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Sunday, July 30, 2017

IN RE: ACCUTANE LITIGATION A-4698-14T1/

 IN RE: ACCUTANE LITIGATION 
A-4698-14T1/A-0910-16T1(CONSOLIDATED) 

In these multicounty litigation (MCL) products liability cases, the Appellate Division holds that the trial court erred in barring plaintiffs' experts from testifying as to certain epidemiological issues, and that Accutane can cause Crohn's disease. Accordingly, the orders dismissing the lawsuits are reversed and the cases are remanded to the trial court for further proceedings. The opinion reviews the legal principles applicable in a Kemp hearing, and provides some guidance for handling MCL cases in which the scientific evidence concerning the product develops over the protracted course of the litigation. 

NORMA S. EHRLICH VS. JEFFREY J. SOROKIN, M.D. A-2781-15T3


 NORMA S. EHRLICH VS. JEFFREY J. SOROKIN, M.D. 
A-2781-15T3 
After suffering complications from a colonoscopy and polypectomy procedure, plaintiff filed a medical malpractice complaint against defendant, alleging negligent treatment. Prior to testimony at trial, plaintiff moved in limine to exclude evidence of her informed consent, arguing such evidence was irrelevant because she did not raise a claim for lack of informed consent. The judge denied plaintiff's motion, and the parties discussed the evidence at trial. 

In a case of first impression in New Jersey, we follow the principle, adopted by various out-of-state courts, that informed consent evidence is irrelevant and prejudicial when the issue is negligent treatment. Because the error here was not harmless, we reverse the no-cause jury verdict and remand the matter for a new trial. 

MAIN STREET AT WOOLWICH, LLC, ET AL. VS. AMMONS SUPERMARKET, INC., ET AL. A-0713-15T3


 MAIN STREET AT WOOLWICH, LLC, ET AL. VS. AMMONS 
SUPERMARKET, INC., ET AL. 
A-0713-15T3 
After plaintiffs successfully defended against litigation brought by defendants challenging approvals for plaintiffs' shopping complex, plaintiffs filed a complaint against defendants, their attorney, and his firm alleging the litigation was a sham intended only to gain advantage over a competing business. 

In a case of first impression, the court adopts the holding in Hanover 3201 Realty, LLC v. Village Supermarkets, Inc., 806 F.3d 162, 180 (3d Cir. 2015), cert. denied, ___ U.S. ___, 136 S. Ct. 2451, 195 L. Ed. 2d 264 (2016), and concludes that, when determining whether a litigant is entitled to immunity under the Noerr-Pennington doctrine, the motion judge was required to consider the allegations in plaintiffs' complaint that the litigation was part of a pattern of sham litigation brought by defendants for the purpose of injuring market rivals rather than to redress actual grievances. 

Twanda Jones v. Morey’s Pier, Inc. (A-75-15

Twanda Jones v. Morey’s Pier, Inc. (A-75-15; 077502) 

When a defendant does not serve a timely notice of claim on a public entity, and is not granted leave to file a late notice of claim, the statute bars that defendant’s cross-claim or third-party claim for contribution and common-law indemnification against the public entity. Accordingly, the Morey defendants’ third-party contribution and common-law indemnification claims against the Association are barred. On remand, the trial court should afford the Morey defendants an opportunity to present evidence that the Association was negligent and that its negligence was a proximate cause of Abiah Jones’s death. If the Morey defendants present prima facie evidence, the trial court should instruct the jury to determine whether any fault should be allocated to the Association. If the jury finds that the Association was negligent and that its negligence was a proximate cause of her death, the trial court should mold any judgment entered in plaintiffs’ favor to reduce the damages awarded to plaintiffs by the percentage of fault that the jury allocates to the Association. 

Twanda Jones v. Morey’s Pier, Inc. (A-75-15

Twanda Jones v. Morey’s Pier, Inc. (A-75-15; 077502) 

When a defendant does not serve a timely notice of claim on a public entity, and is not granted leave to file a late notice of claim, the statute bars that defendant’s cross-claim or third-party claim for contribution and common-law indemnification against the public entity. Accordingly, the Morey defendants’ third-party contribution and common-law indemnification claims against the Association are barred. On remand, the trial court should afford the Morey defendants an opportunity to present evidence that the Association was negligent and that its negligence was a proximate cause of Abiah Jones’s death. If the Morey defendants present prima facie evidence, the trial court should instruct the jury to determine whether any fault should be allocated to the Association. If the jury finds that the Association was negligent and that its negligence was a proximate cause of her death, the trial court should mold any judgment entered in plaintiffs’ favor to reduce the damages awarded to plaintiffs by the percentage of fault that the jury allocates to the Association. 

Edan Ben Elazar v. Macrietta Cleaners, Inc. (A-11-16;


 Edan Ben Elazar v. Macrietta Cleaners, Inc. 
(A-11-16; 078079) 

When a plaintiff is injured by a third party and has no reason to believe that another party, specifically a public entity, is responsible, the discovery rule applies to toll the accrual date that triggers the notice-of-claim requirement. Here, it was error for summary judgment to have been granted to the public-entity defendant based on the record presented, because plaintiffs put forward a reasonable basis to support a determination that the claim against the public entity was diligently pursued and notice of claim was timely filed. 

Edan Ben Elazar v. Macrietta Cleaners, Inc. (A-11-16;


 Edan Ben Elazar v. Macrietta Cleaners, Inc. 
(A-11-16; 078079) 

When a plaintiff is injured by a third party and has no reason to believe that another party, specifically a public entity, is responsible, the discovery rule applies to toll the accrual date that triggers the notice-of-claim requirement. Here, it was error for summary judgment to have been granted to the public-entity defendant based on the record presented, because plaintiffs put forward a reasonable basis to support a determination that the claim against the public entity was diligently pursued and notice of claim was timely filed. 

Capital Health Systems, Inc. v. Horizon Healthcare Services, Inc. (A-29/30-16

Capital Health Systems, Inc. v. Horizon Healthcare 
Services, Inc. (A-29/30-16; 077998); Saint Peter’s 
University Hospital, Inc. v. Horizon Healthcare 
Services, Inc. (A-59-16; 079097) 

Having closely examined the record, the Court rejects the Appellate Division’s determination that the chancery judges encharged with these matters abused their discretion. 

Sunday, July 23, 2017

IN THE MATTER OF WILLIAM R. HENDRICKSON, JR., DEPARTMENT OF COMMUNITY AFFAIRS A-3675-15T1


IN THE MATTER OF WILLIAM R. HENDRICKSON, JR., DEPARTMENT OF COMMUNITY AFFAIRS
A-3675-15T1
If an agency fails to timely act on an administrative law judge's initial decision, by statute it is "deemed adopted," and becomes final. See N.J.S.A. 52:14B-10(c). The court holds that when the lack of a quorum attributable to vacancies caused the agency inaction, the deferential agency standard of review will not be employed. Instead, the court will review the decision using the standard for decisions rendered in bench trials. 

STATE OF NEW JERSEY, EX REL. LEONARD M. CAMPAGNA VS. POST INTEGRATIONS, INC., EBOCOM, INC., AND MARY GERDTS A-1463-15T1


STATE OF NEW JERSEY, EX REL. LEONARD M. CAMPAGNA VS.
          POST INTEGRATIONS, INC., EBOCOM, INC., AND MARY GERDTS
          A-1463-15T1
In this qui tam action, the court was asked to determine whether a claim against a corporation arising from its alleged failure to pay certain statutory obligations owed to the State relates to taxes that are expressly excluded from the purview of the New Jersey False Claims Act (NJFCA), N.J.S.A. 2A:32C-1 to - 18. The statutory obligations included the alternative minimum tax required by the Corporation Business Tax Act, N.J.S.A. 54:10A-1 to -40, and assessments and fees imposed upon foreign corporations by the New Jersey Business Corporation Act, N.J.S.A. 14A:13-1 to -23. The court held that such obligations are taxes as contemplated by the NJFCA and, therefore, the Law Division properly dismissed plaintiff's complaint, which alleged that defendants violated the NJFCA by making false statements in order to avoid paying New Jersey "assessments, fees, license costs and other charges." 

JOHN SMITH VS. ARVIND R. DATLA, M.D., ET AL. A-1339-16T3

JOHN SMITH VS. ARVIND R. DATLA, M.D., ET AL.
          A-1339-16T3
This interlocutory appeal presents novel statute of limitations issues. Plaintiff sued defendants for monetary damages and attorney's fees for (1) invasion of privacy for harmful public disclosure of private facts, (2) violation of the AIDS Assistance Act, N.J.S.A. 26:5C-1 to -14, and (3) medical malpractice arising out the defendant-doctor's alleged disclosure that plaintiff was HIV-positive in the presence of a third party without plaintiff's consent. Defendants moved to dismiss plaintiff's complaint because it was filed more than one year after the disclosure event.
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The trial court denied defendants' motion, holding that a two-year statute of limitations applied to all three causes of action. The appellate panel affirmed, agreeing that each of plaintiff's causes of action were subject to the two-year statute of limitations imposed by N.J.S.A. 2A:14-2, not the one- year statute of limitations for defamation imposed by N.J.S.A. 2A:14-3. 

FRANCINE REIBMAN, ETC. VS. JAY H. MYERS, ETC., ET AL. A-0332-15T2


FRANCINE REIBMAN, ETC. VS. JAY H. MYERS, ETC., ET AL.
          A-0332-15T2
In this appeal, the Appellate Division was asked to consider whether plaintiff's property rights in the marital home under the New Jersey Joint Possession Statute N.J.S.A. 3B:28-3 were released, extinguished, or merged by virtue of a subsequent deed granting title by the entirety with defendant husband. This court holds, when plaintiff obtained a fee interest she lost protection under N.J.S.A. 3B:28-3 because her possessory interest merged into the greater fee estate.
As such, plaintiff's interest was subject to liens and an equitable mortgage, particularly, as here, where plaintiff was aware of and enjoyed the benefit of those loans and the parties intended the property to secure repayment. 

OCWEN LOAN SERVICES, LLC VS. MARLA WUEBBENS QUINN A-2668-14T3

OCWEN LOAN SERVICES, LLC VS. MARLA WUEBBENS QUINN
          A-2668-14T3(NEWLY PUBLISHED OPINION FOR JULY 10, 2017)
In 2004, defendants David and Louisa Wuebbens conveyed their home to their daughter, Marla Wuebbens Quinn, while retaining life estates in the property. In 2005, Quinn and defendants executed a $260,000 mortgage on the property in favor of plaintiff's assignor, IndyMac Bank, F.S.B. (the 2005 mortgage). In 2007, Quinn refinanced the mortgage loan for $380,000 with IndyMac (the 2007 mortgage) and used the proceeds, in part, to satisfy the 2005 mortgage. IndyMac's title commitment failed to disclose defendants' recorded life estate interests in the property. As a result, defendants did not execute the 2007 mortgage.
In 2009, IndyMac filed an action to foreclose the 2007 mortgage after Quinn defaulted. The issue presented is whether plaintiff's 2007 mortgage lien takes priority over defendants' earlier recorded life estate interests in the property. Applying principles of replacement and modification recognized in the Restatement (Third) of Property Mortgages (1997), the
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court extends its holding in Sovereign Bank v. Gillis, 432 N.J. Super. 36 (App. Div. 2013), so as to grant plaintiff's mortgage limited priority over defendants' life estates. Consequently, the court "capped" plaintiff's mortgage priority at $260,000, and preserved the priority of defendants' life estates over the portion of the 2007 mortgage loan that exceeded that amount. 

FISHER, KRYSTAL AND DAVID VS. CITY OF MILLVILLE A-3351-15T3

FISHER, KRYSTAL AND DAVID VS. CITY OF MILLVILLE
          A-3351-15T3
The court reviewed the statutory requirements for a personal residence real estate tax exemption, granted to certain disabled veterans, honorably discharged, who served in "active service in time of war." Construing the Legislative intent the court concluded the military conflict applicable to plaintiff's period of service, Operation "Enduring Freedom," occurring on or after September 11, 2001, requires the disabling injury occur during service "in a theater of operation and in direct support of that operation." This geographic component was not satisfied by plaintiff who was injured during stateside basic training and never sent with her unit to Afghanistan. Accordingly, plaintiff's disabling injuries were not suffered in a theater of operation or in direct support of a theater of operation, and
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thus, were not the result of "active service in time of war," as defined in N.J.S.A. 54:4-8.10(a). 

DUTCH RUN-MAYS DRAFT, LLC VS. WOLF BLOCK, LLP A-0922-15T4


DUTCH RUN-MAYS DRAFT, LLC VS. WOLF BLOCK, LLP
          A-0922-15T4
Reviewing a general jurisdiction challenge, the Appellate Division rejected plaintiff's argument asserting a foreign corporation's registration and acceptance of service of process in New Jersey constituted consent to submit to the general jurisdiction of the courts. Rather, the court adopted the circumscribed view stated in Daimler AG v. Bauman, 571 U.S. __, 134 S. Ct. 746 187 L. Ed. 2d 624 (2014), which requires a court focus on an entity's affiliation with the state, such as the place of incorporation or a continuous, systematic course of business, making the entity "at home" in the forum. Id. at __, 134 S. Ct. at 761, 187 L. Ed. 2d at 641. In light of Daimler, the court rejects the holding in Allied-Signal, Inc. v. Purex Inds., Inc., 242 N.J. Super. 362, 366 (App. Div. 1990), basing general jurisdiction solely on the fiction of implied consent by a foreign corporation's compliance with New Jersey's business registration statute. 

ATLANTIC AMBULANCE CORPORATION VS. JOHN G. CULLUM, ET AL. A-1622-16T2


ATLANTIC AMBULANCE CORPORATION VS. JOHN G. CULLUM, ET AL.
A-1622-16T2
The court addressed an appeal from an order denying class certification on behalf of consumers who alleged that they were overcharged for ambulance services. The court held that consumers were not required to pay the bill for allegedly overpriced services to establish an ascertainable loss under the Consumer Fraud Act (CFA). However, the court held that under the "learned professional" exception, ambulance service providers were not subject to CFA claims, because ambulance services are comprehensively regulated by a State agency. The court also held that plaintiffs could not maintain a breach of contract claim challenging the reasonableness of the rates charged, because the ambulance service's rate-setting was a policy issue to be addressed by the Legislature and agencies within the Executive branch of government. However, plaintiffs could pursue a claim for a refund of a $14 mileage fee for patients who admittedly were not transported to a hospital, because that did not implicate any rate-setting policy issues. 

I/M/O STATE OF NJ AND FOP POLICE LODGE 91 A-0413-15T4


I/M/O STATE OF NJ AND FOP POLICE LODGE 91 A-0413-15T4
The interest arbitration and salary cap provisions of the Police and Fire Public Interest Arbitration Reform Act, N.J.S.A. 34:13A-14 to -16.9, are not limited to situations where an existing collective negotiations agreement (CNA) is expiring. The Act also permits interest arbitration of a newly certified unit's first CNA, but subjects that interest arbitration to the two percent salary cap set forth in N.J.S.A. 34:13A-16.7. 

STATE OF NEW JERSEY, DEP VS. NORTH BEACH 1003, LLC, ET AL. A-3393-15T4


STATE OF NEW JERSEY, DEP VS. NORTH BEACH 1003, LLC, ET AL.
A-3393-15T4/A-3396-15T4/A-3397-15T4/A-3398-15T4/A- 3399-15T4/A-3727-15T4/A-3770-15T4/A-3771-15T4/A-3781- 15T4/A-3782-15T4/A-3783-15T4/A-3786-15T4/A-3787- 15T4/A-3789-15T4/A-3790-15T4/A-3791-15T4/A-3792- 15T4/A-3958-15T4/A-3960-15T4/A-3965-15T4/A-3966- 15T4/A-3967-15T4/A-3969-15T4/A-3970-15T4 (CONSOLIDATED)

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These consolidated appeals present the questions whether the New Jersey Department of Environmental Protection (DEP) has the authority to condemn private property to take perpetual easements for shore protection purposes and whether the easements can allow public access to, and use of, the areas covered by the easements. We hold that the DEP has such authority and the easements that allow for publicly funded beach protection projects can include public access and use. Thus, we affirm the trial court's final judgments finding that the DEP properly exercised its power of eminent domain and appointing commissioners to determine the value of the takings. 

MICHAEL ABBOUD VS. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA A-3434-14T1

MICHAEL ABBOUD VS. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA
A-3434-14T1
The court affirms the trial court's summary judgment dismissal of plaintiff's claim for coverage under a directors and officers (D&O) liability policy. The insurer properly denied coverage under the policy's "insured vs. insured" exclusion, which generally bars D&O coverage for claims by one insured director or officer against another. The court discerns no ambiguity in the exclusion, and finds no merit in plaintiff's arguments that (1) a showing of collusion between the insureds
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is required to invoke the exclusion, and (2) the exclusion should not be enforced because it would violate his reasonable expectations. 

Wednesday, July 19, 2017

ATLANTIC AMBULANCE CORPORATION VS. JOHN G. CULLUM, ET AL. A-1622-16T2


ATLANTIC AMBULANCE CORPORATION VS. JOHN G. CULLUM, ET AL.
A-1622-16T2
The court addressed an appeal from an order denying class certification on behalf of consumers who alleged that they were overcharged for ambulance services. The court held that consumers were not required to pay the bill for allegedly overpriced services to establish an ascertainable loss under the Consumer Fraud Act (CFA). However, the court held that under the "learned professional" exception, ambulance service providers were not subject to CFA claims, because ambulance services are comprehensively regulated by a State agency. The court also held that plaintiffs could not maintain a breach of contract claim challenging the reasonableness of the rates charged, because the ambulance service's rate-setting was a policy issue to be addressed by the Legislature and agencies within the Executive branch of government. However, plaintiffs could pursue a claim for a refund of a $14 mileage fee for patients who admittedly were not transported to a hospital, because that did not implicate any rate-setting policy issues. 

I/M/O STATE OF NJ AND FOP POLICE LODGE 91 A-0413-15T4


I/M/O STATE OF NJ AND FOP POLICE LODGE 91 A-0413-15T4
The interest arbitration and salary cap provisions of the Police and Fire Public Interest Arbitration Reform Act, N.J.S.A. 34:13A-14 to -16.9, are not limited to situations where an existing collective negotiations agreement (CNA) is expiring. The Act also permits interest arbitration of a newly certified unit's first CNA, but subjects that interest arbitration to the two percent salary cap set forth in N.J.S.A. 34:13A-16.7. 

STATE OF NEW JERSEY, DEP VS. NORTH BEACH 1003, LLC, ET AL. A-3393-15T4/A-3396


STATE OF NEW JERSEY, DEP VS. NORTH BEACH 1003, LLC, ET AL.
A-3393-15T4/A-3396-15T4/A-3397-15T4/A-3398-15T4/A- 3399-15T4/A-3727-15T4/A-3770-15T4/A-3771-15T4/A-3781- 15T4/A-3782-15T4/A-3783-15T4/A-3786-15T4/A-3787- 15T4/A-3789-15T4/A-3790-15T4/A-3791-15T4/A-3792- 15T4/A-3958-15T4/A-3960-15T4/A-3965-15T4/A-3966- 15T4/A-3967-15T4/A-3969-15T4/A-3970-15T4 (CONSOLIDATED)

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These consolidated appeals present the questions whether the New Jersey Department of Environmental Protection (DEP) has the authority to condemn private property to take perpetual easements for shore protection purposes and whether the easements can allow public access to, and use of, the areas covered by the easements. We hold that the DEP has such authority and the easements that allow for publicly funded beach protection projects can include public access and use. Thus, we affirm the trial court's final judgments finding that the DEP properly exercised its power of eminent domain and appointing commissioners to determine the value of the takings. 

Maryanne Grande v. Saint Clare’s Health System (A-67-15;


Maryanne Grande v. Saint Clares Health System
          (A-67-15; 076606)
          On the record before the trial court, issues of
          material fact exist.  The Court affirms and modifies
          the judgment of the Appellate Division and remands the
          matter to the trial court for further proceedings.

North Jersey Media Group, Inc. v. Township of Lyndhurst (A-35-15


North Jersey Media Group, Inc. v. Township of
          Lyndhurst (A-35-15; 076184)
          NJMG was entitled to disclosure of unredacted Use of
          Force Reports, under OPRA, and dash-cam recordings of
          the incident, under the common law.  Investigative
          reports, witness statements, and similarly detailed
          records were not subject to disclosure at the outset
          of the investigation, when they were requested.

John Paff v. Galloway Township (A-88-15


John Paff v. Galloway Township (A-88-15; 077692)
          The Appellate Division’s overly constrictive reading of
          OPRA cannot be squared with the OPRA’s objectives or
          statutory language.  OPRA recognizes that government
          records will constitute not only paper documents, but
          also information electronically stored.  The fields of
          information covering “sender,” “recipient,” “date,” and
          “subject” in the emails sent by the Galloway Township
          Chief of Police and Clerk over a two-week period are
          government records under OPRA.