NEW JERSEY LAWYER

DAILY BRIEFING     04/22/2005


News Briefs

JURY AWARDS INJURED X-RAY TECHNICIAN $2.8 MILLION
A Hudson County jury has awarded $2.8 million to former X-ray technician Susan Petersen who claimed she was disabled by a back injury she suffered in 1998 while trying to stop a rolling portable X-ray machine in St. Mary’s Hospital in Hoboken. Petersen sued General Electric, which had a maintenance contract for the machine, and Siemens Medical, which designed it. Her Newark attorney, Gregg Alan Stone of Kirsch, Gelband & Stone, argued the machine was defectively designed because without a braking system, the only way to stop it once it built some momentum was to pull it back. This turned out to be a mismatch between the 130-pound Petersen and the 500-pound machine, he said. Keith G. VonGlahn of Wilson Elser Moskowitz Edelman & Dicker in Newark represented Siemens Medical. General Electric, represented by George J. Kenny of Connell Foley in Roseland, settled out of court. Judge Peter F. Bariso Jr. presided. 4-21-05

INCOMING ATLA CHIEF SETS AGENDA
E. Drew Britcher, who will officially take over leadership of the Association of Trial Lawyers of America-New Jersey in June, has pledged to expand efforts to convince the New Jersey Supreme Court that its best practices rules are having a negative impact on how lawyers handle cases, and to work against any expansion of the threshold for pain-and-suffering suits in motor vehicle accident cases. Britcher, 45, is one of the state’s top medical malpractice attorneys and a founder of Britcher Leone & Roth in Glen Rock. He’s been filling in since January as head of the organization for an ailing Richard H. Wildstein of Goldstein Ballen O’Rourke & Wildstein. A full story on Britcher is in the April 25 New Jersey Lawyer. 4-21-05

SENATE PANEL EMBRACES JUDICIARY BUDGET
The state judiciary’s proposed $554 million budget for 2005-06, holding the line at a modest 0.3 percent increase over the current appropriation, was welcomed with open arms Wednesday by the Senate’s Budget and Appropriations Committee. One of the few notable increases was for expanding the drug court system, which turned out to be popular with committee members. After the hearing, Judge Philip S. Carchman, administrative director of the courts, said there were more programs he would have liked expanded in the budget — especially technology — “but we recognized that this is a tough budget cycle and tough economic times.” Carchman said the tight budget should have no negative impact on day-to-day operations. “The courts lawyers see will be the same courts they see now,” he said. The Assembly’s Budget Committee is scheduled to review the judiciary budget May 19. 4-21-05

BLOCKBUSTER EMPLOYEES SUE FOR OVERTIME
As if the embarrassment of the recently backfired “No more late fees” campaign wasn’t enough, current and former Blockbuster employees are claiming their overtime pay is long overdue. When the Bush administration last summer implemented new rules regarding overtime, Blockbuster made a point of telling its employees that under the new rules, they would be eligible for overtime from then on only under very limited circumstances. This, of course, set the employees to wondering why they weren’t paid for their overtime under the old rules. An employee class action filed this week in Texas joins those already filed in other courts. 4-21-05

JUDGE NAILS JUROR FOR BIG YAWN, DUMB APOLOGY
And the trial hadn’t even started yet. Superior Court Judge Craig Veals in Los Angeles lashed a juror with a $1,000 fine for yawning while waiting to be questioned for selection in an attempted-murder trial. It seems what riled the judge wasn’t so much that someone dared yawn in his courtroom, but that someone would yawn so loudly “it was to the point that it was contemptuous.” The juror’s apology got him in even more trouble. “I’m sorry, but I’m really bored,” said Juror 2386. The juror was questioned, but not selected. The fine later was reduced to $100. 4-21-05



To Order Decisions

Now you can order the full text of these decisions directly from the Daily Briefing. Just click on the Facts-on-Call Order Number and the order page will open. And of course you still can order by phone by calling 1-800-670-3370. (A PIN number is required to use the service. If you need a free PIN Number, call 800-310-8678.)

Today's Decision Summaries

FROM THE NEW JERSEY SUPREME COURT, THURSDAY, APRIL 21, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, APRIL 21, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON FRIDAY, APRIL 22, 2005.


APPROVED FOR PUBLICATION
DISCOVERY
KELLAM v. FELICIANO
Appellate Division, A-1374-04T2, approved for publication April 21, 2005. (15 pages). Facts-on-Call Order No. 92426

Because the Court Rules that apply in a Special Civil Part personal injury action do not expressly provide that they may not be relaxed, a trial judge may order a plaintiff to answer Form A interrogatories, to submit to an independent medical examination, or to be deposed in order to correct any imbalance in the scope of discovery that the defendants are authorized to seek.

NOT APPROVED FOR PUBLICATION
PARENT AND CHILD
MINCHIN v. MINCHIN
Appellate Division, A-1557-03T5, April 21, 2005, not approved for publication. (17 pages). Facts-on-Call Order No. 17863

Post-divorce-judgment order reversed and remanded as to the treatment of derivative Social Security Disability benefits and as to the defendant father’s request for a modification of his child support obligation; the parties had two sons and were divorced in 1993; the defendant began to receive $1,537 per month in SSD benefits in January 2002, and he began to receive $266 per month per child in derivative SSD benefits in May 2002; the defendant moved for a modification of his child support obligation based on changed financial circumstances and on the birth of his child in Russia; the trial court denied the motion and ordered the defendant to reimburse the plaintiff mother for $266 per child for each month from May 2002 until September 2003, which were the months that the defendant had received derivative SSD benefits without the court’s authorization; the trial court erred by failing to offset the derivative SSD benefits that the defendant had received from May 2002 to September 2003 against his monthly child support obligation and by failing to evaluate the defendant’s child support obligation in light of his current income.

PARENT AND CHILD
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. D.L.
Appellate Division, A-693-04T4, April 21, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 17860

Termination of the defendant father’s parental rights to his 3-year-old “medically fragile” son affirmed; the son was placed immediately after birth in a specialized housing placement foster home and was to be placed with his paternal aunt for adoption; the aunt agreed to postpone placement until after the son had surgery to close his cleft palate; the surgery occurred when the son was 1 year old, and placement with the aunt was again postponed while the son underwent four months of treatment for asthma; in the meantime, a bond formed between the son and his foster mother; two experts determined that the son would be harmed by removal from his foster mother; contrary to the defendant’s arguments on appeal, the trial court did not err by finding that the Division of Youth and Family Services had made reasonable efforts to place the son with his aunt or by finding that termination of the defendant’s parental rights would not do more harm than good.

PARENT AND CHILD
DIVISION OF YOUTH AND FAMILY SERVICES v. J.C.
Appellate Division, A-411-04T4, April 21, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 17861

Termination of the defendant father’s parental rights to his daughter affirmed; the defendant sought to place the daughter with his aunt; the Division of Youth and Family Services had rejected the aunt as a caregiver based on allegations that she had injured a 10-year-old niece in her custody 17 years before, and the aunt had filed an institutional appeal; contrary to the defendant’s argument on appeal, the trial court should not have adjourned the trial pending a decision on the institutional appeal; the record established that the defendant was not prejudiced by the trial court’s refusal to adjourn because the trial court’s finding that the aunt should not serve as a caretaker for the daughter was not based on the same grounds that were the subject of the institutional appeal.

LAW AGAINST DISCRIMINATION
RUGGERIO v. PRIME HOSPITALITY CORP.
Appellate Division, A-2414-03T1, April 21, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17859

Summary judgment for the defendant employer and the defendant supervisor in an action alleging discrimination based on gender and pregnancy affirmed substantially for the reasons set forth by the trial court; the plaintiff employee gave birth prematurely to a child with cerebral palsy in May 1999, and she resigned in October 1999 to stay home with her child after she exhausted a 24-week leave of absence; the trial court concluded that the plaintiff was not discriminated against because of her gender and her pregnancy; the trial court questioned whether pregnancy is a handicap under the Law Against Discrimination, noted that no expert testimony established that it is, and determined that the defendants had made reasonable accommodations; the trial court also found that the plaintiff was not constructively discharged because she had decided to care for her child rather than return to work and that her hostile workplace claim lacked the required proofs.

ADMINISTRATIVE LAW
FELTON v. COCA-COLA BOTTLING CO. OF NEW YORK, INC.
Appellate Division, A-253-03T1, April 21, 2005, not approved for publication. (2 pages). Facts-on-Call Order No. 17862

Final decision of the Division on Civil Rights finding no probable cause for the petitioner employee’s race discrimination and retaliation claims against the respondent employer under the Law Against Discrimination affirmed; the petitioner, who is African-American, was a truck driver for the respondent, and he had been progressively disciplined for attendance violations, just as several Caucasian drivers were; when he injured his back, he was accommodated “repeatedly” with light-duty assignments; his allegation of discharge was belied by evidence that he was medically unable to work and that his union grievance got his job back; the U.S. Equal Employment Opportunity Commission and the U.S. District Court found no merit in his claims; the Appellate Division found “insufficient merit” to warrant discussion in a written decision.

To Order Decisions

Now you can order the full text of these decisions directly from the Daily Briefing. Just click on the Facts-on-Call Order Number and the order page will open. And of course you still can order by phone by calling 1-800-670-3370. (A PIN number is required to use the service. If you need a free PIN Number, call 800-310-8678.)


Click this link to unsubscribe to the Daily Briefing email



Copyright © 2005 The New Jersey Lawyer Inc. All rights reserved.