NEW JERSEY LAWYER

DAILY BRIEFING      08/03/2005


News Briefs

BAR ASSOCIATION JOINS BATTLE AGAINST MED-MAL CAP BILL
The New Jersey State Bar Association is calling on the state’s U.S. senators, Democrats Jon S. Corzine and Frank M. Lautenberg, to oppose a House-passed measure now before the Senate that would cap medical malpractice awards for pain and suffering, and shield makers of drugs and medical devices from liability in certain cases. The measure, H.R. 5, would deprive injured patients rights to compensation and pre-empt states’ rights to administer medical malpractice laws, says the letter signed by Bar Association President Stuart A. Hoberman. Echoing a concern that the Association of Trial Lawyers of America has already expressed, the letter also says the bill wouldn’t meet its intended goal of lowering medical malpractice premiums. In the House vote, all six of the state’s Republican members voted for the bill; six of seven Democrats opposed it. Rep. Robert E. Andrews, the Democrat from Camden County, did not vote. The legislation, though, is said to be no sure thing in the Senate. 8-2-05

PLAINTIFF-LAWYER AWARDED $3 MILLION IN MED-MAL CASE
An Essex County jury awarded $3 million to a lawyer injured by an unlicensed therapist at a Newark rehabilitation center. In McManus v. HealthSouth Sports and Rehabilitation Center, Jeanne Ann McManus of Weiner Lesniak in Parsippany testified she had gone to HealthSouth in July 2001 as part of her recovery from rotator-cuff surgery, but the treatment by an unlicensed aide caused the cuff to re-tear and fracture a shoulder bone. Additional surgery repaired the cuff, but the fracture resulted in permanent weakness and an indentation in McManus’ shoulder. The jury in a two-week trial before Judge Marie P. Simonelli assigned 70 percent liability to HealthSouth and 30 percent to the aide. The surgeon, Dr. Marc Cohen of Madison, was exonerated. Jane S. Kelsey, a partner with Roseland’s Lum, Danzis, Drasco & Positan, represented McManus; Eileen Bass Rudd of Hardin, Kundla, McKeon, Poletto & Polifroni in Springfield defended HealthSouth and the aide; and Keith G. VonGlahn of Wilson Elser Moskowitz Edelman & Dicker in Newark defended Cohen. HealthSouth had filed a third-party action alleging improper surgery by Cohen caused the subsequent injuries. 8-2-05

MEDIA SIDES WITH INSURERS IN LOBBYING WAR
Don’t count on the local media to assist trial lawyers in their fight against legislation to undo the New Jersey Supreme Court decision that makes it easier for accident victims to sue for pain and suffering. So far, the daily press has editorialized in favor of such legislation. The latest came from the The Times of Trenton, which warned if the high court’s recent ruling in DiProspero v. Penn isn’t overturned by legislation now in committee, insurance premiums would rise and insurers abandon the state. The message is similar to one expressed by the state’s second-largest auto insurer, New Jersey Manufacturers Insurance Co., in a mass mailing to policyholders. The Asbury Park Press previously criticized DiProspero, the ruling that said those suing for non-economic damages as a result of an auto accident needn’t prove their injuries had a substantial impact on their lifestyle. 8-2-05

TEANECK SETTLES ONE OF THREE SUITS BY DISGRUNTLED FIREMAN
It’s one down and two to go for Teaneck Township’s defense of workplace-related suits filed by one of its firemen. The township agreed to pay William Brennan $173,000 plus $549,203 in fees to his attorney, Robert L. Herbst of New York, in a federal suit alleging fire department brass retaliated against him for speaking out against the township and the department when he was a union official several years ago. In pending state suits, Brennan alleges then-Mayor Paul Ostrow violated the firefighter’s civil rights by summoning police to remove him from a council meeting in 2000, and claims township officials and fire department superiors have retaliated because of his other litigation. 8-2-05

BIG CITY BILLING RATES ON THE RISE
A survey by Delaware-based Helder Associates of nearly 260 law firms in large cities nationwide found about 20 percent of partners reported billing rates of $500 per hour or higher, a 5 percent increase over last year. The average for first-year associates is $167.



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, TUESDAY, AUGUST 2, 2005:
THE FOLLOWING OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, AUGUST 2, 2005:

SENTENCING
STATE v. NATALE
New Jersey Supreme Court, A-82/83, August 2, 2005. (51 pages). Facts-on-Call Order No. 92606

A sentence beyond the presumptive statutory term that is based solely on a judicial finding of aggravating factors other than a prior criminal conviction violates the defendant’s Sixth Amendment jury trial guarantee. Presumptive terms under the Code of Criminal Justice are eliminated, and judges must sentence defendants within the statutory range for the offense after weighing the aggravating and mitigating factors. This is a companion case to State v. Abdullah and State v. Franklin.

SENTENCING
STATE v. ABDULLAH
New Jersey Supreme Court, A-73, August 2, 2005. (31 pages). Facts-on-Call Order No. 92607

The powers of a judge under the Code of Criminal Justice to sentence a defendant to a term of life imprisonment for murder, to a period of parole disqualification under N.J.S.A. 2C:43-6(b), and to consecutive sentences for multiple convictions do not violate the Sixth Amendment. This is a companion case to State v. Natale and State v. Franklin.

SENTENCING
STATE v. FRANKLIN
New Jersey Supreme Court, A-64, August 2, 2005. (36 pages). Facts-on-Call Order No. 92608

The second-offender provision of the Graves Act, which permits the imposition of an extended term based on judicial fact-finding by a preponderance of the evidence, violates a defendant’s Sixth Amendment right to a jury trial and his Fourteenth Amendment right to due process. This is a companion case to State v. Natale and State v. Abdullah.

 
THE SUPREME COURT has announced that it will release an opinion in STATE v. KEYES, A-70, on August 3, 2005. The issue on appeal in Keyes addresses whether a tip from a reliable informant was sufficient to support probable cause for the issuance of a search warrant, even though there was neither evidence to establish the basis for the informant’s knowledge nor corroboration of any information that was contained in the tip.


APPROVED FOR PUBLICATION
EMINENT DOMAIN
MOUNT LAUREL TOWNSHIP v. MIPRO HOMES, L.L.C.
Appellate Division, A-6766-02T1 and A-3201-03T1, approved for publication August 2, 2005. (28 pages). Facts-on-Call Order No. 92609

A municipality’s selection of a particular property to condemn for open space in order to slow residential development does not constitute an abuse of the eminent domain power.

PUBLIC RECORDS
PAFF v. NEW JERSEY DEPARTMENT OF LABOR, BOARD OF REVIEW
Appellate Division, A-4540-03T5, approved for publication August 2, 2005. (14 pages). Facts-on-Call Order No. 92610

In upholding the denial of a request for access to documents that related to a certificate of debt that was issued by the Department of Labor, the Government Records Council took too narrow a view of its jurisdiction and authority and took too broad a view of an exemption under N.J.S.A. 43:21-11(g).

NOT APPROVED FOR PUBLICATION
PREMISES LIABILITY
PUCARO v. DERICKS
Appellate Division, A-1141-04T3, August 2, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18318

Summary judgment for the defendant landowners in a premises liability action affirmed; in July 2002, the plaintiff was injured when she fell on a “crumbly” and “broken” sidewalk that abutted the defendants’ residential properties; according to one of the defendants, when he had his driveway repaved in 1998, the concrete trucks drove over the sidewalk and caused a “hairline fracture,” but the work did not involve repairs to the sidewalk; according to the other defendant, the work done to his neighbor’s property did not cause any damage to the sidewalk in front of his property; the fact that concrete trucks used the driveway and the abutting sidewalk once or twice for the convenience of one of the defendants was not a sufficient basis on which to conclude that he thereafter was liable for the deterioration of the sidewalk.

DRUNK DRIVING
STATE v. CONERTY
Appellate Division, A-1342-04T3, August 2, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18317

Conviction for refusal to submit to a Breathalyzer test remanded to the Municipal Court for further proceedings; the defendant moved to dismiss the refusal charge because the requirement under N.J.S.A. 39:4-50.4a that the State prove the elements of the offense by a preponderance of the evidence is unconstitutional; the Municipal Court denied the motion, and the defendant entered a conditional plea of guilty to the refusal charge; in the recent decision in State v. Cummings, the New Jersey Supreme Court held that the appropriate burden of proof is beyond a reasonable doubt; in light of Cummings, the matter was remanded to the Municipal Court, where the defendant could either withdraw his guilty plea and proceed to trial or accept his earlier conviction and sentence; the defendant was properly sentenced as a second-time offender.

NEGLIGENCE
FOX v. TAUBMAN CO.
Appellate Division, A-2983-03T5, August 1, 2005, not approved for publication. (21 pages). Facts-on-Call Order No. 18316

Summary judgment for the defendant owners and operators of a shopping mall in a wrongful death and survivorship action reversed and remanded; the 23-year-old decedent apparently fell to his death from the fifth tier of the parking deck at the Short Hills Mall; there was “significant evidence” to support the defendants’ theory that the decedent purposely jumped; however, the trial court erred by granting summary judgment because there also was evidence to support the theory advanced by the plaintiff father of the decedent, which was that the decedent’s death was proximately caused by the increased risk that resulted from the negligent construction and maintenance of a guard wall that was only 30 inches tall.

PUBLIC CONTRACTS
FREESPAN STRUCTURES, INC. v. WALLACE BROS., INC.
Appellate Division, A-463-04T5, August 1, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18315

Judgment of $30,710.37 for the defendant general contractor after a jury trial in an action arising from a public construction project and denial of the plaintiff building company’s motions for a judgment n.o.v. and for prejudgment interest affirmed; the contractor was awarded the project after it submitted a bid that relied on the building company’s quote for the construction of two buildings and the design and construction of cylindrical footings with bell-shaped bottoms; the County later deemed the design of the footings inadequate, and the contractor withheld $31,839 in increased costs from the building company; the defendant County Board of Chosen Freeholders paid $30,710.37 into court as an interpleader deposit, and the contractor and the building company disputed which of them was entitled to that deposit; the building company’s motion for judgment n.o.v. was properly denied because the proofs were sufficient to establish the contractor’s claim to the deposit and to defeat the building company’s breach of contract claim; the trial court did not abuse its discretion by not awarding prejudgment interest.

VERBAL THRESHOLD
CAMACHO v. CAMACHO
Law Division, Hudson County, HUD-L-488-04, July 22, 2005, released July 28, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18314

In a matter of first impression, the plaintiff’s motion for reconsideration of an April 29, 2005 summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold denied; summary judgment was granted because the plaintiff failed to dem-onstrate that her injuries had a serious impact on her life, and she did not appeal that decision; after the time to appeal had passed, the plaintiff sought reconsideration under Rule 4:50-1(f) because the serious impact requirement was eliminated by the New Jersey Supreme Court in DiProspero v. Penn on June 14, 2005; in Beltran v. DeLima, the Appellate Division held that DiProspero had “pipeline retroactivity,” but it did not consider whether its decision should be given complete retroactive effect, even if final judgments were entered and the avenues of direct appeal were exhausted; on that issue, based on the policy considerations expressed in Beltran and the “well-founded decisions” that establish that a Rule 4:50 motion may not substitute for a timely appeal, the Law Division held that DiProspero should not apply retroactively to this case.


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.