NEW JERSEY LAWYER

DAILY BRIEFING      05/24/2005


News Briefs

CORRECTIONS BOSS TALKS BACK ON PRISON GANGS
Corrections Commissioner Devon Brown is saying thanks but no thanks to legislators who have organized a task force to study the role of gangs in the state’s prisons. “We recognize that every system has room for improvement. However, we do not advocate the approach that has been taken in this regard. Moreover, this department was not included, consulted nor had any input in the dialogue regarding the formation of this task force,” he said in a statement, reacting to last week’s announcement of the 12 task force members. Assemblyman Jeff Van Drew (D-Cape May) called for the group’s formation in response to a New Year’s Day disturbance at Bayside State Prison in Cumberland County, in which 29 corrections officers were injured. Brown did say he won’t snub the task force, though. “We welcome the opportunity to make known our outstanding approach and strategies in the identification, control and elimination of gang presence in our prisons.” 5-23-05

DIALOGUE PLANNED ON ANIMAL WELFARE PROPOSALS
With the state’s animal welfare system targeted for an overhaul, the New Jersey State Bar Foundation will host a seminar Wednesday, June 8, on the recommendations of a task force established by former Gov. James E. McGreevey. The Animal Welfare Task Force reported last November that the animal welfare system in the state, now dominated by the SPCA, should be re-organized to include more involvement by sheriff’s departments and local police. In the meantime, the state SPCA is trying to avoid being put in the back seat, demanding better performance from its county branches. In several cases, the SPCA has taken its own chapters to court to enforce its authority. The free public seminar will be held at the New Jersey Law Center, One Constitution Square in New Brunswick from 7 to 9 p.m. Sherry L. Ramsey, chairwoman of the Bar’s Animal Law Committee and a member of the governor’s task force, will moderate. Advance registration is required. Log on to njsbf.org or call 800-FREE-LAW. 5-23-05

WRONGFUL DEATH CASE SETTLES FOR $400,000
An Ocean County case in which a doctor was accused of delaying a cancer diagnosis has settled for $400,000. In Roper v. Clachko, Donald Roper of Cedar Run had accused Dr. Marc Clachko, a River Edge obstetrician-gynecologist, of failing to diagnose his late wife’s endometrial cancer until it had reached stage 4. Marlene Roper had gone to Clachko in February 2000, complaining of vaginal bleeding. Her cancer was not diagnosed until March 2002, by which time the cancer had spread to her lungs and bones. She died in April 2003 at age 64. Roper was represented by Jane S. Kelsey of Lum Danzis Drasco & Positan of Roseland, and William J. Buckley of Marshall Dennehey Warner Coleman & Groggin of Roseland represented the defendant. 5-23-05

THE DERBY, THE PREAKNESS — THE LAWSUIT
With two of this year’s Triple Crown races in the books, the smart money is on Litigation. No, that’s not a horse. Jose Santos, the jockey who rode Funny Cide to victory in the 2003 Kentucky Derby, is suing The Miami Herald Publishing Co. for defamation for an article that suggested he was carrying an illegal electronic device in addition to his whip. Racing stewards later said there was no such device and that a photo on which the newspaper relied for its reporting was an optical illusion. Santos contends his heavily accented English led to the paper mistakenly quoting him as saying he was carrying a “cue” ring. Racing experts quoted in the story hadn't heard of cue rings. The jockey said he was talking about a “Q-Ray” bracelet he wears for arthritis. The case was filed in circuit court in Broward County, Fla.; an earlier suit filed in U.S. District Court in Kentucky was dismissed on jurisdictional grounds. 5-23-05

AUSTRIAN PUSHES DNA ‘SCOOPER’ LAW
Here’s a possible area for expanding the “CSI” television franchise. A Viennese official wants to use DNA technology to analyze the circumstantial evidence left behind by dog owners who don’t clean up after their pets. Manfred Juraczka, a district council member, wants owners to register their dogs’ DNA so offenders of the city’s pooper-scooper law can be sniffed out and fined. In addition to the fine, they would, of course, have to pay for the DNA analysis, estimated at about $300. Juraczka’s proposal comes after less drastic means of persuasion have apparently failed to rid the city’s sidewalks of dog waste. “This method offers a multitude of unbeatable advantages,” Juraczka said, adding that scofflaws “must count on being caught.” The opposition party denounced his proposal as a “police state” measure. 5-23-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, MONDAY, MAY 23, 2005
THE FOLLOWING OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, MAY 23, 2005:

INSURANCE
CUMBERLAND MUTUAL FIRE INSURANCE CO. v. MURPHY
New Jersey Supreme Court, A-46, May 23, 2005. (31 pages). Facts-on-Call Order No. 92472

An equally divided court affirmed the judgment of the Appellate Division that the occurrence in this case — the insured’s teenage son firing a BB gun at passing cars and injuring a driver — was an “accident” within the meaning of the insured’s homeowner’s policy and therefore was not excluded from coverage. Justice Long concurred, and Justice Wallace and Justice Rivera-Soto dissented.

SEXUAL OFFENSES
STATE v. R.B.
New Jersey Supreme Court, A-51, May 23, 2005. (51 pages). Facts-on-Call Order No. 92473

In a case involving sexual offenses, (1) the minor victim’s statements were properly admitted without reservation under the tender years exception to the hearsay rule, (2) the jury instructions, which differed from the model charge, clearly communicated the purpose and limitations of evidence of Child Sexual Abuse Accommodation Syndrome and were sufficient under the circumstances, and (3) the prosecutor’s remarks during summations did not constitute prosecutorial misconduct. Justice Albin dissented.

THE SUPREME COURT has announced that it will release opinions in MUNICIPAL COUNCIL OF THE CITY OF NEWARK v. JAMES, A-52, and STATE v. O’BRIEN, A-36/75, on May 24, 2005. The issue on appeal in Municipal Council of the City of Newark addresses whether, under the Faulkner Act, the authority to negotiate and execute contracts for the purchase of real property on behalf of a municipality rests with the mayor or with the council. The issues on appeal in O’Brien address whether the prosecutor’s cross-examination of a defense expert on the issue of insanity was so inappropriate and harassing that a retrial was required and whether the trial court’s questioning of potential jurors was adequate.



APPROVED FOR PUBLICATION
NEGLIGENCE
KNIGHT v. ESSEX PLAZA
Appellate Division, A-3564-03T1, approved for publication May 23, 2005. (23 pages). Facts-on-Call Order No. 92474

In an action arising from an injury caused when an automatic door closed on the plaintiff, the plaintiff required an expert to establish the first element of res ipsa loquitur — that such an accident was unlikely to happen in the absence of negligence — because common knowledge and experience would not permit a jury to determine the probability of a malfunction in the absence of the defendant’s negligence.

CRIMINAL TRIALS
STATE v. DOMICZ
Appellate Division, A-6101-02T4, approved for publication May 23, 2005. (65 pages). Facts-on-Call Order No. 92475

The Appellate Division reversed and remanded the denial of the defendant’s motion to suppress numerous marijuana plants that were found in his home (1) because the warrantless thermal scan of the defendant’s home was unlawful, (2) because, as a matter of first impression, the warrantless search and seizure of power company records of the amount of electricity used in the defendant’s home violated Article I, paragraph 7 of the New Jersey Constitution, and (3) because, as a matter of first impression, the trial judge erroneously excluded expert testimony about the results of the defendant’s polygraph test because State v. McDavitt does not apply to a trial judge’s determination of whether to suppress evidence.

NOT APPROVED FOR PUBLICATION
JUDGMENTS
FELDMAN v. DELANEY
Appellate Division, A-739-04T3, May 23, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17988

Denial of the plaintiff doctor’s application for a wage execution against the defendant wife of a former patient and denial of his motion for reconsideration affirmed in an action to recover fees for professional services rendered; the doctor sued and allegedly served both the patient and his wife in 1989, a default judgment was entered in 1990, and answers to an information subpoena were provided in 1992; however, no further action was taken until July 2004, when the doctor sought to garnish the wife’s wages; in response, the wife asserted that the outstanding medical bill belonged to her deceased ex-husband and that she was not responsible because she and her husband were separated at the time that the services were rendered; the application for the wage execution was properly denied because the doctor did not present “satisfactory proofs” that a valid judgment had been entered against the wife, as required by N.J.S.A. 2A:17-50.

WORKERS’ COMPENSATION
BRANCH v. EARTH TECH
Appellate Division, A-1562-03T2, May 23, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 17989

Summary judgment for the defendant general contractor and the defendant supervisor, who was the general contractor’s employee, based on the exclusive remedy provision of the Workers’ Compensation Act affirmed; the plaintiff was a union worker who was hired out of his union hall and through a personnel supplier to work for the general contractor; the personnel supplier paid the plaintiff, but the plaintiff received instructions about where to go and what to do from the supervisor; the plaintiff was injured when he fell while loading and unloading a truck at the site and brought a negligence action against both defendants; based on the undisputed evidence, the trial court properly concluded that the plaintiff was a “special employee” of the general contractor, and the defendants were therefore entitled to summary judgment under the Act.

COMMERCIAL TRANSACTIONS
INTEK AUTO LEASING, INC. v. TND TRUCKING CORP.
Appellate Division, A-609-04T5, May 23, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 17987

Final judgment awarding the defendant towing company $6,853 plus post-judgment interest and costs on its counterclaim for towing and storage fees against the plaintiff lessor of trucks affirmed; the plaintiff sued for release of a truck after the towing company had towed and stored the abandoned, unregistered truck leased by the plaintiff to the co-defendant and no one was willing to pay the towing and storage fees; contrary to the plaintiff’s arguments on appeal, the trial court did not err (1) by applying the New Jersey Supreme Court’s decision in Gen. Elect. Capital Auto v. Violante because the grant of certification in that case after the towing company had indicated that it was holding the truck should have alerted the plaintiff that the Appellate Division’s decision in Gen. Elect. could be reversed and (2) in determining that the plaintiff was liable for towing and storage fees under a local ordinance for one period and for storage fees under N.J.S.A. 2A:44-21 for another period.

MENTAL HEALTH
IN RE CIVIL COMMITMENT OF J.X.W.
Appellate Division, A-3875-04T2, May 23, 2005, not approved for publication. (5 pages). Facts-on-Call Order No.17990.

Order continuing the appellant’s commitment as a sexually violent predator under the Sexually Violent Predator Act affirmed; the Law Division rejected the testimony of the appellant’s expert that the 54-year-old appellant’s age made him “less than highly likely to reoffend,” and it found the opinion of the State’s expert that the appellant “has serious difficulty controlling his sexual behavior” and “is highly likely to recidivate” to be credible; the record was sufficient to support the Law Division’s decision to continue the appellant’s commitment; contrary to the appellant’s argument on appeal, the matter should not be remanded to enter an order directing the development of a discharge plan because the appellant had not cooperated with previous efforts to develop a discharge plan.

MEDICAL MALPRACTICE
EDMONDS v. ST. FRANCIS MEDICAL CENTER
Appellate Division, A-7109-03T5, May 20, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 17986

Dismissal of the plaintiff inmate’s medical malpractice complaint for failure to provide an affidavit of merit affirmed; after the plaintiff received treatment for a toe deviation, an infection led to gangrene and amputation of the toe; the trial court correctly dismissed the complaint because the plaintiff’s claim involved issues that were not within the common knowledge of laypersons, including the proper standard of care for treating his particular condition and whether a deviation from the standard of care was a proximate cause of the loss of his toe.

MEDICAL MALPRACTICE
BENDER v. ADELSON
Appellate Division, A-5952-03T3, May 20, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 17985

Denial of the defendant cardiologists’ motions to serve three expert reports out of time and for judgment notwithstanding the verdict after a jury awarded the plaintiff $1,625,000 in a medical malpractice action affirmed; the expert reports were served on the plaintiff before the end of discovery but after the deadline for serving expert reports that was specified in a consent order; the trial court did not abuse its discretion by denying the discovery motion (1) where it was “not clear” that defense counsel had diligently sought the required experts, (2) where the defendants had requested the consent order, and (3) where the sanction was not so severe that it was “repugnant to the fair and efficient administration of justice”; the trial court correctly denied the motion for judgment notwithstanding the verdict because the record contained evidence that was sufficient to support the jury’s verdict.

DRUNK DRIVING
STATE v. SLAVIN
Appellate Division, A-6680-03T1, May 20, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 17984

Conviction of driving while intoxicated and sentence of a six-month revocation of driving privileges affirmed; at the time of the defendant’s arrest, N.J.S.A. 39:4-50(a)(1) provided that the penalty for a first offense was the loss of driving privileges “for a period of not less than six months”; by the time of the defendant’s trial, §39:4-50(a)(1) had been amended to provide that the penalty for some first offenses is a three-month loss of driving privileges; the defendant was correctly sentenced according to the penalty provisions that were in effect at the time of his offense because nothing in the amended statute makes it apply retroactively to offenses that were committed before its effective date and because there was not “the slightest suggestion in the legislative history” that the legislative intent was to apply the more lenient sentence to offenses that were committed while the former statute was in effect.


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