NEW JERSEY LAWYER

DAILY BRIEFING      04/06/2005


News Briefs

NJ DEBTORS BENEFIT FROM IRA BANKRUPTCY RULING
New Jersey is among a handful of states affected by the U.S. Supreme Court’s ruling this week that creditors cannot seize the individual retirement accounts of debtors who file bankruptcy. In Rousey v. Jacoway, the high court ruled IRAs should be afforded the same federal bankruptcy law protection as other benefits tied to age, illness and disability like Social Security. New Jersey is among 16 states along with the District of Columbia that do not have separate statutes protecting IRAs. In Rousey, an Arkansas couple rolled their company-sponsored retirement funds into an IRA and ran into trouble with creditors when health problems kept them from securing post-retirement jobs. 4-5-05

SMALL BUSINESSES WILL CONTINUE DROPPING HEALTH CARE COVERAGE
Increasing health care insurance costs are causing businesses with 19 or fewer employees to stop providing that benefit and there’s no immediate end in sight, says the New Jersey Business and Industry Association. “They are dropping coverage because they can’t afford it. This is an alarming trend,” said NJBIA President Philip Kirschner in releasing the association’s findings that employee health coverage costs rose 11 percent last year, with the highest jumps for smaller businesses. Unable to meet the added costs, the percentage of such employers offering coverage dropped to 87 percent from 92 percent a year ago, the first such decline in the 12 years NJBIA has conducted its healthcare survey. However, last year’s boost in cost is down from increases of 13 percent and 15 percent respectively in 2003 and 2002. 4-5-05

WYETH WINNING FEN-PHEN DISMISSALS IN MIDDLESEX
Plaintiffs who opted out of the class action against Madison-based Wyeth over health problems caused by its fen-phen diet drugs Redux and Pondimin aren’t faring well in New Jersey courts. Middlesex County Judge Charles J. Walsh, who’s managing a mass tort consolidation of opt-out cases, has reportedly dismissed 277 of 329 plaintiffs because their echocardiograms exaggerated their heart conditions. The class action was settled in U.S. District Court in Philadelphia for $3.75 billion in 1999, and the court has since been reviewing evidence submitted in 87,000 claims from class members. 4-5-05

DRINKER BIDDLE ADDS CHICAGO OFFICE
Philadelphia-based Drinker Biddle, with offices in Florham Park and Princeton, has expanded into the Windy City with a products liability and class-action defense practice. Two high-powered partners have joined from Kelley Drye & Warren’s Chicago practice: David B. Sudzus and John Dames. Drinker Biddle also has offices in New York, Washington, Los Angeles, San Francisco, Berwyn, Pa., and Wilmington, Del. 4-5-05

A FISH STORY
There’s fishing for business, fishing for clients and fishing for fish. Lawyers doing the latter may have less luck when the season opens Saturday if New Jersey gets more rain by then. Division of Fish and Wildlife officials report they’ve been forced to halt stocking the state’s nearly 200 streams and lakes until water levels recede in many places. Another 48,000 to 58,000 trout are to be added Friday — provided it stays dry. 4-5-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, APRIL 5, 2005:
STATE OFFICES IN TRENTON WERE CLOSED DUE TO THE GOVERNOR'S DECLARATION OF A STATE OF EMERGENCY, AND NO OPINIONS WERE RELEASED.


APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED ON TUESDAY, APRIL 5, 2005.

NOT APPROVED FOR PUBLICATION
 
NO OPINIONS NOT APPROVED FOR PUBLICATION WERE RELEASED ON TUESDAY, APRIL 5, 2005.

FROM THE ADMINISTRATIVE AGENCIES
SPECIAL EDUCATION
J.C. v. SOMERS POINT BOARD OF EDUCATION
OAL Docket No. EDS 2182-04, Agency Docket No. 2004-8668, Final Agency Decision: March 4, 2005, released for publication April 1, 2005. By Miller, ALJ. (34 pages).

The administrative law judge denied the petitioner father’s amended due process peti-tion to have his son placed in an out-of-state residential program. When the son transferred into the respondent’s district in 2003, he was evaluated and was classified as “multiply disabled,” and the petitioner later filed a due process petition to amend the son’s classification to “specific learning disability.” After the respondent agreed to incorporate “specific learning disability” into the son’s classification, the petitioner filed an amended petition that alleged that a residential placement was necessary to im-prove his son’s behavioral problems. The ALJ concluded that “multiply disabled” was an appropriate classification for the son and that the respondent had met its burden of proving that the student was receiving a free appropriate public education where his current individualized education program was producing results and where there was no evidence that the respondent failed to provide a free appropriate public education.

PENSIONS AND BENEFITS
REESE v. BOARD OF TRUSTEES OF THE PUBLIC EMPLOYEES’ RETIREMENT SYSTEM
OAL Docket No. TYP 9058-02, Agency Docket No. PERS #859885, Initial Decision: February 10, 2005, Final Agency Decision: March 21, 2005. By Monaco, ALJ. (37 pages).

The Board of Trustees of the Public Employees’ Retirement System accepted but modified the administrative law judge’s recommendation that denied the petitioner’s application for accidental disability retirement benefits and that granted her ordinary disability retirement benefits. The petitioner worked as an institutional attendant at the Warren Haven Nursing Home. She had surgery on her back and shoulder after she slipped on liquid on the floor of the nursing home, and she claimed that she was no longer able to perform the lifting required by her duties, which included moving residents into and out of wheelchairs, lounge chairs, and beds. Based in part on the Department of Personnel job specification for an institutional attendant, the Board’s expert testified that the petitioner was not totally and permanently disabled from performing her job duties. The ALJ determined that the petitioner had established that she was permanently and totally disabled from performing her regular and assigned duties but that her accident was not a “traumatic event” under N.J.S.A. 43:15A-43. In its final decision, the Board took exception to the ALJ’s conclusion that the Board’s expert’s interpretation of the DOP job specification was “overborne” by other evidence, especially the petitioner’s testimony, and it asserted that the DOP job specification should always be the primary criteria used to assess disability.

FROM THE FEDERAL COURTS
MEGAN’S LAW
SIMMONS v. NASH
U.S. District Court (DNJ), Civil Action No. 04-4334 (JEI), March 30, 2005. By Irenas, Senior U.S.D.J. (19 pages). Facts-on-Call Order No. 92392

The District Court entered judgment for the petitioner prisoner, declaring that the Federal Bureau of Prisons’ classification of a federal prisoner as a sex offender pursuant to 18 U.S.C. §4042(c) could be based only on the offense for which the pris-oner is currently serving a sentence and that any classification based on a previous state court conviction is not consistent with Congress’ intent. Thus, the court concluded that the petitioner, who currently is serving a sentence for a federal narcotics conviction, could not be classified as a sex offender based on a 1983 New York conviction following his guilty plea to attempted promotion of prostitution.

CIVIL PROCEDURE
WRS, INC. v. PLAZA ENTERTAINMENT, INC.
Third Circuit, No. 03-4094, April 4, 2005. By Sloviter, C.J. Also on panel: Van Antwerpen, C.J. and Cowen, C.J. Appealed from the U.S. District Court for the Western District of Pennsylvania. (10 pages). Facts-on-Call Order No. 92393

The Third Circuit dismissed the appeal from the District Court’s denial of the plaintiff’s motion to reopen and remanded. The District Court had concluded that the complaint already had been dismissed without prejudice and that the plaintiff must file a new ac-tion to pursue the claims that it asserted in the original complaint. The Third Circuit found that the assumption by the parties and by the District Court that the original complaint had been dismissed was not unreasonable but was erroneous. The Third Circuit concluded that the order in this case was an administrative closing and not a final judgment because the District Court had effectively dismissed the complaint conditionally and thus had retained jurisdiction. Because there was no final order and because it had no jurisdiction over the appeal from the order denying the motion to reopen, the Third Circuit remanded to the District Court.


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