NEW JERSEY LAWYER

DAILY BRIEFING      05/27/2005


News Briefs

ANTI-RUNNERS STATUTE MAY BE CHALLENGED
New Jersey’s six-year-old criminal law prohibiting ambulance chasing — specifically the use of runners to bring in accident victims to lawyers — may be facing a constitutional challenge. That possibility was raised when two veteran lawyers, Irwin B. Seligsohn and Allen S. Goldberger of the West Orange firm Goldberger Seligsohn & Shinrod, pleaded not guilty in Newark to charges against them and the firm stemming from the alleged payment to runners some $65,000 to solicit clients. There are no criminal charges against the firm’s other partner, Edward Shinrod. The firm’s Newark attorney, Richard J. Sapinski, has indicated a constitutional challenge is being weighed. Seligsohn and Goldberger each have been in practice more than 40 years. 5-26-05

NJ FED COURT SAYS DIRECTV CAN’T SUE OVER PIRATING DEVICE
U.S. District Judge Jerome B. Simandle of Camden has ruled DirecTV has no cause of action under federal statutes against people for the mere possession of pirate-access devices. In dismissing part of a complaint against Thomas Romantini of Swedesboro, Simandle cited DirecTV v. Treworgy, a ruling last year by the 11th U.S. Circuit Court of Appeals. The appeals court had stated, “Possession of a pirate-access device alone, although a criminal offense creates nothing more than conjectural or hypothetical harm to [DirecTV].” In DirecTV v. Weikel, Simandle also noted other judges in federal court in New Jersey have ruled against DirecTV on the same point. (A full text of Weikel, Facts-on-Call Order No. 18008, can be ordered from NJL Online or by calling 800-670-3370.) 5-26-05

SERVICE FOR RETIRED JUDGE JOHN STROUMTSOS ON SATURDAY
A funeral service for C. John Stroumtsos, 83, a retired Middlesex County Superior Court judge, former assistant county prosecutor and assistant U.S. attorney, will be 10 a.m. Saturday at Saint George Greek Orthodox Church in Piscataway. A New Brunswick native and Harvard Law School graduate, he also held county and district level judicial seats, was the judge in the Middlesex County Juvenile and Domestic Relations Court in 1969, and was a partner at Hicks, Nagle and Stroumtsos. Stroumtsos retired from the bench in 1987. His nephew, Middlesex County Superior Court Judge Nicholas J. Stroumtsos Jr., is among the survivors. 5-26-05

NY BAR SAYS NO LINK BETWEEN EXAM SCORES AND LAWYER PROFIENCY
Affirming what many lawyers in New Jersey believe, the New York State Bar Association is saying there’s no correlation between higher state bar exam scores and increased lawyer proficiency in its fight against raising the passing score there. The state Board of Law Examiners’ proposal to increase the score to 675 from 660 is based on a “questionable assumption” that higher scores mean better lawyers, according to testimony from Bar Association President Kenneth G. Standard during a state legislature hearing. He said there are no studies indicating any such correlation and that a bar association committee is reviewing the examiner board’s methodology for wanting to raise the score. 5-26-05

DJ AWARDED $10.6M AFTER KNOCKED OFF THE AIR BY HEADY SCENT
Before she was fired in 2001, Michigan country music disc jockey Erin Weber had a little too much of a colleague’s perfume. The scent of Tresor turned out to be a knockout punch after, she claimed, she suffered breathing problems as the result of an earlier chemical spill in the studio. When Weber began missing work in 2001 because of what she said was severe allergic reactions to a co-worker’s perfume, she was fired. After eight days of deliberation, a six-woman federal jury in Detroit has awarded her $10.6 million in the discrimination suit against her former employer, Infinity Broadcasting Corp. She argued the fuss could have been avoided if the station had accommodated her health issues by having the co-worker stop wearing the scent. She also claimed the firing was, in part, retaliation for filing an Equal Employment Opportunity Commission complaint. The breakdown is $7 million in punitive damages, $2 million for mental anguish and emotional distress and $1.6 million for past and future compensation. 5-26-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, MAY 26, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, MAY 26, 2005:

NEGLIGENCE
SZALONTAI v. YAZBO’S SPORTS CAFE
New Jersey Supreme Court, A-6, May 26, 2005. (29 pages). Facts-on-Call Order No. 92480

In a negligence case, the plaintiff must meet all three elements of res ipsa loquitur before the burden of persuasion shifts to the defendant, and the failure to prove any one of the elements by a preponderance of the evidence renders the doctrine and its concomitant burden-shifting unavailable to that plaintiff. Discovery in civil cases that are subject to discovery track assignment must be timely completed, and additional discovery time is available only in the limited circumstances identified in Rule 4:24-1(c). Justice Long concurred in part and dissented in part.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, MAY 27, 2005.



APPROVED FOR PUBLICATION
EMPLOYMENT LAW
BEASLEY v. PASSAIC COUNTY
Appellate Division, A-2780-03T3, approved for publication May 26, 2005. (30 pages). Facts-on-Call Order No. 92481

In an action by a county employee under the Conscientious Employee Protection Act, the judgment of liability was reversed because the trial court erroneously admitted hearsay testimony that the plaintiff was told by his boss that “downtown” wanted him fired. Under CEPA, the definition of retaliation does not require that all adverse employment actions be functionally equivalent to a demotion or a suspension, and a pattern of conduct by an employer that adversely affects an employee’s terms and conditions of employment may qualify as retaliation.

CONSUMER PROTECTION
DABUSH v. MERCEDES-BENZ USA, INC.
Appellate Division, A-970-03T5, approved for publication May 26, 2005. (22 pages). Facts-on-Call Order No. 92482

In a Consumer Fraud Act action alleging that the defendant automobile lessor misrepresented the scope of a navigation system’s coverage in a marketing brochure, the plaintiff lessee failed to demonstrate an ascertainable loss of money or property under the Act; he had no actual loss, and he did not establish that he had paid a higher price for a less-effective product, which prevented him from prevailing on a benefit-of-the-bargain theory.

CRIMINAL TRIALS
STATE v. GAINES
Appellate Division, A-4428-01T4, approved for publication May 26, 2005. (18 pages). Facts-on-Call Order No. 92483

In the case of a criminal defendant who was charged with murder and who was convicted of aggravated manslaughter, submission of the lesser-included offense was proper and omission of the model jury charge on identification was harmless error.

MENTAL HEALTH
IN RE CIVIL COMMITMENT OF V.A.
Appellate Division, A-2345-03T2, approved for publication May 26, 2005. (10 pages). Facts-on-Call Order No. 92484

The “Written Plan for the Provision of Resident Care” that was submitted by the Department of Human Services constituted a good faith, preliminary attempt at complying with the Appellate Division’s directive in its 2003 decision in In re Commitment of V.A. to “develop and implement within a reasonable amount of time the programs and systemic protocols necessary to bring about the gradual de-escalation of restraints” on individuals who are committed under the Sexually Violent Predator Act. Because the treatment modalities contained in the Plan fall within the scope of N.J.S.A. 30:4-27.34d, the Department must begin the process of promulgating regulations that reflect those standards of care forthwith.

NOT APPROVED FOR PUBLICATION
ATTORNEY’S FEES
VAN GINNEKEN v. QUICK CHEK FOOD STORES
Appellate Division, A-1644-03T3, May 26, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18013

Portion of an order entered on remand that awarded an attorney $18,396 in attorney’s fees plus post-judgment interest for trial work in a sexual harassment action affirmed, but portion of the order that denied attorney’s fees and costs for the appeal of the fee award reversed; in a prior order remanding for recalculation of the attorney’s fee award, the Appellate Division had stated that the award could include a fee for his appeal of the award; in this post-remand appeal, the Appellate Division was in “substantial agreement” with the trial judge’s reasons for his award of trial fees, but it “was constrained to express … displeasure at the trial judge’s refusal to address” the issue of fees for the appeal of the award, and it found “no valid reason” for that refusal; the Appellate Division exercised its original jurisdiction to award the attorney $9,500 in fees plus costs and post-judgment interest for his work on the appeal of the award.

INSURANCE
SOUTH JERSEY DIAGNOSTICS v. AAA MID-ATLANTIC INSURANCE CO.
Appellate Division, A-4144-03T1, May 26, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18012

Orders (1) granting the defendant insurer’s motion to dismiss the three consolidated complaints of the plaintiff medical service providers for personal injury protection benefits assigned to them by the insured and (2) denying the plaintiffs’ motion for reconsideration reversed and remanded; the defendant denied the plaintiffs’ claims because of the insured’s purported failure to comply with his insurance policy by obtaining the defendant’s written consent before assigning his PIP benefits; at the trial, the plaintiffs objected to the policy belatedly provided by the defendant to the trial court; although the insured’s policy was the “critical, controlling document,” the policy provided by the defendant, which was neither the original nor a certified copy, lacked the requisite foundation, and the trial court should not have considered and relied on this “incompetent, inadmissible evidence.”

PUBLIC EMPLOYEES
DEVLIN v. DUNBAR
Appellate Division, A-252-03T3, May 26, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18014

Summary judgment for the defendant employer and supervisors in an action by the plaintiff retired State Police lieutenant alleging violation of N.J.S.A. 34:19-3(a) and (c) of the Conscientious Employee Protection Act, defamation, and false light invasion affirmed; the plaintiff’s CEPA claim alleged that he was not promoted after he objected to asking a State Trooper to submit to a consent search; because there was no evidence of a disclosure or of a threat of disclosure to anyone, §34:19-3(a) did not apply, and §34:19-3(c) was not violated where there was no evidence that the plaintiff “objected or refused to participate in requesting a consent search”; the doctrine of qualified privilege required that summary judgment be entered for the defendants on the defamation and false light invasion claims.

DOMESTIC VIOLENCE
DEPUTY v. GASSAR
Appellate Division, A-5855-03T1, May 26, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18011

Entry of a final domestic violence restraining order — barring the defendant ex-husband from several places in New Jersey and from communicating with, harassing, or stalking the plaintiff ex-wife — affirmed but remanded for entry of an amended FRO; the parties were divorced in New York, where the defendant lived when the alleged domestic violence occurred; contrary to the defendant’s argument, substantial credible evidence supported the findings and conclusions of the Family Part as to whether an act of domestic violence had occurred; however, the Family Part lacked personal jurisdiction over the defendant due to a lack of evidence of his sufficient minimum contacts with New Jersey; although the FRO was “fully enforceable” in New Jersey, the Family Part had no authority to impose a civil penalty or a surcharge on the defendant or to require him to submit to fingerprinting or other identification procedures.


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