NEW JERSEY LAWYER

DAILY BRIEFING      05/17/2005


News Briefs

ACCUTANE GETS MASS-TORT DESIGNATION
The Administrative Office of the Courts has designated litigation concerning the drug Accutane a mass tort to be centrally managed by Atlantic County Judge Carol E. Higbee. The Food and Drug Administration is monitoring reports of suicides and attempted suicides by users of the acne treatment drug manufactured by Hoffman La Roche of Nutley. The AOC assigned Higbee all current and future cases alleging damages caused by Accutane, except for five pending in Bergen County Superior Court. 5-16-05

WHERE THERE’S A WILL, THERE’S NOW A WAY TO REGISTER IT
Wills can be registered for future reference with the state’s Secretary of State. A new statute enables will filers or their attorney to register information concerning where the document is located, and allows heirs and other interested parties to review the registry to access the will. The state, which will not keep copies of wills, is charging $10 for registration and $10 each search. 5-16-05

BUSINESS SUED FOR SECURITY BREACH CAN SUE ITS TECH COMPANY
A business sued for security breaches that expose its customers’ internet-based payment information can sue its technology system providers for liability, ruled the U.S. District Court for the Middle District of Pennsylvania. In Pennsylvania State Employees Credit Union v. Fifth Third World Bank, the court declined to dismiss B.J.’s Wholesale Club’s third-party complaint against IBM, alleging negligence because IBM provided software that made B.J.’s electronic payment system vulnerable to hackers who stole customer credit and debit card numbers and used them for fraudulent purposes. The credit union had sued to recover the costs of reissuing credit cards. IBM moved to dismiss, claiming B.J.’s failed to sufficiently plead causation. 5-16-05

WINNER OF WRONGFUL-DEATH JUDGMENT NOW TRIES TO COLLECT
The attorney for a Bergen County mother who was awarded $4 million in a wrongful-death suit against a man suspected of murdering her daughter is jockeying for access to the assets of defendant Pragnesh Desai, the former operator of convenience stores in Cliffside Park and Woodridge and a New York restaurant. Rosemarie Arnold of Fort Lee reportedly obtained a court order to freeze Desai’s assets after Atlantic County Judge Isabel B. Stark ordered him to pay Madeleine Swiderski, whose daughter, Leona Swiderski. 33, was killed in 2003 while traveling with him to India after the couple got engaged. Desai and an acquaintance were acquitted in a murder trial in India, but he faces a federal charge of conspiracy to commit murder, handed down by a grand jury in U.S. District Court in Newark. He is fighting extradition from India and did not testify in the civil trial. 5-16-05

IOWA GOVERNOR BOUNCES CHECKS TO BARBER
There’s political corruption and then there’s just sloppy bookkeeping. Iowa Gov. Dirk Kempthorne admitted that while he knows about the state’s multi-billion-dollar budget, personal finances sometimes baffle him. That what he had to say when asked how he managed to bounce two checks totaling $111 to his hairdresser. The governor, who gets $152,000 in salary and housing allowances, added that the oversight occurred because he and his wife are too busy to discuss the status of their checkbook. He has since repaid the salon owner — in cash. 5-16-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, MONDAY, MAY 16, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, MAY 16, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON TUESDAY, MAY 17, 2005.


APPROVED FOR PUBLICATION
MENTAL HEALTH
IN RE CIVIL COMMITMENT OF A.E.F.
Appellate Division, A-6535-02T2, approved for publication May 16, 2005. (28 pages). Facts-on-Call Order No. 92462

To the extent that testifying experts relied on prior forensic evaluations in this Sexually Violent Predator Act case, any error was harmless because the prior evaluations were generally helpful to the appellant offender. Any error resulting from the experts’ consideration of the unproven conduct of the appellant also was harmless because all of the experts testified that their opinions would be the same without considering that conduct and because the hearing judge credited that testimony. In re Commitment of E.S.T. distinguished.

NOT APPROVED FOR PUBLICATION
INSURANCE
SAINT LOUIS v. ESTOK
Appellate Division, A-6326-03T2, May 16, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 17957

Order granting summary judgment for the defendant insurer on its motion for reconsideration and dismissing the plaintiff’s claim against the insurer affirmed; after receiving the plaintiff husband’s claim for personal injury protection following an accident, the insurer added him as a driver to the wife’s policy, but when the additional premium was not paid, the insurer cancelled the policy based on the wife’s “misrepresentation” in the initial insurance application, in which she had listed herself as “single” and did not include her husband as a resident, dependent, or regular operator; contrary to the plaintiffs’ arguments on appeal, the trial court did not abuse its discretion in granting reconsideration, the wife’s misrepresentation constituted fraud as a matter of law, and the defendant’s fraud defense was not barred by estoppel or waiver.

CONSUMER PROTECTION
KIRKLAND v. TOYOTA MOTOR SALES, USA, INC.
Appellate Division, A-4509-03T1, May 16, 2005, not approved for publication. (27 pages). Facts-on-Call Order No. 17960

Final decision of the Director of the Division of Consumer Affairs that adopted the administrative law judge’s initial decision that noxious odors permeated the petitioner’s new Lexus automobile and constituted a defect under the Lemon Law because the odors caused adverse physical effects to the petitioner and her family and that ordered the respondent to repurchase the vehicle affirmed; contrary to the respondent’s arguments on appeal, (1) the record contained substantial credible evidence to support the ALJ’s findings of fact and conclusions of law, (2) the ALJ properly considered the reports of both an Emergency Medical Services provider and a Bureau of Motor Vehicle Inspection and Maintenance official, (3) the ALJ evaluated the petitioner’s credibility, and (4) there was sufficient evidence to support the finding of a causal connection between the noxious fumes and the medical symptoms that the petitioner and her family suffered.

CIVIL PROCEDURE
OLDJA v. OLDJA
Appellate Division, A-4342-03T5, May 16, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 17956

Order dismissing the plaintiffs’ complaint for defamation and emotional distress on the basis of the one-year statute of limitations affirmed; the case arose when the defendants, who were relatives of the husband of one of the plaintiffs, accused the plaintiffs of being implicated in the man’s death, and a subsequent autopsy showed death by natural causes; the defamation claims were “clearly barred” by N.J.S.A. 2A:14-3 because the plaintiffs filed their complaint one year and nine months after the claims had accrued; a newspaper article that was not published within the statutory period and that merely reported the facts of the lawsuit and a dispute over the performance of an autopsy cannot be the basis of the defamation claim; because the complaint alleged that the emotional distress claims arose from the defamatory statements, §2A:14-3 also barred those claims, whether they were based on ordinary slander or slander per se.

DOMESTIC VIOLENCE
BIGELOW v. BIGELOW
Appellate Division, A-6917-03T2, May 16, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17959

Final domestic violence restraining order against the defendant ex-husband that barred him from the plaintiff ex-wife’s home and workplace affirmed; the plaintiff filed a domestic violence complaint after the defendant left a bag of toys on the front porch of the marital home for the parties’ children; based on (1) the parties’ history, which included the plaintiff’s allegations that the defendant had hit her during their marriage, (2) the Division of Youth and Family Services’ ongoing investigation of the defendant’s interaction with the children, and (3) the consent order for civil restraints that the parties entered into shortly after their divorce, which barred the defendant from the marital home “except for pick up and drop off of the children at the street end of the driveway,” the trial court’s findings were supported by the evidence, and the entry of the FRO was consistent with the domestic violence law.

HUSBAND AND WIFE
TROUPE v. TROUPE
Appellate Division, A-2653-03T2, May 16, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 17955

Post-divorce-judgment order denying the defendant ex-husband’s motion to modify his alimony obligation and granting the plaintiff ex-wife’s motion to require the defendant to pay accumulated medical bills, current medical insurance premiums, and credit-card balances (1) affirmed as to the denial of the ex-husband’s motion to reduce the alimony obligation, as to requiring him to pay the credit-card balances plus accumulated interest, and as to requiring him to reimburse the plaintiff for monthly medical insurance, (2) modified to reduce the defendant’s obligation on the medical debt to 80 percent of the accumulated expenses plus interest, according to the parties’ property settlement agreement, and (3) reversed as to imposing an obligation to pay the plaintiff’s future unreimbursed medical expenses, according to the PSA; among other things, the record “fully supported” the trial court’s findings and conclusions that the defendant did not show changed circumstances because he now earned more money than at the time of the divorce while the health of the plaintiff had not improved and her only income was disability benefits and alimony.

DRUNK DRIVING
STATE v. GEARY
Appellate Division, A-407-04T2, May 16, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17958

Conviction of driving while intoxicated and sentence as a third offender affirmed; a police officer saw the defendant drive his motorcycle in and out of lanes of traffic; the defendant did not obey the officer’s direction to pull over but continued to drive about one-half mile to his driveway; the officer detected that the defendant had a strong odor of alcohol on his breath, that his speech was slurred, that his eyes were bloodshot, and that he fumbled while looking for his driver’s license; the defendant was arrested after he failed to perform field sobriety tests successfully, and he later registered a .16 blood alcohol level on a Breathalyzer; the Appellate Division rejected the defendant’s arguments (1) that the evidence did not prove that he was under the influence beyond a reasonable doubt, (2) that the State did not prove that the Breathalyzer was properly operated, and (3) that the officer did not have a reasonable and articulable suspicion for the stop.


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