NEW JERSEY LAWYER

DAILY BRIEFING      09/06/2005


News Briefs

THIRD CIRCUIT RULES ARBITRATION WINNER NEEDN’T SIGN RELEASE
The 3rd U.S. Circuit Court of Appeals has ruled a magistrate judge exceeded his authority by requiring an arbitration winner to sign her former employer’s release form as a condition of receiving her arbitration award. The ruling involved events in the aftermath of the merger of Pfizer and Warner-Lambert. In Pfizer Inc. v. Uprichard, a case from New Jersey, circuit Judge Dolores K. Sloviter noted Margaret Uprichard won $245,000 from arbitrators against Pfizer after she requested severance benefits under Warner-Lambert’s enhanced severance plan (ESP). Uprichard, who had once been Warner-Lambert’s director of clinical research, claimed that under the ESP her job duties had changed. Pfizer wanted her to sign a release statement saying she would forfeit the award if she disclosed it or made disparaging comments about the company. Sloviter said Pfizer failed to ask the arbitration panel to include the requirement that she sign. Sloviter also said the magistrate judge could not order Uprichard to sign it under a court rule used to correct clerical mistakes, not substantive one. (A full text of Pfizer, Facts-on-Call Order No. 92652, can be ordered from NJL Online or by calling 800-670-3370.) 9-2-05

FOUR YEARS AFTER 9/11, HOMELAND SECURITY PRACTICES THRIVING
Four years after the terrorist attacks in New York and Washington, homeland security is an emerging practice area nationwide and in New Jersey. While the Newark office of Kirkpatrick & Lockhart Nicholson Graham grabbed headlines recently by adding former Attorney General John J. Farmer Jr. and another former 9/11 Commission attorney to handle homeland security issues, Reed Smith’s homeland security practice in Newark has been adding lawyers and handling significant services for business clients for several months. There’s also strong potential for the homeland security practices of Blank Rome and Thielen Reid & Priest to work with their New Jersey offices. “No matter what practice group, there will eventually be a homeland security issue to deal with,” said James A. Kosch, managing partner of Reed Smith’s Newark office. For a full story, see the Sept. 5 New Jersey Lawyer. 9-2-05

ROBBER SUES POLICE FOR SHOOTING HIM FLEEING FROM CRIME SCENE
A convicted robber has sued Atlantic City and its police department because a police officer shot him as he was fleeing a robbery. In Owens v. The City of Atlantic City, Anthony Owens accuses the municipality and police of failing to properly train its officers and accuses Charles Miller, the officer who shot him July 19, 2003, of assault and battery and using excessive force. Owens, in prison for the robbery, suffered lung, spine and rib injuries, and doctors have been unable to dislodge a bullet from his neck. The federal suit, filed by Thomas F. Shebell III in Ocean, also accuses the city and police of improper investigation and denying due process. 9-2-05

LOUISIANA LEGAL COMMUNITY RAVAGED BY HURRICANE
The hurricane devastation in New Orleans has been particularly tough on the legal profession. The Louisiana State Bar Association reports 5,000 to 6,000 attorneys, about one-third the state’s lawyers, have lost their offices, libraries and computers, along with client files. The state Supreme Court, the 5th U.S. Circuit Court of Appeals and lower courts also were under water, damaging files and evidence that could impact the outcome of ongoing cases. The water also engulfed the local bar association’s offices. Meanwhile, the American Bar Association is offering help. ABA President Michael S. Greco announced he’s enlisting the organization’s Young Lawyers Division and attorneys from several ABA sections to assist victims with insurance claims, home repair contracts, wills and other documents, and related issues. 9-2-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, SEPTEMBER 2, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, SEPTEMBER 2, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON TUESDAY, SEPTEMBER 6, 2005.


APPROVED FOR PUBLICATION
DOMESTIC VIOLENCE
MITCHELL v. OKSIENIK
Appellate Division, A-1775-03T1, approved for publication September 2, 2005. (17 pages). Facts-on-Call Order No. 92653

When ample notice is provided that a party to a domestic violence proceeding is invoking the broader equitable powers of the court to seek a remedy that is not specifically provided by the Prevention of Domestic Violence Act of 1991 — such as a determination of rights to real property between unmarried cohabitants — the court has jurisdiction to adjudicate the dispute.

REAL PROPERTY
COHEN v. W.B. ASSOCIATES, INC.
Law Division, Monmouth County, MON-L-4291-01, approved for publication July 28, 2005. (9 pages). Facts-on-Call Order No. 92525

Where the seller of real property includes language in the contract of sale that deviates from the language of the New Residential Construction Off-Site Conditions Disclosure Act, and where the buyer calls into question the accuracy of the supplemental language and the seller’s motivation for including it, the seller will be barred from raising the Act as a defense to the buyer’s claim for damages for alleged misrepresentations about off-site conditions. [This opinion previously had been approved for publication on June 16, 2005 and was withdrawn from publication on June 30, 2005.]

NOT APPROVED FOR PUBLICATION
SANCTIONS
MAINARDI v. WAGNER AIRWAYS
Appellate Division, A-5687-02T2, September 2, 2005, not approved for publication. (2 pages). Facts-on-Call Order No. 18474

Order of remand to recalculate attorney’s fees and costs for services performed after December 19, 2002 vacated; the New Jersey Supreme Court summarily remanded this case for the Appellate Division’s reconsideration in light of the fact that the Federal Aviation Administration’s December 2002 dismissal of the plaintiff’s complaint did not address the merits and was without prejudice to filing a complaint; the plaintiff then filed an amended complaint with the FAA, but the amended complaint was dismissed on the merits on November 25, 2003; because the amended complaint was dismissed after the grant of summary judgment, the award of attorney’s fees would not be appropriate under the frivolous litigation statute, which cannot be applied retroactively; contrary to the defendant airport’s argument, the first dismissal was not akin to a failure to state a cause of action; thus, sanctions against the plaintiff for refusing to dismiss his claims against the airport as a party after receipt of a December 19, 2002 letter were not warranted under the frivolous litigation statute.

PARENT AND CHILD
KAHN v. KAHN
Appellate Division, A-5334-03T2, September 2, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18475

Post-divorce-judgment order following a remand affirmed; the record supported the Family Part’s finding that the parties had an oral agreement that their son would continue to attend camp after their divorce and that they would share the costs equally; the plaintiff ex-husband did not attack the “essential basis” for the Family Part’s order that he share equally in the costs for the son’s attendance at Hebrew school, and his arguments about standing and the Family Part’s authority to order him to make a payment in the absence of a demand from the Hebrew school were “entirely misplaced” and lacked merit; the Family Part’s award of attorney’s fees to the defendant ex-wife was an appropriate exercise of discretion, especially in light of its decision to award the ex-wife “a modest sum” in attorney’s fees.

VERBAL THRESHOLD
IMBESI v. BLACK
Appellate Division, A-5797-03T2, September 1, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 18470

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA affirmed; the plaintiff suffered “serious and permanent” injuries in a 1995 motor vehicle accident, was involved in an accident with the first defendant in December 2000, and was involved in an accident with the second defendant in November 2001; contrary to the plaintiff’s argument on appeal, her proofs did not constitute a sufficient analysis under Polk v. Daconceicao to create a jury question as to whether she suffered a permanent injury in her accidents with the defendants that was sufficiently distinct from her pre-existing injuries; the plaintiff presented no detailed analysis that compared her pre-existing injuries with her current symptoms based on objective medical evidence from before and after her accidents with the defendants; according to the case law, AICRA did not affect the Polk requirement.

MEDICAL MALPRACTICE
CROMWELL v. MONMOUTH MEDICAL CENTER
Appellate Division, A-5926-03T5, September 1, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18471

Judgment for the defendant doctors after the jury returned a no-cause verdict in a medical malpractice action and denial of the plaintiff patient’s motion for a new trial affirmed; the jury had to determine whether the defendant doctors deviated from the accepted standard of care or whether the patient’s severe spinal cord injury was due to graft migration, which is a recognized complication of the endoscopic thoracic disc surgery and fusion that she underwent; the jury found no deviation by the doctors; contrary to the patient’s arguments on appeal, (1) the defense expert had “sufficient qualifications” and could testify about the possibility — rather than a reasonable degree of medical probability — of graft migration and (2) this “clearly” was not a case of res ipsa loquitur; although the patient correctly argued that the jury instructions about the standard of care for a fourth-year resident were inconsistent, there was no prejudicial error based on a reading of the instructions as a whole.

PARENT AND CHILD
ANDERSON v. ANDERSON
Appellate Division, A-1172-04T5, September 1, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18473

Portion of a post-divorce-judgment order that required the plaintiff father to pay a proportionate share of his children’s student loans for their college educations reversed and remanded; the father opposed the defendant mother’s motion to have him pay a share of the loans; the motion was decided on the papers submitted, despite requests for oral argument by both parties; no reasons accompanied the order, but the trial court filed a statement pursuant to Rule 2:5-1(b) to explain its decision after the father appealed; the trial court erred by failing to hear oral argument, and that failure resulted in a record that was not sufficiently developed to support the trial court’s findings and conclusions.

PARENT AND CHILD
COONERTY v. McALLISTER
Appellate Division, A-4980-03T2, September 1, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18472

Portions of two post-divorce-judgment orders that denied the defendant ex-husband’s motion to reallocate his daughter’s college tuition costs and off-campus rental expenses for the third trimester of the 2003-2004 academic year and that required him to pay $800 in attorney’s fees to the plaintiff ex-wife reversed and remanded; the trial court’s resolution of the issue of college costs for the daughter for the 2003-2004 academic year had been reversed and remanded in a separate appeal decided on August 8, 2005, and the order on appeal in this case therefore must be reversed and remanded for reconsideration at the plenary hearing that the Appellate Division had previously ordered; the award of attorney’s fees was reversed pending the results of the plenary hearing.

CIVIL PROCEDURE
RICKER v. HUNTERDON MEDICAL CENTER
Law Division, Hunterdon County, HNT-L-399-03, August 19, 2005, released August 24, 2005, not approved for publication. By Reed, J. (4 pages). Facts-on-Call Order No. 18467

Motion by the plaintiff patient to amend his complaint in a medical malpractice action denied; one year after the limitations period expired and two months before trial, the patient sought to add the defendant hospital’s director of medical records as a defendant under Rule 4:9-1; based on information obtained during discovery, the patient alleged that the failure of the hospital’s records department to forward the records of his blood cultures and his emergency room progress contributed to a delay in his diagnosis and thus injured him; contrary to the patient’s argument, the information obtained during discovery did not require the addition of a new party to the action; the patient did not make effective use of fictitious name practice under Rule 4:26-4 to identify the director as a potential defendant; undue prejudice would result to the director if the amendment were permitted, but the patient was not prejudiced because the hospital remained vicariously liable for the director’s actions.


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