NEW JERSEY LAWYER

DAILY BRIEFING      04/13/2005


News Briefs

WORKER WHO LOST EIGHT FINGERS SETTLES FOR $900,000
A Vineland factory worker who lost eight fingers when a punch-press machine malfunctioned has agreed to accept $900,000 from the company that repaired the machine a year before the accident. In Homar v. Cincinnati Co., Malden Homar, 29, contended that on May 23, 2001, while he was working for Library Bureau Steel in Vineland, the machine’s press inadvertently cycled down due to faulty wiring that should have been detected by the repair company, Scalfo Electric Co., also in Vineland. The case against the machine manufacturer, Cincinnati Co. in Cincinnati, was dismissed because it was not responsible for servicing the 50-year-old punch press, according to plaintiff’s attorney Louis J. DeVoto of Rossetti & DeVoto in Cherry Hill. Also, Library Bureau Steel agreed to restore full worker’s compensation benefits to Homar and eliminate $60,000 of a $120,000 lien against him by its worker’s compensation insurer, New Jersey Manufacturers Insurance Co. Camden County Judge Ronald J. Freeman approved the settlement. The attorneys included Joseph Collins of Marlton for Scalfo, Thomas W. Sweet of Far Hills for Library Bureau, Burchard V. Martin of Westmont for Cincinnati, and Michael J. Marone of Morristown for New Jersey Manufacturers. 4-12-05

UNION PROSECUTOR CALLS FOR CRACKDOWN ON MASSAGE PARLORS
Following the shutdown of unlicensed massage parlors in Hillside, Mountainside, Plainfield and Westfield, Union County Prosecutor Theodore J. Romankow is asking all municipalities in the county to consider ordinances regulating the activity. “Despite some of our best efforts, these parlors seem to reappear. No municipality is immune,” the prosecutor says in a mailing that includes sample ordinances from Hillside, Camden, Wayne and Bergenfield. Springfield Police Chief William Chisholm said ordinances requiring licensing would separate legitimate massage operations from prostitution pens. 4-12-05

PROFS TO REVIEW MAGAZINE’S LAW SCHOOL RANKINGS
U.S. News & World Report’s annual rankings of law schools, which gave mid-range scores to New Jersey’s schools, will be the subject of detailed discussion Friday by a panel of law school deans and scholars. Indiana University in Bloomington, which will host the session, calls the annual reports the “800-pound gorilla of legal education” because they affect school operations even though they’re often met by “varying degrees of skepticism and hostility.” The symposium will examine the need for these rankings, their effects on law schools and alternatives to meeting the public’s interest in the topic. In the latest rankings, Rutgers Law Schools in Camden and Newark shared the 72nd spot nationwide followed by Seton Hall at 89th. 4-12-05

ERISA DOESN’T APPLY TO INDIVIDUAL PENSION ACCOUNT LOSSES
Pensioners seeking to restore losses caused by mismanagement of their plans cannot sue under ERISA because their relief would not benefit the plan as a whole, the 5th U.S. Circuit Court of Appeals has ruled. Writing for a divided court in Milofsky v. American Airlines, Inc., chief Judge Carolyn D. King in Houston said the plaintiffs lack standing under ERISA Section 502 (a)(2) because their suit concerns only the accounts of individual class members. Plaintiffs Michael Milofsky and Robert Walsh, former pilots for Business Express and participants in the company’s individual account pension plan, alleged violation of fiduciary trust because their plans lost value after they were transferred to one operated by American Airlines when it acquired Business Express. 4-12-05

OUTSOURCE WORKERS IN INDIA ARRESTED FOR SCAM
Lawyers who outsource or have clients who do, had better take heed: Police in India arrested several low-level call center workers for allegedly looting $350,000 from the accounts of Citibank’s United States customers. The scam occurred even though the call center operating company Mphasis had the technology industry’s highest security rating, according to outsourcing industry analysts, Forrester Research. Mphasis acknowledged high employee turnover makes it hard to ensure security. 4-12-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, APRIL 12, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, APRIL 12, 2005:

TORT CLAIMS ACT
DELACRUZ v. BOROUGH OF HILLSDALE
New Jersey Supreme Court, A-72/73, April 12, 2005. (34 pages). Facts-on-Call Order No. 92408

The Tort Claims Act verbal threshold applies to common law false arrest and false imprisonment claims. Furthermore, under N.J.S.A. 59:3-3, a police officer’s subjective good faith belief as to the propriety of his actions is irrelevant as to liability for false arrest or false imprisonment claims; rather, the only relevant inquiry is whether, on an objective basis, the police officer’s actions were proper. Finally, a police officer’s subjective good faith belief may not constitute a defense at trial to a claim under 42 U.S.C. §1983 when his actions are not otherwise shielded from liability by the doctrine of qualified immunity.

THE SUPREME COURT has announced that it will release opinions in STATE v. B.H., A-59, and STATE v. BRENNAN, A-16, on April 13, 2005. The issue on appeal in B.H. addresses to what extent a jury may consider evidence that the defendant suffered from Battered Women’s Syndrome when determining whether she was coerced into engaging in criminal conduct. The issue on appeal in Brennan addresses whether expert testimony on Battered Women’s Syndrome is admissible to prove the defense of duress.



APPROVED FOR PUBLICATION
EMPLOYMENT LAW
VARGO v. NATIONAL EXCHANGE CARRIERS ASSOCIATION, INC.
Appellate Division, A-3639-03T1, approved for publication April 12, 2005. (28 pages). Facts-on-Call Order No. 92409

In balancing the interests of an employer to maintain security and safety in the workplace against the interests of a prospective employee to his right to privacy, there is no violation of an employee’s right to privacy or of public policy when an employer uses a neutral nondiscriminatory mandatory drug testing procedure as a prerequisite to an offer of employment, regardless of the nature of the employment position sought, where the employer provides written notice of its policy and where the prospective employee consents to and submits to the test.

CRIMINAL TRIALS
STATE v. CASTAGNA
Appellate Division, A-4471-01T5, A-4530-01T4, and A-6863-01T5, approved for publication April 12, 2005. (55 pages). Facts-on-Call Order No. 92410

The defendants’ convictions for being part of a mob that beat a man to death were reversed because the trial court’s preclusion of defense counsel from cross-examining a key prosecution witness on the results of a stipulated polygraph examination deprived the defendants of their right to confrontation where they were not parties to the stipulation. Furthermore, the trial court committed reversible error by failing to sua sponte charge passion/provocation manslaughter, and defense counsel’s performance denied one defendant his Sixth Amendment right to effective assistance of counsel.

NOT APPROVED FOR PUBLICATION
REAL PROPERTY
ASH v. HOBERMAN
Appellate Division, A-5969-03T1, April 12, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 17819

Dismissal of the plaintiff buyers’ complaint for damages and for specific performance of a contract for the sale of real estate affirmed; the plaintiffs’ proofs, if credited by a trier of fact, at most established the plaintiffs’ unilateral intention to waive the mortgage contingency clause, which was not allowed under the contract; however, there was no proof that the defendant sellers had agreed to be mutually bound by any written or oral representations by the plaintiffs, and the fact that the defendants did not immediately object to the plaintiffs’ letter, in which they expressly waived the mortgage contingency clause, did not evidence the defendants’ acquiescence in or their consent to the plaintiffs’ “one-sided decision”; although the parties never entered into an oral modification of the contract, the Appellate Division was “constrained to note” that they were not automatically barred from doing so under the Statute of Frauds.

MEDICAL MALPRACTICE
MILNES v. OCCUPATIONAL HEALTH CENTER AT CHILTON MEMORIAL HOSPITAL
Appellate Division, A-689-03T1, April 12, 2005, not approved for publication. (21 pages). Facts-on-Call Order No. 17820

Judgment of no cause of action in the plaintiff’s medical malpractice action after the jury found that the defendant doctor did not breach the applicable standard of care and denial of the plaintiff’s motion for a new trial affirmed; contrary to the plaintiff’s arguments, (1) she was not entitled to a new trial based on the surprise impeachment of her expert witness and her expert witness’s alteration of his opinion while testifying, (2) the trial court did not err by failing to place the issue of informed consent before the jury, (3) the trial court did not err in its handling of two instances of juror misconduct, and (4) the verdict was not against the weight of the evidence.

CIVIL PROCEDURE
McLAUGHLIN v. COUNTY OF CAMDEN
Appellate Division, A-4734-03T1, April 12, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 17818

Order denying the plaintiff’s motion for reconsideration of a summary judgment for the defendant county entities and officials in a Tort Claims Act action reversed and remanded; the defendants consented to an adjournment of their motion for summary judgment, the plaintiff did not file opposition before the original return date, and the motion was granted as unopposed on the original return date, even though both parties believed that an adjournment had been granted and even though neither party appeared for oral argument; the plaintiff’s motion for reconsideration was denied because it did not comply with Rule 4:49-2; because the defendants consented, the plaintiff should have been granted an adjournment; the trial court abused its discretion when it considered the plaintiff’s motion as a motion for reconsideration rather than a motion for relief from judgment under Rule 4:50-1(a), which was “obviously intended” by the plaintiff’s attorney; had the trial court considered the plaintiff’s motion as a Rule 4:50-1(a) motion, it would have been an abuse of discretion to deny a vacation of the summary judgment.

DAMAGES
HARRIS v. BENZEL BUSCH MOTOR CAR CORP.
Appellate Division, A-4807-03T2, April 12, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 17817

Special Civil Part judgment of $696 for the plaintiffs in an action alleging that the defendant repair shop failed to properly perform contracted repairs and damaged the plaintiffs’ vehicle while making the faulty repairs affirmed; at the end of the plaintiffs’ case, the Special Civil Part had informed the plaintiffs that they had the burden of establishing which repairs were necessary and what those repairs cost through expert testimony; the plaintiffs had called as a witness the defendant’s service advisor, who was not a mechanic and who did not substantiate their claim; the plaintiffs sought a new trial based on new evidence in the form of testimony about the repairs from an expert witness who had previously declined to testify, but that evidence was not “newly discovered evidence” within the meaning of Rule 4:50-1(b) that justified a new trial.

VERBAL THRESHOLD
SCALES v. FOOTE
Appellate Division, A-251-04T3, April 12, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 17821

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA affirmed; the plaintiff’s vehicle was rear-ended by the defendant’s truck; as to the first Oswin prong, although there was objective evidence of permanent injury, the plaintiff’s range of motion as to both her cervical and lumbar spine exceeded 85 percent and did not satisfy the serious injury requirement; as to the second Oswin prong, the plaintiff failed to demonstrate that her injuries had a serious impact on her life where she had been employed since her accident, where she was willing to work full time, and where she did not identify a specific activity that had been an important part of her life before the accident that she could no longer engage in as a result of the accident.


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