NEW JERSEY LAWYER

DAILY BRIEFING      04/21/2005


News Briefs

STUDY CLAIMS NO NATIONAL MED-MAL CRISIS
Research and public advocacy groups tend to take the side of either lawyers or doctors on whether there’s a medical malpractice crisis. The latest report from one such group would bring smiles to trial lawyers and frowns to MDs. Washington-based Public Citizen’s newest study of physician malpractice payments nationwide concludes there is no national malpractice crisis because the number of payments on behalf of doctors has been trending downward the past three years and the annual value of those payouts has been flat since 1991. The report says the malpractice litigation system “is working just fine.” It finds plaintiffs with minor injuries have been receiving “little compensation” while the bulk of malpractice awards comes from cases involving major injury or death. 4-20-05

J&J LITIGATION — HOW SWEET IT ISN’T
New Brunswick-based Johnson & Johnson faces major litigation over its Splenda sugar substitute as a result of a ruling in U.S. District Court in Los Angeles. The court has allowed the Washington-based Sugar Association to proceed with litigation alleging that marketing by J&J and its McNeil Nutritionals subsidiary misled the public into believing the artificial sweetener is as natural as sugar when it actually is a hydrocarbon-containing chlorine. The Sugar Association says it will sue under the federal Lanham Act. 4-20-05

APPELLATE’S TRAVELING SHOW COMING TO WOODBURY
The Appellate Division will take its traveling show to Woodbury next Wednesday to give Gloucester County lawyers and others a chance to witness oral arguments there. The hearings start at 9:30 a.m. in the ceremonial courtroom in the county courthouse. 4-20-05

$43.8 MILLION AWARDED IN CAR EXPLOSION CASE
A jury in Madison County, Ill., a venue notorious for high damage amounts, has awarded $43.8 million to the family of a 74-year-old man killed when the gas tank in his Lincoln Town Car caught fire after it was struck by another vehicle. The family charged the tank was located in a vulnerable area. Ford Motor Co. argued no similar accidents have occurred involving the model driven by John Jablonski of Florissant, Mo. 4-20-05

LAWYERS PUSH FOR PATENT LAW CHANGE
The legal profession is pushing for a federal law that would award patent rights to the first inventor to patent. Representatives of the American Bar Association told Congress that existing patent law is a “proofs of invention dates” system that results in unnecessary and expensive litigation. Separately, the Washington-based Legal Foundation issued a report saying small entities now are disadvantaged in such cases. 4-20-05

ATLA PRESIDENT’S SPEECH ON THURSDAY
The president’s speech at the American Trial Lawyers Association-New Jersey’s Boardwalk Seminar in Atlantic City is scheduled for Thursday at 9 a.m. A Daily Briefing item April 19 incorrectly reported the speech was to be Friday. 04-20-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, APRIL 20, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, APRIL 20, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON THURSDAY, APRIL 21, 2005.


APPROVED FOR PUBLICATION
EMPLOYMENT LAW
KLEIN v. UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY
Appellate Division, A-3070-03T2, approved for publication April 20, 2005. (25 pages). Facts-on-Call Order No. 92422

The Conscientious Employee Protection Act is not intended to shield a constant complainer who simply disagrees with the internal procedures and resource allocations of a hospital, provided that the operation is in accordance with lawful and ethical mandates. Because the plaintiff in this case could not demonstrate a cognizably reasonable belief of an improper quality of patient care, a violation of a regulation or a clear mandate of public policy, or a retaliatory action by the defendants that was sufficient to demonstrate a prima facie case of discriminatory retaliation under CEPA, summary judgment was appropriate.

ARBITRATION
ELIZABETHTOWN WATER CO. v. WATCHUNG SQUARE ASSOCIATES, LLC
Appellate Division, A-731-04T3F and A-732-04T3F, approved for publication April 20, 2005. (12 pages). Facts-on-Call Order No. 92423

Where some of the parties involved in a Law Division action also are involved in arbitration, where some of the parties have agreed to arbitrate but others have not, and where there is a significant overlap between parties and issues, the Law Division action should be stayed pending the outcome of the arbitration.

JURISDICTION
RELIANCE NATIONAL INSURANCE CO. IN LIQUIDATION v. DANA TRANSPORT, INC.
Appellate Division, A-646-04T1, approved for publication April 20, 2005. (19 pages). Facts-on-Call Order No. 92424

New Jersey does not have personal jurisdiction over a Florida attorney who handled a subrogation action in Florida that involved an insured who conducts business in Florida but whose principal place of business is in New Jersey, and the Florida attorney is not subject to suit in New Jersey by that insured.

LAND USE
BRITWOOD URBAN RENEWAL, LLC v. CITY OF ASBURY PARK
Appellate Division, A-3160-03T5, approved for publication April 20, 2005. (27 pages). Facts-on-Call Order No. 92425

In an appeal arising from the ongoing efforts to redevelop the waterfront in Asbury Park, the Appellate Division considered (1) the relationship between the provisions of the Local Redevelopment and Housing Law and the Municipal Land Use Law, (2) issues concerning the statutory definition of a “redeveloper” and the technical definition of a “subsequent developer” as they relate to Asbury Park’s authority to require contributions for off-site infrastructure improvement, (3) issues relating to the scope of the Planning Board’s authority in the redevelopment context, and (4) Asbury Park’s authority to impose contributions toward anticipated off-site infrastructure costs on properties within the redevelopment zone following final site plan approval.

NOT APPROVED FOR PUBLICATION
MUNICIPAL CORPORATIONS
LOIGMAN v. TOWNSHIP COMMITTEE OF THE TOWNSHIP OF MIDDLETOWN
Appellate Division, A-4098-03T1, April 20, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 17854

Summary judgment for the defendant Township Committee in an action in lieu of prerogative writs that challenged two resolutions to retain and pay special counsel to represent members of the Township Committee and Township officials in connection with personnel and employment matters affirmed; pursuant to the resolutions, the special counsel was authorized to represent a member of the Township Committee who had been sued in his official capacity as Mayor by the Township Clerk for violating the Law Against Discrimination and the common law; contrary to the plaintiff taxpayer’s arguments on appeal, (1) the Township Committee did not abuse its discretion by authorizing the payment of the member’s defense costs and (2) the Township Committee did not err by not notifying the public in the resolution that it was retaining the special counsel specifically for the Clerk’s litigation and that it had performed the analysis required by McCurrie v. Town of Kearny.

EDUCATION
MAGNOLO v. BOARD OF EDUCATION OF TOWNSHIP OF WASHINGTON
Appellate Division, A-2549-03T5, April 20, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 17856

Law Division order requiring the defendant Board of Education to hold a meeting to reconsider a resolution without the participation of any parent who sought to enroll a child in the New Jersey Interdistrict Public School Choice Program affirmed; the resolution imposed a cap on the percentage of students eligible to participate in the program but did not provide for an exemption for siblings of children who already were enrolled in the program; two weeks after the resolution was adopted, a member of the Board submitted a notice of intent to file an application for her daughter to participate in the program, which she later withdrew; the plaintiff parents brought an action in lieu of prerogative writs to have any action by the Board regarding the cap and the sibling exemption declared void ab initio; the issue of the member’s ethical conflict of interest was moot because she had withdrawn her application, and the Law Division correctly exercised its jurisdiction because it was “necessary and appropriate” due to the “self-evident” need for emergent action.

ADMINISTRATIVE LAW
GOODWIN v. ADECCO NORTH AMERICA
Appellate Division, A-1499-03T1, April 20, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17855

Finding by the Division on Civil Rights that there was no probable cause to support the complainant employee’s claim that she was constructively discharged by the respondent employer affirmed; the complainant filed a verified complaint against the respondent on February 21, 2002 that alleged retaliatory discharge in violation of the Law Against Discrimination, and she later sought to add a claim for constructive discharge; after an investigation, the Division found no probable cause for the constructive discharge claim, but it did find probable cause to proceed on the retaliatory discharge claim, which was referred to the Office of Administrative Law; the complainant “essentially” argued that the Division had failed to properly and completely investigate her constructive discharge claim, but the record contained sufficient competent, credible evidence to support the Division’s finding.

DRUNK DRIVING
STATE v. CARAVELLA
Appellate Division, A-6694-03T3, April 20, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17857

Conviction of driving while intoxicated based solely on the testimony of the arresting officers affirmed; the officers testified that they stopped the defendant for speeding at about 1 a.m. and that the defendant stared into space, moved slowly, had a strong odor of alcohol on her breath, had glassy eyes, and swayed and staggered; the officers did not conduct field sobriety tests because the tests would not have been safe at the location of the stop and because they already believed that the defendant was intoxicated based on their training, experience, and observations; contrary to the defendant’s argument that an officer’s observations cannot eliminate reasonable doubt unless they are corroborated by field sobriety tests, the law does not require field sobriety tests as an element of proof in a prosecution for driving while intoxicated, and the record “fully” supported a finding that the defendant was under the influence of alcohol within the meaning of N.J.S.A. 39:4-50(a) and State v. Johnson.


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