MELODY CURZI VS. RAYMOND L. RAUB, III, ET AL. DENNIS LOSCO, ET AL. VS. RAYMOND L. RAUB, III, ET AL. RAYMOND L. RAUB, III, ET AL. VS. MELODY CURZ

MELODY CURZI VS. RAYMOND L. RAUB, III, ET AL.

DENNIS LOSCO, ET AL. VS. RAYMOND L. RAUB, III, ET AL.

RAYMOND L. RAUB, III, ET AL. VS. MELODY CURZI, ET AL.

A-5380-06T1 07-30-10

Under the Right to Farm Act, N.J.S.A. 4:1C-1 to -10.4, the

county agriculture development board, not the Superior Court,

had jurisdiction over plaintiff's private nuisance claims

against a farmer for placing box trailers end-to-end along their

property lines because under all of the circumstances, it was

reasonably debatable that the conduct constituted an acceptable

agricultural practice.

DANIEL REICH, D.M.D. V. BOROUGH OF FORT LEE ZONING BOARD OF ADJUSTMENT, ET AL. A-1677-08T1

DANIEL REICH, D.M.D. V. BOROUGH OF FORT LEE ZONING

BOARD OF ADJUSTMENT, ET AL.

A-1677-08T1 07-29-10

In this action in lieu of prerogative writs, plaintiff

periodontist appeals from an order of the Law Division affirming

the Zoning Board's decision interpreting the simultaneous

occupation of the dental office by him and the existing

endodontist to be an expansion of the nonconforming use, and

denying plaintiff's variance application. The court found the

Board did not act arbitrarily, dismissed with prejudice

plaintiff's complaint, and entered judgment in favor of the

Board.

We reverse. The record does not support the Board's

finding that there was an expansion of the nonconforming use or,

even assuming otherwise, that plaintiff failed to meet the

positive and negative criteria for variance relief.

JAMES GANNON, ET AL. V. AMERICAN HOME PRODUCTS, INC. ET ALS. A-3936-07T2

JAMES GANNON, ET AL. V. AMERICAN HOME PRODUCTS, INC.

ET ALS.

A-3936-07T2 07-29-10

Defendants were granted summary judgment in this products

liability vaccine case involving Orimune, an oral polio vaccine

administered to plaintiff in the 1970's. See Rivard v. Am. Home

Prods., Inc., 391 N.J. Super. 129 (App. Div. 2007) (in which we

detailed the history of the development of Orimune and affirmed

the denial of summary judgment on the causation issue).

Plaintiff had also filed suit against the United States in

federal district court, alleging negligence by the government in

the screening of Orimune and in insuring regulatory compliance.

That suit resulted in judgment in favor of the United States,

the judge determining that plaintiff had failed to prove Orimune

caused cancer in humans.

Defendants sought summary judgment on two fronts: they

alleged plaintiff had failed to adequately identify their

particular vaccine as the one he received; and, they

supplemented their initial motion with a copy of the district

court's opinion and argued that plaintiff was precluded from

proving causation in this case. The judge granted summary

judgment for both reasons.

We reversed. On the product identification issue, we

concluded the judge had misapplied the Brill standard, and that

plaintiff had raised a genuine factual dispute that precluded

summary judgment. On the collateral estoppel issue, we

discussed several exceptions to the rigid application of the

doctrine, and, under the circumstances of this case and given

the lack of any motion record on the issue, we concluded that it

was inappropriate to grant summary judgment on this ground.

WELLS REIT II - 80 PARK PLAZA, LLC v. DIRECTOR, DIVISION OF TAXATION // CHICAGO FIVE PORTFOLIO, LLC v. DIRECTOR, DIVISION OF TAXATION A-5276-07T

WELLS REIT II - 80 PARK PLAZA, LLC v. DIRECTOR,

DIVISION OF TAXATION // CHICAGO FIVE PORTFOLIO, LLC v.

DIRECTOR, DIVISION OF TAXATION

A-5276-07T3; A-3381-08T3 07-28-10

In this opinion, we address conflicting Tax Court decisions

regarding a 2006 legislative amendment (L. 2006, c. 33) to New

Jersey's realty transfer fee on property purchases over

$1,000,000, also known as the "Mansion Tax," N.J.S.A. 46:15-7.2.

This amendment, codified as N.J.S.A. 46:15-7.4, provides a

refund of the Mansion Tax to contracts for commercial properties

that were "fully executed before July 1, 2006," provided that

the deed was transferred on or before November 15, 2006. Two

published Tax Court opinions, Wells Reit II-80 Park Plaza, LLC

v. Director, Div. of Taxation, 24 N.J. Tax 98 (2008), and

Chicago Five Portfolio, LLC v. Div. of Taxation, 24 N.J. Tax 342

(2008), came to different interpretations of the phrase "fully

executed before July 1, 2006."

We hold that: (1) N.J.S.A. 46:15-7.4 is not an "exemption"

from the Mansion Tax, but rather a refund provision; (2) as

such, the section should be construed in favor of the taxpayer;

and (3) the plain meaning and common usage of the phrase "fully

executed before July 1, 2006," means a real estate contract that

is signed and binding upon the parties before July 1, 2006,

whether or not there are subsequent amendments to the terms.

Thus, we affirm Chicago Five Portfolio, LLC v. Div. of Taxation

and reverse Wells Reit II-80 Park Plaza, LLC v. Director of

Taxation.

IN THE MATTER OF THE SUSPENSION OF THE TEACHING CERTIFICATE OF MELISSA VAN PELT, GRAY CHARTER SCHOOL, NEWARK, ESSEX COUNTY A-5889-08T2

IN THE MATTER OF THE SUSPENSION OF THE TEACHING

CERTIFICATE OF MELISSA VAN PELT, GRAY CHARTER SCHOOL,

NEWARK, ESSEX COUNTY

A-5889-08T2 07-27-10

We affirmed the Commissioner of Education's decision

suspending appellant's teaching certificate for one year after

appellant resigned her teaching position at a charter school

immediately prior to commencement of the school term, in

violation of the terms of her employment agreement. In so

doing, we affirmed the Commissioner's determination that

N.J.S.A. 18A:26-10, which governs the suspension of a teacher's

certificate for wrongfully ceasing to perform his or her duties,

and N.J.S.A. 18A:28-8, which requires tenured teachers to give

sixty days written notice of their intention to resign from a

teaching position, equally apply to teaching staff members of

charter schools as to teaching staff members of public schools.

S.D. v. M.J.R. A-6107-08T2

S.D. v. M.J.R.

A-6107-08T2 07-23-10

In this action pursuant to the Prevention of Domestic

Violence Act (PDVA), we held that the Free Exercise Clause of

the First Amendment does not require a Family Part judge to

exempt defendant, a practicing Muslim, from a finding that he

committed the predicate acts of sexual assault and criminal

sexual contact and thus violated the PDVA. We also found that

the judge was mistaken in failing to enter a final restraining

order in the matter.

CORNETT V. JOHNSON & JOHNSON, ET AL. A-4694-08T1/A-5539-08T1

CORNETT V. JOHNSON & JOHNSON, ET AL.

A-4694-08T1/A-5539-08T1 07-23-10 (consolidated)

At issue is whether state law claims against a manufacturer

of a medical device that has been given premarket approval by

the U.S. Food & Drug Administration (FDA) are federally

preempted as well as time-barred.

We affirm in part and reverse in part the Law Division's

Rule 4:6-2(e) dismissal of plaintiffs' master complaint alleging

strict product liability, breach of express and implied

warranty, and derivative claims for alleged defects in

defendant's Cypher coronary stent as federally preempted by the

Medical Device Amendments of 1976 (MDA or Act), 21 U.S.C.A.

§§360c-360m, to the Food, Drug, and Cosmetic Act (FDCA), 21

U.S.C.A. §§301-399. Although the MDA contains an express

preemption provision against state standards for devices that

would be stricter than the requirements applicable to such

devices under the Act, it preempts only state claims that apply

substantive standards of liability different from the device-

specific federal requirements. Therefore, a state cause of

action is not preempted where it imposes only requirements that

are "parallel," rather than additional, to the existing federal

requirements under the MDA and FDCA. Additionally, a state

claim can be impliedly preempted if it could not be articulated

but for the existence of a federal requirement that was

allegedly violated.

Here, claims under New Jersey's Product Liability Act,

N.J.S.A. 2A:58C-1 to -11 (PLA), for design defect, punitive

damages and failure to warn based solely on the product's

labeling, are federally preempted as they impose different

requirements than the FDA. However, the remainder of their

failure to warn claims concerning both approved and off-label

uses, as well as their claims for manufacturing defect and

breach of express warranty, and derivative claims, as pled, are

parallel to and are not expressly or impliedly preempted by the

MDA.

Additionally, we affirm the Law Division's dismissal of one

of plaintiffs' 48 cases, as it correctly applied Kentucky's

statute of limitations, rather than New Jersey's, under

applicable choice of law principles. In any event, Cornett's

case was time-barred under either statute of repose since,

pursuant to this State's equitable discovery rule, a consensus

of the medical community is not required and, under these facts,

a lay person could have reasonably suspected a possible

connection between the stent and decedent's sub acute stent

thrombosis that developed five months after the Cypher's

implantation and eventually lead to his death just weeks later.