawsuits, legal costs do not seem to be at the root of increases in malpractice insurance premiums, according to government and industry data that show only modest rise in claims the past decade. And last year, the trend in payments for malpractice claims against doctors and other medical professionals turned sharply downward, falling 8.9 percent, according to the Health and Human Services Department. In fact, the declining investment earnings of insurance companies and the changing nature of competition in the industry are more important factors than lawsuits against doctors, according to data showing insurers began to double and triple premium costs for doctors when the stock market turned sour. 2-22-05

NEWSPAPER MUST PAY $2.1 MILLION FOR LIBELING JUDGE
After five days of deliberation, a jury has ordered The Boston Herald to pay $2.1 million for libeling Superior Court Judge Ernest B. Murphy, saying it misquoted him as telling lawyers a 14-year-old rape victim should “get over it.” The quote appeared in one of a series of articles that alleged Murphy was criticized by prosecutors for lenient sentencing. Murphy, who denied making the comment, sued when the articles resulted in hate mail and at least two death threats, causing him stress-related medical problems and “traumatizing” his daughters. He said he hopes the verdict will show “how powerful the press really is and what damage can be done … if they do not act responsibly.” But the newspaper’s president and publisher, Patrick J. Purcell, said, “We believe the First Amendment allows news organizations to provide uninhibited coverage of government and public figures” and “we are confident this decision will be reversed on appeal.” Because Murphy is a public figure, his lawyer had to convince the jury the Herald knew it was reporting false information or that it acted with a reckless disregard for the truth. 2-22-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, FEBRUARY 22, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, FEBRUARY 22, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON WEDNESDAY, FEBRUARY 23, 2005.


APPROVED FOR PUBLICATION
ATTORNEY’S FEES
FISCHER v. FISCHER
Appellate Division, A-5093-03T3, approved for publication February 22, 2005. (33 pages). Facts-on-Call Order No. 92317

In an old and difficult matrimonial matter, the Family Part did not abuse its discretion by granting the motion by the defendant’s attorney to be relieved as counsel not long before the scheduled trial date and by requiring the attorney to return the defendant’s $10,000 retainer (1) because the court did not finally resolve the parties’ fee dispute, (2) because the retainer agreement contained an unethical, non-refundable fee provision, (3) because the case was extremely old, (4) because the pretrial and trial dates were imminent, (5) because the defendant would have been unable to retain a new attorney without the return of the retainer, and (6) because the attorney would have been unduly burdened if the motion to be relieved as counsel had been denied instead. Judge Fall concurred.

CIVIL PROCEDURE
SIWIEC v. FINANCIAL RESOURCES, INC.
Appellate Division, A-4745-03T2, approved for publication February 22, 2005. (10 pages). Facts-on-Call Order No. 92318

The Appellate Division (1) reversed the trial court’s order denying the defendant’s motion to vacate a default judgment entered after a proof hearing in the Special Civil Part because the Appellate Division had significant concerns about the merits of the plaintiff’s claim and (2) provided guidance as to the exercise of a trial court’s discretion under Rule 6:6-3(c) to order that a defendant be given notice of a proof hearing in the Special Civil Part.

PARENT AND CHILD
MIZRAHI v. CANNON
Appellate Division, A-6682-03T2, approved for publication February 22, 2005. (20 pages). Facts-on-Call Order No. 92319

Grandparents seeking visitation under N.J.S.A. 9:2-7.1 must prove that the child would suffer particular identifiable harm to prevail over a parent’s decision to forgo such visitation, and the harm must be to the child and not to the grandparents.

PARENT AND CHILD
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. F.M.
Appellate Division, A-6726-03T4, approved for publication February 22, 2005. (40 pages). Facts-on-Call Order No. 92320

A mother’s parental rights were improperly terminated because the Family Part failed to address the four prongs of the statutory test separately for the mother and the father and because the facts relating to the mother, when objectively viewed, did not clearly and convincingly support termination of her parental rights. The matter was remanded for further proceedings in light of the fact that the experts agreed that the children had developed strong bonds with their foster parents and that the mother’s expert stated that the mother and the children would need to have significant therapy to address issues relating to her parenting skills and to reunification.

NOT APPROVED FOR PUBLICATION
MEDICAL MALPRACTICE
KYE v. LEE
Appellate Division, A-1825-03T5, February 22, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 17647

Dismissal with prejudice of the plaintiff’s medical malpractice complaint for failure to file a timely affidavit of merit affirmed; on January 16, 2003, the plaintiff’s attorney filed a complaint alleging that the decedent had died from cardiac arrest that resulted from the defendant doctor’s negligence; the defendant answered on March 19, and he moved on July 30 to dismiss for failure to file an affidavit of merit; while the defendant’s motion was pending, the plaintiff filed an affidavit of merit; the plaintiff claimed that she was not aware that the complaint had been filed and that she believed that the statute of limitations had run; the trial court found that the failure to file a timely affidavit of merit was due to lack of diligence rather than extraordinary circumstances; the plaintiff’s arguments on appeal were legally and factually unsupported, and her contention that the Affidavit of Merit Statute is unconstitutional was addressed in dicta in Cornblatt v. Barow.

MEDICAL MALPRACTICE
GONZALEZ v. GNOY
Appellate Division, A-345-04T2, February 22, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17645

Denial of the defendant hospital’s motion to dismiss the plaintiff’s medical malpractice complaint reversed and remanded for an order dismissing the complaint with prejudice; the plaintiff filed his complaint on January 6, 2003, and the defendant’s answer and demand for service of an affidavit of merit was filed by consent order on November 25; on April 28, 2004, the defendant moved to dismiss the complaint for failure to serve an affidavit of merit; the plaintiff claimed that he was unable to read the name of the nurse who had witnessed his signature on a consent form and that he wanted to depose her; the trial court denied the motion, ordered the defendant to produce the nurse, and gave the plaintiff 60 more days to serve an affidavit of merit, and it denied the defendant’s motion for reconsideration and gave the plaintiff another extension; the plaintiff failed to comply with the Affidavit of Merit Statute, and the trial court did not have the authority to extend the filing period based on the facts of this case; the plaintiff did not establish extraordinary circumstances that warranted an extension or a dismissal without prejudice.

LAND USE
NEW HOPE BAPTIST CHURCH v. PLANNING BOARD OF THE CITY OF HACKENSACK
Appellate Division, A-4250-03T2, February 22, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 17646

Order directing the defendant Planning Board to grant a parking variance to the plaintiff church affirmed; the church applied for a variance to build a facility with 86 parking spaces instead of the 150 spaces required by the zoning ordinance, and it proposed to avoid holding events in the facility while the sanctuary was holding services to ensure that there was sufficient parking available at all times; the trial court properly concluded that the Planning Board’s denial of the church’s application was arbitrary and capricious where the Planning Board’s resolution (1) cited the comments of the Mayor and the church’s attorney rather than evidence in the record, (2) contained “general and conclusory” findings of fact, and (3) did not adequately address the church’s proposal; the Planning Board’s assertion that the proposed restriction would not be enforceable had “no merit whatever.”

DOMESTIC VIOLENCE
FREEMAN v. GILLIAM
Appellate Division, A-4421-03T1, February 22, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17648

Final domestic violence restraining order reversed; the parties were not married but had lived together since 1977 and had four children; although their romantic relationship ended in 1995, they continued to live in the same house; the plaintiff alleged that the defendant was angry because he had entered her room and moved her clothes, that he retreated to his room to avoid her tirade, and that she turned on the oven, causing smoke to pervade the house; however, the smoke alarm did not activate, and the plaintiff retreated to his room again instead of evacuating; there was insufficient evidence to support a finding of the predicate act of harassment under N.J.S.A. 2C:33-4 because the record did not indicate that the defendant’s conduct or communications toward the plaintiff had caused him serious annoyance or alarm.


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