Civil and Personal Injury Cases NJ

DAVID F. CALABOTTA VS. PHIBRO ANIMAL HEALTH CORPORATION, ET AL. (L-1979-17, BERGEN COUNTY AND STATEWIDE) (A-1576-17T3)

This lawsuit is brought by an Illinois resident against his New Jersey-based former employer. Plaintiff alleges the company wrongfully denied him a promotion to a position in New Jersey and thereafter wrongfully terminated him from his job with its subsidiary in Illinois.

Plaintiff claims the company engaged in "associational" discrimination against him, in violation of the New Jersey Law Against Discrimination ("NJLAD"), based on the fact that his wife was then terminally ill with cancer. The company maintains it treated plaintiff fairly, and that it justifiably discharged him for engaging in inappropriate conduct at a trade show.

The trial court concluded that Illinois law, rather than the NJLAD, must apply to plaintiff's claims of discrimination because he lived in Illinois and worked for defendants' subsidiary in Illinois. Given that Illinois law has yet to recognize a cause of action for associational discrimination, the court granted defendants' motion to dismiss plaintiff's claims with prejudice.

On appeal in this case of first impression, this court holds that the NJLAD, notwithstanding the solitary reference to "inhabitants" in its preamble, can extend in appropriate circumstances to plaintiffs who reside or work outside of this state. However, whether the NJLAD applies to a particular nonresident plaintiff's claims turns upon a weighing of the multiple choice-of-law factors set forth in the Restatement (Second) of Conflicts of Laws (Am. Law Inst. 1971), as adopted and construed by the New Jersey Supreme Court.

The court concludes that New Jersey law (specifically the NJLAD's ban against associational discrimination) applies to defendants' alleged failure to give plaintiff fair consideration for a promotion to a position in New Jersey. The Second Restatement factors strongly weigh in favor of applying New Jersey law, not Illinois law, to this failure-to-promote claim. This court therefore reverses the trial court’s dismissal of that discrete claim and reinstate it.

As for plaintiff's wrongful discharge claim, this court vacates its dismissal and remands the choice-of-law issue pertaining to that claim to the trial court, to enable the further development of critical facts and analysis bearing on the Second Restatement factors.

JED GOLDFARB VS. DAVID SOLIMINE (L-3236-14, ESSEX COUNTY AND STATEWIDE) (A-3740-16T2)

Plaintiff appeals from the trial court's denial of his recusal motion. Before trial of this commercial dispute, plaintiff learned that the judge secured the trial assignment in response to an ex parte communication from a former law clerk, who was an attorney with the law firm for defendant. The attorney asked the judge if she was available to preside, and identified the partner who would try the case. The judge said the partner "likes appearing before me." Plaintiff unsuccessfully argued this amounted to "judge shopping."

On appeal, the court concludes that an ex parte communication to have a case assigned to a particular judge is not a mere scheduling matter. The judge's affirmative response to the communication in this case created an appearance of impropriety. As for remedy, the court holds that less than a complete retrial can restore public confidence in the proceedings' integrity and impartiality. The court affirms the jury's verdict on liability. It decides de novo, or as a matter of original jurisdiction, the remaining evidentiary and legal issues on appeal, and remands for a new trial on damages before a new judge.

RICHARD CAPPARELLI VS. MATT LOPATIN (C-000153-17, MIDDLESEX COUNTY AND STATEWIDE) (A-1948-17T4)

Business partners entered into two separate settlement agreements to resolve disputes arising from the dissolution of their jointly-owned companies. The first agreement provided for binding arbitration of all disputes before a three-person arbitration panel, one of whom had served as the parties' corporate counsel and was designated as the neutral arbitrator on the three-person panel. In the event he withdrew or was dismissed from the panel by one of the parties, the agreement specified a mechanism for the selection of his replacement.

The second agreement provided for the resolution of disputes pertaining to the collection of accounts receivable from third-party debtors only, and designated corporate counsel as the sole final decision maker. Unlike the first agreement entered two years earlier, the second agreement made no mention of arbitration and provided no mechanism for the replacement of corporate counsel in the event he became unavailable.

When corporate counsel resigned his role as final decision maker under the second agreement, and the parties were unable to agree on a replacement, plaintiff filed an order to show cause and verified complaint, seeking to compel the appointment of a replacement. The court affirmed the Chancery Division's decision that, based upon the doctrines of impossibility and frustration of purpose, corporate counsel's unavailability rendered the second agreement void. Further, because there was no mention of arbitration in the second agreement, it was not an arbitration agreement governed by the New Jersey Uniform Arbitration Act, N.J.S.A. 2A:23B-1 to -32.

DCPP VS. B.H., H.S., AND T.S., IN THE MATTER OF M.S. (FN-13-0236-17, MONMOUTH COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-4179-17T2)

The court reversed the abuse or neglect finding under Title 9 against defendant, who was the boyfriend of the child's biological mother. During the eighteen months that defendant dated the child's mother, he provided no financial support for the child or the mother; never lived in the same house as the child and the mother; and the child never described defendant using any parental terms. Based on the unrefuted testimony, defendant had no ongoing responsibility or obligation to provide regular care or supervision for the child. The court held that a person who assumes brief or temporary supervision or care of a child, such as a one-time request to babysit or drive a child to a designated location at the request of a biological parent, does not impose a general and continuing obligation between the adult and the child to trigger the requisite duty of care to charge abuse or neglect under Title 9.

CATALINA MARKETING CORPORATION VS. LOUIS HUDYMAN (C-000129-18, MORRIS COUNTY AND STATEWIDE) (A-3044-18T4)

Defendant was sued by his former employer, a foreign corporation, and moved to quash two sets of subpoenas duces tecum and ad testificandum served on defendant's current employer, an out-of-state corporation, in New York and California. Defendant argued the discovery sought was not relevant, Rule 4:10-2(a), or otherwise burdensome or sought for annoyance or embarrassment. R. 4:10-3. Defendant alternatively sought a protective order. Plaintiff opposed the motion, arguing the court lacked jurisdiction to rule on the motion to quash.

The trial judge denied the motions without prejudice, reasoning she lacked jurisdiction under the Uniform Interstate Depositions and Discovery Act (UIDDA), as adopted in New Jersey by Rule 4:11-5(c). However, while defendant's motion for leave to appeal was pending, the judge supplemented her statement of reasons, clarifying that she did not lack jurisdiction to reach the merits of defendant's motion, but rather, that she lacked jurisdiction to compel out-of-state witnesses to appear for the depositions. See R. 4:11-5 ("A deposition for use in an action in this state . . . may be taken outside this state .. . pursuant to a subpoena issued to the person to be deposed in accordance with Rule 4:14-7 and in accordance with the procedures authorized by the foreign state . . . .").

The court affirmed the orders as modified, holding that a New Jersey court always has jurisdiction to decide the merits of a discovery dispute between parties to the litigation, and that the UIDDA and the express language of Rule 4:11-5 do not compel a contrary result.

TRACEY L. VIZZONI, ETC. VS. B.M.D., ET AL. (L-0575-15, SOMERSET COUNTY AND STATEWIDE) (A-1255-18T3)

In this case, the court affirms the entry of judgment for the defendant, a psychiatrist, and dismissal of the personal injury case against him. Plaintiff is the estate of a woman killed by the psychiatrist's patient when the patient hit the woman with her car while the woman was riding a bicycle on a narrow country road. Plaintiff sued the psychiatrist after learning the driver was his patient and he had prescribed numerous medications that had the capacity to impair driving.

Plaintiff asserted the psychiatrist's negligent prescription of medications without a warning not to drive was the proximate cause of the fatal crash. Plaintiff argued the psychiatrist had a duty to warn for the benefit of third parties. The trial court's order was affirmed because the court concluded the record did not establish the patient was impaired by the medications prescribed by the psychiatrist when she caused the fatal injury.

NDO SURGI CENTER A/S/O BERNADETTE HARPER V.NJM INSURANCE GROUP (A-1934-17T3)

Defendant New Jersey Manufacturers appeals an order requiring it to reimburse an ambulatory surgical center (ASC) for a Current Procedural Terminology (CPT) code. The Department of Banking and Insurance's medical fee schedule listed the designation "N-1" for this CPT code, meaning it could be performed at an ASC but was "not separately reimbursable because the service [was] included in another procedure." In accord with N.J. Manufacturers Ins. Co. v. Specialty Surgical Center, 458 N.J. Super. 63 (App. Div. 2019), the court holds that the insurer was not required to reimburse the ASC for this CPT code, even though Medicare would permit reimbursement, because the Department's fee schedule did not list any payment amount for the code.