A.M. VS. MONMOUTH COUNTY BOARD OF SOCIAL SERVICES (DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICE) (RECORD IMPOUNDED) (A-5105-18)

 A.M. VS. MONMOUTH COUNTY BOARD OF SOCIAL SERVICES (DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICE) (RECORD IMPOUNDED) (A-5105-18)

Petitioner challenged a final agency decision of the Acting Director, Division of Medical Assistance and Health Services finding her eligible for Medicaid benefits but: (1) imposing a penalty of $496,333.33 for the value of the one-third interest in her home she transferred to her son during the five-year look - back period " established in N.J.A.C. 10:71-4.10; and (2) directing that the penalty be increased by the value of a life estate in the home she relinquished to her son at time of the transfer. The court reversed the Acting Director's decision, finding the transfer of both interests in the property to be exempt from the penalty under the child caregiver exemption established in N.J.A.C. 10:71-4.10(d)(4). The regulation has not been previously construed in a published opinion.

The exemption applies to a Medicaid applicant's transfer of an interest in her home to a child who has lived in the home for a minimum of two years and provided assistance to the applicant beyond that normally expected of a child and which delayed the parent's institutionalization. The Acting Director found the exemption did not apply because petitioner's son: (1) worked full-time outside the home four days a week; (2) did not establish that the assistance he provided to his mother before work, after work, overnight, and during the day when he was not working delayed her institutionalization; (3) used petitioner's funds to pay for home healthcare aides when he was working; and (4) did not prove his claim to have reduced his work hours when his mother's dementia progressed.

The court found that the Acting Director misapplied the regulation, given the substantial evidence in the record that petitioner's son provided assistance beyond that normally expected of a child, including bathing, clothing, feeding, toileting, and medicating petitioner daily, as well as monitoring her overnight wandering and other needs. In addition, the court held that a child's full-time employment and use of home healthcare aides paid with petitioner's funds did not negate the exemption, as the regulation did not require that a child devote his full-time and own funds to caring for his parent to qualify for the exemption. The court held that it is the qualitative nature of the care provided by the child and the resulting delay in institutionalization that are relevant to applicability of the exemption.

ROBERT FUHRMAN, ET AL. VS. HEATHER MAILANDER, ET AL. (L-4906-20, BERGEN COUNTY AND STATEWIDE) (A-0080-20)

 ROBERT FUHRMAN, ET AL. VS. HEATHER MAILANDER, ET AL. (L-4906-20, BERGEN COUNTY AND STATEWIDE) (A-0080-20)

In this accelerated appeal arising from a municipal clerk's rejection of an initiative petition to move the school board and municipal elections to the date of the November general election, the court held that the municipal clerk violated the Faulkner Act, N.J.S.A. 40:69A-184 to -192, by repeatedly refusing to certify and file the initiative petition due to perceived minor technical noncompliance. The court also held that the municipal clerk's actions violated the right of initiative petition guaranteed by the Faulkner Act, thereby depriving the petitioners of a substantive right protected by N.J.S.A. 10:6-2(c) of the New Jersey Civil Rights Act, and entitling them to an award of reasonable attorney's fees and costs under N.J.S.A. 10:6-2(f).

BOROUGH OF FRANKLIN VS. JEFFREY R. SMITH (L-0566-19, SUSSEX COUNTY AND STATEWIDE) (A-2545-19)

 BOROUGH OF FRANKLIN VS. JEFFREY R. SMITH (L-0566-19, SUSSEX COUNTY AND STATEWIDE) (A-2545-19)

This appeal requires us to determine if a police officer employed in a non-civil service municipality can be subpoenaed to testify in the municipality's case-in-chief at a departmental disciplinary hearing seeking his termination. The court concludes the subpoena violates neither fundamental fairness and due process nor statutory procedures governing discipline of a police officer in a non-civil service municipality. The court further concludes that absent an objection to a specific question, it is premature to determine whether there is a violation of the officer's Fifth Amendment constitutional right against self-incrimination. Accordingly, the court affirms the Law Division order granting the municipality's request to enforce the subpoena.

In the Matter of the Civil Commitment of W.W., SVP-86-00 (083890) (Essex County & Statewide) (A-63-19; 083890)

 In the Matter of the Civil Commitment of W.W., SVP-86-00 (083890) (Essex County & Statewide) (A-63-19; 083890)

The plain language of N.J.S.A. 30:4-27.30(b) requires the State to produce psychiatric testimony in support of commitment when the State seeks the initial or continued commitment of a sexually violent predator. The State therefore did not meet its burden in this case by producing a psychiatrist who did not support commitment.

CRYSTAL POINT CONDOMINIUM ASSOCIATION, INC. VS. KINSALE INSURANCE COMPANY (L-1579-20, HUDSON COUNTY AND STATEWIDE) (A-4621-19)

 CRYSTAL POINT CONDOMINIUM ASSOCIATION, INC. VS. KINSALE INSURANCE COMPANY (L-1579-20, HUDSON COUNTY AND STATEWIDE) (A-4621-19)

Plaintiff, the managing association for a high-rise condominium building, obtained monetary judgments by default against two companies involved in construction and inspection of the condominium building. Alleging the companies were insured under insurance policies issued by defendant, plaintiff filed a declaratory judgment complaint seeking coverage. Plaintiff appeals the Law Division order that dismissed its declaratory judgment complaint and required it to arbitrate its claim for insurance coverage.

The court reversed the order. Under the direct action statute, N.J.S.A. 17:28-2, plaintiff can sue defendant directly for coverage under the insurance policies when there is evidence the insureds are bankrupt or insolvent. However, plaintiff did not assent to the arbitration clause in the policy and therefore, it is not required to arbitrate its claims. The court reinstated the declaratory judgment complaint and remanded for further proceedings.

ELIZABETH HRYMOC, ET AL. VS. ETHICON, INC. ET AL MARY MCGINNIS, ET AL. VS. C.R. BARD, INC., ET AL. (L-13696-14 AND L-17543-14, BERGEN COUNTY AND STATEWIDE) (CONSOLIDATED) (A-5151-17/A-1083-18)

 ELIZABETH HRYMOC, ET AL. VS. ETHICON, INC. ET AL MARY MCGINNIS, ET AL. VS. C.R. BARD, INC., ET AL. (L-13696-14 AND L-17543-14, BERGEN COUNTY AND STATEWIDE) (CONSOLIDATED) (A-5151-17/A-1083-18)

In these related appeals, the court overturns separate jury verdicts in favor of plaintiffs in two product liability actions involving pelvic mesh medical devices. The devices in question were designed and manufactured by the respective defendants. They were surgically implanted in the female plaintiffs in each case, and severe adverse complications ensued for them and their spouses. The juries in both cases found that defendants were liable under separate theories of design defect and inadequate warnings. They awarded each plaintiff and their spouses substantial compensatory and punitive damages.

The court concludes the judges who tried these difficult complex cases erred by categorically excluding any proof that defendants had obtained what is known as "Section 510(k) clearance" from the Food and Drug Administration ("FDA"), see 21 U.S.C. § 360c, before marketing the devices to plaintiffs' surgeons. The total disallowance of such proof had the patent capacity to deprive defendants of a fair trial, most poignantly with respect to the state-of-mind and venal conduct issues that underlie the punitive damages awards.

Although several courts in other jurisdictions have chosen in their discretion to exclude such 510(k) evidence from jury trials involving the design and safety of mesh devices, the court adopts the approach of other courts that have deemed such proof admissible with appropriate limiting instructions. There is sufficient probative value of such evidence under N.J.R.E. 401 to justify informing the jurors, without extensive elaboration, that the products were reviewed by the FDA under the 510(k) clearance process before defendants' sales in these cases. The complete ban of such proof was unfairly capitalized upon by plaintiffs' counsel at both trials, in a manner that easily could have given the jurors a skewed impression of the totality of circumstances. Countervailing concerns under N.J.R.E. 403 about potential juror confusion and consumption of time, while legitimate, can be capably addressed by the trial court through appropriate means discussed in this opinion.

The matters are remanded for new trials to be preceded by N.J.R.E. 104 hearings, at which the trial court may consider adopting measures such as explanatory jury instructions, reasonable time and witness limits, and prohibitions on misleading demonstrative aids about the 510(k) clearance process.

Aside from this one point of reversal, the court affirms the trial court in all other respects in both cases. Among other things, the court upholds the Hrymoc judge’s rulings that: (1) plaintiffs at that trial met their burden of establishing defective design of the pelvic mesh devices under N.J.S.A. 2A:58C-2, and presented to the jury sufficient evidence of reasonably safer alternatives; (2) defendants failed to establish a viable "state-of-the-art" defense under N.J.S.A. 2A:58C-3(a), and thus no jury charge on that defense was warranted; and (3) plaintiffs adduced sufficient evidence of proximate causation arising from a defective warning, as there was not "unequivocal" evidence that Mrs. Hrymoc's surgeon would have implanted a pelvic mesh device in her anyway if defendants had provided more complete material information about the product's dangers.

The court addresses other issues raised on appeal in Hrymoc and McGinnis in an unpublished, latter portion of this opinion.

Kim Goulding v. NJ Friendship House, Inc.(083726)(Statewide) (A-48-19; 083726) The injury sustained by Kim Goulding while volunteering at her employer- sponsored event is compensable because, as to Goulding, the event was not a social or recreational activity. Even if N.J.S.A. 34:15-7 was applicable here, Goulding would still have satisfied the two-part exception set forth in that statute. Her role at the event, which was planned to be held annually, was the same as her role as an employee, and but for her employment at Friendship House, Goulding would not have been asked to volunteer and would not have been injured. Thus, Goulding’s injury was “a regular incident of employment.” See ibid. Additionally, Friendship House received a benefit from Family Fun Day “beyond improvement in employee health and morale.” See ibid . The event was not a closed event for the Friendship House team. Rather, it was an outreach event to celebrate and benefit Friendship House’s clients, creating goodwill in the community.

Church volunteer here entitled to worker's comp for injury.

Kim Goulding v. NJ Friendship House, Inc.(083726)(Statewide) (A-48-19; 083726)

The injury sustained by Kim Goulding while volunteering at her employer- sponsored event is compensable because, as to Goulding, the event was not a social or recreational activity. Even if N.J.S.A. 34:15-7 was applicable here, Goulding would still have satisfied the two-part exception set forth in that statute. Her role at the event, which was planned to be held annually, was the same as her role as an employee, and but for her employment at Friendship House, Goulding would not have been asked to volunteer and would not have been injured. Thus, Goulding’s injury was “a regular incident of employment.” See ibid. Additionally, Friendship House received a benefit from Family Fun Day “beyond improvement in employee health and morale.” See ibid . The event was not a closed event for the Friendship House team. Rather, it was an outreach event to celebrate and benefit Friendship House’s clients, creating goodwill in the community.