To schedule a confidential consultation, email us at VercammenAppointments@NJlaws.com, call or

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Kenneth Vercammen was included in the 2015 “Super Lawyers” list published by Thomson Reuters.

Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on litigation topics. He was awarded the NJ State State Bar Municipal Court Practitioner of the Year. He lectures for the Bar and handles litigation matters. He is Past Chair of the ABA Tort & Insurance Committee,GP on Personal Injury and was a speaker at the ABA Annual Meeting attended by 10,000 attorneys and professionals. To schedule a confidential consultation, email us at VercammenAppointments@NJlaws.com, call or

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Kenneth Vercammen & Associates, P.C.

2053 Woodbridge Avenue - Edison, NJ 08817

(732) 572-0500

Thursday, June 18, 2015

ABIGAIL GINSBERG, ET AL. VS. QUEST DIAGNOSTICS, INC., ET AL. A-1387-14T3

ABIGAIL GINSBERG, ET AL. VS. QUEST DIAGNOSTICS, INC., ET AL. 
A-1387-14T3/A-1388-14T3/A-1389-14T3/A-1390-14T3 
(CONSOLIDATED) 
Plaintiffs, residents of New Jersey who previously lived in New York, have asserted claims of wrongful birth, wrongful life, medical malpractice and negligence in connection with their now-deceased daughter's birth in 2008 in New York and her subsequent diagnosis of Tay-Sachs disease, a genetically-inherited and fatal condition. Plaintiffs claim defendants each erred in the health care, genetic testing services, or genetic counseling  provided before the couple conceived their daughter upon a mistaken belief that the father was not a Tay-Sachs carrier. The trial court ruled that New Jersey law, which differs from New York law in several material respects, applies to all of the parties and claims in this case. 
As a matter of first impression, the panel held that a court may adopt a defendant-by-defendant approach to choice of law in a tort case such as this one involving conduct and parties that straddle multiple states. 

Applying principles of the Restatement (Second) of Conflicts of Laws (1971), the panel reversed the trial court in part. The panel held that New York law applies to the claims against the defendant laboratory and third-party defendant New York hospital that tested the father's blood sample in New York, but New Jersey law applies to the claims against the New Jersey health care defendants who provided the couple with services in New Jersey. 

ROSENTHAL & ROSENTHAL, INC. VS. VANESSA BENUN, ET AL. A-2890-13T3

 ROSENTHAL & ROSENTHAL, INC. VS. VANESSA BENUN, ET AL. 
A-2890-13T3 

In this foreclosure action, applying the common law rules of priority for future advance mortgages, Riker Danzig's later-recorded mortgage has priority over the earlier-recorded mortgages of Rosenthal & Rosenthal because Rosenthal & Rosenthal made optional, not obligatory, advances to the debtor with actual knowledge of Riker Danzig's mortgage. 

P.M. VS. N.P. A-1947-12T2

P.M. VS. N.P. 
A-1947-12T2 
In this appeal, plaintiff-wife argues the Family Part Judge, who decided a number of post-judgment motions, erred in denying her application to recuse himself. Plaintiff claims the judge's impartiality was tainted when his law clerk engaged in employment discussions with and ultimately accepted an offer of employment from the attorney who represents defendant-husband. Plaintiff claims defense counsel discussed employment opportunities with the judge's law clerk during the time in which the judge was managing this contentious post-divorce motion practice. Plaintiff also alleges the law clerk is related to the trial judge in some undisclosed degree of consanguinity, which the judge refused to clarify despite plaintiff's counsel's repeated requests. 

We remand for the judge to address the Court’s concerns in Comparato v. Schait, 180 N.J. 90 (2004). The judge must then determine the extent to which his familial relationship with his law clerk created an appearance of impropriety under In re Reddin, 221 N.J. 221 (2015), DeNike v. Cupo, 196 N.J. 502 (2008), and Rule 1:12-2. 

NORTH JERSEY MEDIA GROUP, INC. VS. TOWNSHIP OF LYNDHURST, ET AL. A-2523-14T1

NORTH JERSEY MEDIA GROUP, INC. VS. TOWNSHIP OF LYNDHURST, ET AL. 
A-2523-14T1 
In this interlocutory appeal, we reversed an order compelling the New Jersey State Police and several other law enforcement agencies (LEAs) to release various documents pertaining to an ongoing criminal investigation related to a fatal police shooting of criminal suspect. The trial court held release was mandated by OPRA and the common law right of access. 

We concluded the trial court interpreted too narrowly the definition of "criminal investigatory records," which are excluded from the definition of "government record" generally subject to disclosure under OPRA. N.J.S.A. 47:1A-1.1. Also, the trial court's balancing of the requesters' interest in disclosure, and the LEAs' interest in confidentiality, was flawed, because the court refused to consider an in camera submission supporting defendants' claim that release would undermine the ongoing investigation into the shooting. On the other hand, we affirmed in part the holding that defendants failed to comply with their obligation under N.J.S.A. 47:1A-3(b) to release specified information about the investigation 

MELODY FAITH MAZUR, ETC. VS. CRANE'S MILL NURSING HOME, ET AL. A-2072-14T2/A-2495-14T2

MELODY FAITH MAZUR, ETC. VS. CRANE'S MILL NURSING HOME, ET AL. 
A-2072-14T2/A-2495-14T2 
In this medical malpractice action, we reverse the trial court's order dismissing the complaint due to a deficient affidavit of merit. The trial court based its decision on the misstatement in an answer that a defendant was board certified when he treated the patient; a misstatement repeated by defense counsel in the certification and throughout the brief filed in support of the motion to dismiss. 
We conclude that the appropriate remedy on remand is to require defendant to amend the answer to correct the misstatement and to permit plaintiff to file an affidavit of merit within sixty days, extendable by sixty days for good cause. We also review the procedural requirements concerning affidavits of merit as well as those of Rule 1:6, particularly the requirement of Rule 1:6-6 that affidavits intended to establish facts not appearing of record be based on personal knowledge. 

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY VS. J.C. AND C.M. IN THE MATTER OF T.M. A-2436-13T3

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY VS. J.C. AND C.M. IN THE MATTER OF T.M. 
A-2436-13T3 
The Family Part judge entered a finding that a mother neglected her three-year old son after she drank alcohol and 
remained in her bedroom the following morning with the bedroom door closed, while the child was in the next room unsupervised, wearing a dirty diaper, with the apartment door ajar. 

Because there was no harm to the child and the mother's conduct did not rise to the level of gross negligence or reckless disregard for the child's safety, we reversed. 

NEW JERSEY STATE (DIVISION OF STATE POLICE) VS. NEW JERSEY STATE TROOPER CAPTAINS ASSOCIATION A-6095-11T3

NEW JERSEY STATE (DIVISION OF STATE POLICE) VS. NEW JERSEY STATE TROOPER CAPTAINS ASSOCIATION 
A-6095-11T3 
The State of New Jersey, Division of State Police (Division), challenges on appeal a final agency action of the New Jersey Public Employment Relations Commission (PERC) which held that, with some exceptions, captains are not "managerial executives" as that term is defined in the 2010 amendment to N.J.S.A. 34:13A-3(f), and thus may engage in collective bargaining. The Division argues that PERC employed a flawed "two-pronged" analysis in reaching its conclusion and that if it had restricted its analysis to deciding whether captains occupy a position akin to an "assistant commissioner" in other executive branch departments, its result would have been different. 

We disagree with the Division's characterization of the PERC holding and we affirm.