NEW JERSEY LAWYER

DAILY BRIEFING      06/03/2005


News Briefs

STATE A.G. SEEKS CRIMINAL OFFENSE INFO ABOUT GRACE
The Attorney General’s Office is considering filing criminal charges against W.R. Grace & Co, which already is facing a state civil suit over the release of cancer-causing asbestos fibers at a plant Grace operated in Hamilton Township. “We will continue to review all the facts and all legal options available,” said Attorney General Peter C. Harvey. In N.J. Department of Environmental Protection v. W.R. Grace, filed in Mercer County, the state says it is seeking up to $1.6 billion from the construction-materials company for violating state environmental laws years ago when 15,000 tons of contaminated materials spilled at its site and the company allegedly intentionally failed to report it. 6-02-05

DENNIS DRASCO AND THE VANISHING TRIAL
Dennis J. Drasco of Roseland’s Lum Danzis Drasco and Positan has emerged as one of the profession’s leading thinkers on one of its thorniest problems — the vanishing trial. As chairman of the American Bar Association’s litigation section, he has traveled around the country participating in panels reviewing the phenomenon of the steadily declining percentage of cases that reach trial. It's an issue saddling lawyers with problems that will worsen over time, he says. For a full story, see the June 6 New Jersey Lawyer. 6-02-05

BANKER ADMITS TO FLEECING A LAWYER TRUST ACCOUNT
When attorney trust accounts are tampered with, it may not be the lawyers who are to blame. A Pequannock man is scheduled to be sentenced July 1 for fleecing $30,000 from Passaic County Superior Court Judge Raymond A. Reddin while the judge was in private practice in Totowa. Jerome Gooden admitted in Morris County Superior Court that, while he worked as an assistant manager at a Pompton Lakes bank that handled Reddin’s trust account, he orchestrated a scheme that took $30,000 from the account by electronically forging Reddin’s signature on checks. Gooden pled guilty to conspiracy to commit theft and faces up to five years in prison. Two accomplices pled guilty and received probation, and two others are fugitives. 6-02-05

HOLOCAUST-VICTIMS LAWYER SLAMS OAE
Edward D. Fagan, the Livingston attorney accused of misappropriating money he helped secure for Holocaust victims, denies the charges and accuses the Office of Attorney Ethics with misrepresenting the facts in the matter. In his response to the OAE’s complaint, Fagan further said the office should not have revealed information about his alleged victims and asked for the removal of John McGill II, the OAE deputy ethics counsel handling the matter. There was no immediate comment from the OAE, which on Dec. 6 filed the complaint alleging that in 1996 Fagan began making unauthorized disbursements to his business from a settlement fund for one of his Holocaust clients and from the estate of another. Fagan is among the lawyers who reached $6 billion in settlements from Swiss banks and German businesses sued for allegedly profiting from Holocaust victims’ assets and forced labor. 6-02-05

WIDOW CAN’T SUE SELLER OF GUN USED TO KILL HUSBAND
In the latest attempt by shooting victims to pin liability on the maker or distributor of a gun, a Florida appeals court has shot down a widow’s suit seeking damages from a West Palm Beach distributor. Pam Grunow alleged that Valor Corp. was negligent because the gun it sold was used by a middle-school student to kill her husband, the boy’s teacher, in 2000. The appellate panel said the student, his family or the school may have been negligent, but not Valor. Grunow appealed after a trial judge threw out a jury’s $1.2 million award. 6-02-05



Today's Decision Summaries

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.)

FROM THE NEW JERSEY SUPREME COURT, THURSDAY, JUNE 2, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, JUNE 2, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON FRIDAY, JUNE 3, 2005.


APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON THURSDAY, JUNE 2, 2005.

NOT APPROVED FOR PUBLICATION
 
NO OPINIONS NOT APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON THURSDAY, JUNE 2, 2005.

THE FOLLOWING OPINIONS NOT APPROVED FOR PUBLICATION HAVE BEEN RELEASED:


PREMISES LIABILITY
RUIZ v. ATLANTIC COUNTY UTILITIES AUTHORITY
Appellate Division, A-6284-03T1, May 31, 2005, not approved for publication. (18 pages). Facts-on-Call Order No. 18037

Jury verdict of no cause of action in a personal injury case based on a finding that the defendant utilities authority’s facility was not in a dangerous condition on the date of the alleged injury affirmed; the plaintiff police detective claimed that he had been struck by a falling support pole at the facility while refueling his police vehicle; the defendant contested that the alleged incident occurred, and it supplied computer records that indicated that the plaintiff’s vehicle was not present at the scene of the alleged incident; contrary to the plaintiff’s arguments on appeal, the trial court did not abuse its discretion (1) by admitting the computer records into evidence, (2) by denying the admission of a photograph of the base of another support pole at the defendant’s facility, or (3) by permitting the use of a photograph of the base of the pole that allegedly fell to impeach a defense witness’s credibility but not to demonstrate that a dangerous condition existed at the time of the alleged incident.

UNEMPLOYMENT COMPENSATION
KOPP v. BOARD OF REVIEW, DEPARTMENT OF LABOR
Appellate Division, A-2163-03T5, May 31, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18035

Denial of the claimant licensed practical nurse’s application for unemployment benefits affirmed; the claimant tested positive for tuberculosis when she was hired and therefore was legally required to submit to a chest X-ray; the claimant refused because she had recently undergone a chest X-ray, but she failed to supply the results of that X-ray to the employer, which gave her almost one year to do so; when the claimant was told that she could not work because she had not submitted the X-ray results, she was escorted from the building after an argument; the claimant re-entered the building and was told during another argument that she was terminated; the Board of Review’s decision — which affirmed the Appeal Tribunal’s determination that the claimant was disqualified from receiving unemployment benefits under N.J.S.A. 43:21-5(a) due to her refusal to submit to a new X-ray or supply past X-ray results — was not arbitrary, capricious, or unreasonable.

HUSBAND AND WIFE
SCHWEFRINGHAUS v. SCHWEFRINGHAUS
Appellate Division, A-3199-03T5 and A-3234-03T5, May 31, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 18036

Portion of a post-divorce-judgment order that required the plaintiff ex-husband to pay the defendant ex-wife the greater of $584 or one-half of his monthly pension benefit and that denied the defendant’s request for pension payment arrears affirmed, but portion of the order that required the plaintiff to continue paying alimony and to maintain life insurance policies for the defendant remanded; as to pension benefits, there was no basis to deviate from the payment terms set forth in the parties’ property settlement agreement, and the trial court did not abuse its discretion by denying the defendant’s request for arrears; as to alimony, discovery and a plenary hearing should have been granted because the evidence of the defendant’s cohabitation raised a rebuttable presumption of changed circumstances; as to life insurance, the order contained no rationale for requiring the plaintiff to maintain the policies, and there was no decision that set forth the required findings of fact and conclusions of law.

PARENT AND CHILD
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. W.B.
Appellate Division, A-912-04T4, May 31, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18034

Order terminating the parental rights of the defendant mother to her son affirmed substantially for the reasons expressed by the trial court; the trial court applied the four prongs of N.J.S.A. 30:4C-15.1 to determine (1) that the son’s health and development were endangered because he had been born in 2001 with cocaine in his system, because the mother failed to obtain prenatal care, and because she was unfit to parent due to her “unresolved drug and mental health issues,” (2) that the mother’s continuing inability to care for the son indicated that she could not eliminate or minimize the harm to him, (3) that the plaintiff Division of Youth and Family Services had proved that it had reasonably assisted the mother to correct the circumstances that led to the son’s placement in foster care and had assisted with possible extended family reunification as an alternative to termination but to no avail, and (4) that the termination would not do more harm than good.

FROM THE ADMINISTRATIVE AGENCIES
PENSIONS AND BENEFITS
COOPER v. STATE POLICE RETIREMENT SYSTEM
OAL Docket No. TYP 4300-03, Agency Docket No. SPRS 8-10-3069, Initial Decision: March 21, 2005, Final Agency Decision: May 26, 2005. By Fidler, ALJ. (14 pages).

The Board of Trustees of the State Police Retirement System accepted the administrative law judge’s initial decision that affirmed the Board’s denial of the petitioner African-American State Trooper’s application for accidental disability retirement benefits. Beginning in 1989, the petitioner observed other Troopers use racial profiling and racial slurs, and he claimed to have faced retaliation later for informing supervisors about the use of racial profiling. After a rumor circulated that he had videotaped a white Trooper making an arrest, the petitioner became wary of going to the firing range and of “phantom forces in the rank and file.” The petitioner did not return to work after he received no response to his request for back-up assistance during a traffic stop in 1999. Although the ALJ agreed that the petitioner experienced a racially hostile work environment that ultimately caused his permanent and total disability, he concluded that the effect of protracted harassment on the petitioner’s mind could not be viewed as an injury with a source that was comparable to “a great rush of force or uncontrollable power” and that the petitioner therefore had not experienced a traumatic event under Kane.

PENSIONS AND BENEFITS
MIDDLESEX COUNTY v. STATE HEALTH BENEFITS COMMISSION
OAL Docket Nos. TYP 8146-96, 6239-97, 6240-97, 6880-97, 6881-97, 6882-97, 8184-97, 9330-97, 2106-97, 10833-96, and 8183-97, Initial Decision: March 8, 2005, Final Agency Decision: May 4, 2005. By Metzger, ALJ. (8 pages).

The State Health Benefits Commission adopted the administrative law judge’s decision (1) that affirmed the Commission’s ruling that the petitioners, who were local employers who had participated in the State Health Benefits Program, were not entitled to share in the surpluses that had accumulated in the Commission’s fund for local employees before they withdrew from the Program and (2) that the Commission had properly sought and collected interest from the petitioner Middlesex County and its instrumentalities when they did not timely pay premiums that were due upon leaving the Program. The ALJ observed that N.J.S.A. 52:14-17.45 requires dividends and rate credits to be shared among “participating employers” but that the regulatory scheme does not specifically provide for surpluses to be distributed to former members. The ALJ found nothing to compel a distribution in the absence of both a specific requirement and unclean hands, and he concluded that the Commission’s ruling was not arbitrary, did not breach a fiduciary obligation, and did not require rulemaking. The ALJ also found no merit in the Middlesex County petitioners’ claim that they had overpaid when they left the Program.

SPECIAL EDUCATION
UNION TOWNSHIP BOARD OF EDUCATION v. R.G.
OAL Docket Nos. EDS 7812-04 and EDS 7813-04, Agency Docket Nos. 2005 9255 and 2005 9278, Final Agency Decision: March 31, 2005, released for publication May 5, 2005. By McGill, ALJ. (21 pages).

The administrative law judge ordered the dismissal of both the parent’s and the Board of Education’s due process petitions that sought to change the placement of the 13-year-old multiply disabled student. The ALJ found as fact the “extensive testimony” of school officials about the student’s behavior, and he found that the student’s behavior impeded his learning. The ALJ concluded that the Board failed to demonstrate that its proposed placement at the Cranford Alternative Middle School was appropriate where it did not conduct a functional behavioral assessment of the student under N.J.A.C. 6A:14-3.4(d)2, where it did not include a behavioral intervention plan in the student’s individualized education program under N.J.A.C. 6A:14-3.7(c)3, and where its proposed placement was not based on the current IEP under N.J.A.C. 6A:14-4.2(a)5. The ALJ also concluded that these deficiencies in the process undermined the parent’s choice of a placement and that the parent failed to demonstrate that her proposed placement at the Newgrange School in Hamilton was appropriate based on the lack of a program to handle the student’s behavioral issues at the school and the distance between Union Township and Hamilton.


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.