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Wednesday, May 17, 2017

DIVISION OF CHILD PROTECTION AND PERMANENCY VS. J.L.G. A-1746-13T2


DIVISION OF CHILD PROTECTION AND PERMANENCY VS. J.L.G.
          A-1746-13T2(NEWLY PUBLISHED OPINION FOR MAY 17, 2017)
In this Title 9 matter, Y.A., the mother of a seven-year old child, viciously beat the child with her hand, fist, and a metal spatula, inflicting significant physical injuries that were evident and painful to the child several days later and required medical intervention. Defendant J.L.G. admitted he was present when Y.A. beat the child with her hand. He did not intercede to stop the beating; rather, he walked away into the next room to keep the child he had with Y.A. from seeing the beating continue and told Y.A. to stop hitting the child because she could get in trouble. Defendant did not report the abuse.
The trial court found that Y.A. abused or neglected the child within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b) by unreasonably inflicting excessive corporal punishment. Y.A. did not appeal. The trial court also found that defendant abused or neglected the child within the meaning of N.J.S.A. 9:6- 8.21(c)(4)(b) by failing to provide the child with proper supervision by unreasonably allowing the infliction of excessive corporal punishment by the child's mother. We affirmed. 

B.C. VS. NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY A-4805-15T4


B.C. VS. NEW JERSEY DIVISION OF CHILD PROTECTION AND
          PERMANENCY
A-4805-15T4
In the context of a grandparent visitation appeal, the court discusses the interplay between the FN abuse and neglect docket and the FD non-dissolution docket. The court reverses the dismissal of the FD grandparent visitation complaint and directs that it be heard in conjunction with the ongoing FN neglect matter by the same judge. The court also directs reconsideration of the judge's FN order banning contact between the grandfather and the children in light of the preference expressed by the mother, who has legal custody of three of the four children. 

BRIAN HEJDA VS. BELL CONTAINER CORPORATION A-3502-14T1

BRIAN HEJDA VS. BELL CONTAINER CORPORATION
          A-3502-14T1
In Puglia v. Elk Pipeline, Inc., 226 N.J. 258 (2016), our Supreme Court applied principles the United States Supreme Court clarified in Hawaiian Airlines v. Norris, 512 U.S. 246 114 S.
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Ct. 2239, 129 L. Ed. 2d 203 (1994), to conclude that an employee's state whistleblower claim was not pre-empted by § 301 of the Labor Management and Relations Act (LMRA), 29 U.S.C.A. 185(a). This appeal presents the question whether an employee- union member's disability discrimination claim under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and retaliatory discharge claim under the Workers' Compensation Law (WCL), N.J.S.A. 34:15-1 to -128.5, are pre-empted by § 301. We conclude the claims as asserted are not pre-empted because they do not require interpretation of any provision of the collective bargaining agreement between the union and employer. 

IN RE N.J.A.C. 12:17-2.1 A-4636-14T3


IN RE N.J.A.C. 12:17-2.1
          A-4636-14T3
This appeal involves a challenge to the validity of a regulation, N.J.A.C. 12:17-2.1, adopted in 2015 by the Department of Labor and Workforce Development. In that regulation, the Department defines, for the first time in codified form, the concept of "simple misconduct" by an employee that can limit his or her eligibility for unemployment benefits under the Unemployment Compensation Act ("the Act"), N.J.S.A. 43:21-1 to -56. The Department's adoption of the regulation attempted to respond to concerns this court expressed in Silver v. Board of Review, 430 N.J. Super. 44 (App. Div. 2013), regarding the need for a codified rule that distinguishes "simple misconduct" from the more stringent intermediate concept of "severe misconduct" as defined by the Legislature in a 2010 amendment to N.J.S.A. 43:21-5(b), or the most extreme category of "gross misconduct" defined in the statute.
The court invalidates the portion of the challenged regulation defining simple misconduct. It does so because the definition illogically and confusingly mixes in concepts of "negligence" with intent-based concepts such as "willful disregard," "evil design," "wrongful intent," and similar states of mind. The regulation is also flawed because it defines "simple misconduct" in certain respects as encompassing employee conduct that is at least as extreme or venal or perhaps more so than "severe misconduct."
Consequently, the Department's final agency action adopting a definition of simple misconduct within N.J.A.C. 12:17-2.1 is reversed as arbitrary and capricious, without prejudice to the Department pursuing the adoption of a substitute regulation that cures these defects and conforms with the overall statutory scheme. 

DCPP VS. R.L.M. AND J.J. IN THE MATTER OF THE GUARDIANSHIP OF R.A.J. A-2849-15T2/


DCPP VS. R.L.M. AND J.J. IN THE MATTER OF THE GUARDIANSHIP OF R.A.J.
          A-2849-15T2/A-3277-15T2
In this termination of parental rights (TPR) case, the father contends he was entitled to a new trial because he was denied his constitutional right of self-representation, which he argued is a corollary to the right to counsel under N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 306 (2007). While the constitutional right to procedural due process gives rise to the right to counsel in TPR cases, there is no corollary right of self-representation, unlike in criminal cases under the Sixth Amendment. Furthermore, any non-constitutional right to proceed pro se under Rule 1:21-1(a) or arguably implied by N.J.S.A. 30:4C-15.4(a) may be relaxed if the court concludes that the parent's pro se efforts would significantly undermine the interests of the child, the State and the court in an accurate result without undue delay. Also, any denial of such non- constitutional right is not a structural error requiring a new trial. Finally, the father did not assert his alleged right of self-representation unequivocally or timely. 

SHAKEEM MALIK HOLMES VS. JERSEY CITY POLICE DEPARTMENT A-1634-15T3


SHAKEEM MALIK HOLMES VS. JERSEY CITY POLICE DEPARTMENT
          A-1634-15T3
Where police officers insulted and threatened an arrestee, the conduct was sufficiently severe that a reasonable transgender person in plaintiff's position would find the environment within the police station to be hostile, threatening and demeaning. Therefore, the trial court erred in granting summary judgment, dismissing plaintiff's Law Against Discrimination complaint alleging "hostile-environment" discrimination in a place of public accommodation. 

ALEXANDRA RODRIGUEZ VS. WAL-MART STORES, INC., ET AL. A-4137-14T3

ALEXANDRA RODRIGUEZ VS. WAL-MART STORES, INC., ET AL.
          A-4137-14T3
Plaintiff in this personal injury case appeals on several grounds from a no-cause jury verdict. Among other things, plaintiff argues that she was unduly prejudiced by the admission, over her objection, of extensive testimony from a defense medical expert opining that she had magnified her symptoms and her alleged injuries from the accident. The testifying doctor, a neurologist, was not a psychiatrist, psychologist, or other mental health specialist. Plaintiff
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contends that the admission of this expert testimony unfairly impugned her overall credibility and thereby deprived her of a fair trial on both liability and damages.
The appellate panel concludes that the expert's opinions on symptom magnification were improperly admitted, and that plaintiff was sufficiently prejudiced by that ruling to be entitled to a new jury trial on all issues. In doing so, the panel adopts the reasoning of other jurisdictions that have disallowed such expert opinions about symptom magnification, malingering, or other equivalent concepts in civil jury cases, including the Eighth Circuit's seminal opinion in Nichols v. American National Insurance Company, 154 F.3d 875 (8th Cir. 1998).
A qualified expert is not precluded, however, from providing factual testimony recounting observations the expert made about plaintiff's physical movements or responses to testing during an examination, subject to exclusionary arguments under N.J.R.E. 403 that may be asserted on a case-specific basis. Nor is a qualified expert categorically precluded from testifying that a plaintiff's subjective complaints appear to be inconsistent with objective medical test results or findings. In addition, the court does not foreclose the admission of opinion testimony concerning symptom magnification or similar concepts from a qualified expert in a non-jury case, also subject to Rule 403.