ESTATE OF RICHARD M. LASIW, ET AL. VS. PEDRO M. PEREIRA M.D., E

  In this medical malpractice litigation, plaintiff, individually and as executrix of her late husband's estate, moved to compel defendants to permit her expert to conduct an onsite inspection of decedent's electronic medical record (EMR).  Plaintiff contended that pursuant to Rule 4:18-1, she had the right to inspect and examine the "metadata" associated with the EMR, which exceeded more than 2,000 pages and had already been produced in PDF format by defendants.  Plaintiff agreed that defendants would control the log in to the computer system and the mouse guiding the expert's review.  Plaintiff also agreed not to access the system through the use of thumb drives or discs to copy any information.  Plaintiff also sought production of an "audit trail" of the EMR for nearly a full year after decedent's discharge.

         Defendants objected, arguing the discovery request was unduly burdensome and posed security risks and the risk of exposing other patient's EMR.  They argued that plaintiff should identify specific entries in the record for which she sought metadata, and they would produce it, subject to assertions of confidentiality or privilege.  Defendants also objected to producing the audit trail, claiming it, too, was unduly burdensome and irrelevant.

         The Law Division judge granted plaintiff's motion, and the court granted defendants leave to appeal.

         The court concluded that plaintiff was entitled to access metadata in decedent's EMR pursuant to Rules4:10-2(f) and 4:18-1, and that defendants bore the burden of demonstrating the discovery request was unduly burdensome.  The court agreed with the motion judge's conclusion that defendants failed to do so, and the proposed inspection was reasonable.  The court affirmed that portion of the judge's order granting the inspection as modified by reasonable restrictions, including a time limit for the inspection of four hours.

         The court, however, reversed that portion of the judge's order requiring defendants to produce a post-discharge audit trail that extended beyond the date of the last entries made to decedent's EMR, finding plaintiff failed to demonstrate the potential for relevant information from such a broad request. 

STEPHANIE ANGUS VS. BOARD OF EDUCATION, ETC.

STEPHANIE ANGUS VS. BOARD OF EDUCATION, ETC. The court affirms the New Jersey Commissioner of Education's final agency decision finding petitioner Stephanie Angus is entitled to sick leave under N.J.S.A. 18A:30-1 during the period the Board of Education of the Borough of Metuchen excluded Angus from working in her position as a tenured teacher, pursuant to a directive from the New Jersey Department of Health, because of her exposure to a person who tested positive for COVID-19. The court determined Angus qualified for sick leave under N.J.S.A. 18A:30-1's plain language, which in part defines sick leave to include an absence from an employee's "post of duty . . . because he or she has been excluded from school by the school district's medical authorities on account of a contagious disease." The court rejected the Board of Education's claim N.J.S.A. 18A:30-1 qualifies an employee for sick leave when the employee is excluded from school "on account of a contagious disease" only where the employee personally suffers from the disease. The court reasoned the Board's interpretation is not supported by the statute's plain language. The court also determined acceptance of the Board of Education's interpretation of N.J.S.A. 18A:30-1 would render the exclusion-from-work-on-account-of-a-contagious-disease sick leave qualification superfluous because the statute otherwise separately defines sick leave to include an employee's absence from work where the employee suffers a personal disability due to an illness.

DELAWARE RIVER JOINT TOLL BRIDGE COMMISSION, ET AL. VS. GEORGE HARMS CONSTRU

DELAWARE RIVER JOINT TOLL BRIDGE COMMISSION, ET AL. VS. GEORGE HARMS CONSTRU Plaintiff Delaware River Joint Toll Bridge Commission (Commission) is a bi-state entity created by an interstate compact between the State of New Jersey and the Commonwealth of Pennsylvania and approved by the United States Congress. In this matter, arising out of a construction project to replace the Scudder Falls Bridge that connects the two states, the court considered whether the Commission was authorized to approve, use, and enforce a project labor agreement (PLA) as a mandatory requirement in its bid specifications. This mandate required all bidding contractors and subcontractors to enter into a PLA with certain named unions affiliated with the local building and construction trades councils, recognizing those unions as the sole and exclusive bargaining representatives of the bidder's project workforce. Defendant George Harms Construction Co. was prevented from bidding on the project because it was a party to a collective bargaining agreement with United Steel Workers (USW), which was excluded from the PLA. Harms threatened to seek an injunction if the Commission did not add USW as a signatory union to the PLA. Only one company bid on the project, submitting a bid $69 million over the projected cost of the project and $71 million more than Harms' projected bid. The Commission sought a declaratory judgment permitting it to award the contract, including the PLA, to the successful bidder. Harms answered and asserted numerous counterclaims, including a violation of competitive bidding laws. The trial court dismissed the complaint as moot (the project was completed during the litigation) and granted summary judgment to the Commission on the counterclaims. The court preliminarily determined the issue was not moot because of the importance of interstate compacts and the high likelihood that the Commission would use a PLA in a future contract. The issue, then, was whether the Commission had the authority under its compact to approve and use a PLA in its bidding process. The compact itself is silent on PLAs. Therefore, the panel looked to the two states' treatment of PLAs. The court engaged in an extensive analysis of the case law and legislative history in New Jersey and Pennsylvania regarding PLAs. Currently New Jersey has a statute governing PLAs, N.J.S.A. 52:38-1 to -7. Pennsylvania does not have any legislation. The case law, emanating from the Commonwealth Court disfavors PLAs unless the project involves "extraordinary circumstances" and the PLA treats union and nonunion contractors evenly. Therefore, New Jersey and Pennsylvania do not have parallel or substantially similar state legislation or common law regarding the use of PLAs. The court concluded the Commission did not have the power to create and authorize use of the mandatory PLA for its project because: (1) there is no express authority for unilateral action in the compact; (2) New Jersey and Pennsylvania have not enacted complementary or parallel legislation and do not have similar common law on PLAs; and (3) the Commission has not consented to exercise of single-state jurisdiction. The court affirmed the dismissal of the declaratory judgment complaint, albeit for different reasons than articulated by the trial court. The court reversed the dismissal of the counterclaims and remanded to the trial court.

JEFFREY SANTANA VS. SMILEDIRECTCLUB, LLC (L-3156-21

JEFFREY SANTANA VS. SMILEDIRECTCLUB, LLC (L-3156-21 Plaintiff filed a products-liability complaint against defendant, alleging the invisible tooth aligners he purchased on-line damaged his teeth and resulted in lasting injuries. Defendant moved to dismiss the complaint, citing an arbitration provision that was embedded in the first of three hyperlinked underlined documents that appeared in different colored font. The hyperlinked document, entitled "Informed Consent," included not only the arbitration agreement but also explanations of the benefits and risks of using the aligners, representations by plaintiff regarding his oral health, and his consent to the treatment. Users could not proceed to open an account and order the aligners unless they clicked on a box next to the three hyperlinked documents, "I Agree," and another button, "FINISH MY ACCOUNT." The Law Division denied defendant's motion, relying extensively on our recent decision in Wollen v. Gulf Stream Restoration & Cleaning, LLC, 468 N.J. Super. 483 (App. Div. 2021). The court reversed, drawing distinctions between the "browsewrap" agreement at issue in Wollen, and the "clickwrap" agreement in this case. See, e.g., Skuse v. Pfizer, Inc., 244 N.J. 30, 55 n.2 (2020) ("Contracts that require 'that a user consent to any terms or conditions by clicking on a dialog box on the screen in order to proceed with the internet transaction' are sometimes called 'clickwrap' agreements," and "are 'routinely enforced by the courts.'" Skuse, 244 N.J. at 55 n.2 (first quoting Feldman v. Google, Inc., 513 F. Supp. 2d 229, 236 (E.D. Pa. 2007); and then quoting HealthPlanCRM, LLC v. AvMed, Inc., 458 F. Supp. 3d 308, 334–35 (W.D. Pa. 2020)).

In the Matter of the Alleged Failure of Altice USA, Inc., to Comply with Certain Provisions of the New Jersey Ca

Section 543(a)(1) of the Cable Act does not preempt the proration requirement in N.J.A.C. 14:18-3.8. The regulation does not regulate “rates for the provision of cable service,” but rather prevents cable companies from charging for cable service that customers have cancelled. The regulation does not set the “rate” that companies can charge. It simply protects cable users from paying for service they no longer want. Furthermore, contrary to Altice’s alternative argument, neither Altice nor its predecessor sought or received a BPU waiver from prorating cable bills.

PEGGY BIRMINGHAM, ET AL. VS. TRAVELERS NEW JERSEY INS. CO.

     The court determined an insured's satisfaction of its deductible or copayment obligation under a standard automobile policy does not operate to also reduce the $15,000 statutory Personal Injury Protection (PIP) limits of liability.  In reaching its decision, the court examined the policies' declaration pages, PIP policy provisions, and the incorporated Buyer's Guide, and concluded Travelers did not clearly express to reasonable insureds, like plaintiffs, that the limits of liability would be reduced if their claims exceeded $15,000.  The court also evaluated the legislative history of New Jersey's no-fault scheme and determined its decision did not violate the Legislature's overarching goal of reducing the costs of auto insurance.  
     Further, the court held absent legislative and regulatory approval, defendant was likely precluded from providing less than $15,000 of PIP medical expense benefits, regardless of the clarity of its policies or declaration pages.  Finally, the court distinguished our previous decision in IMO Industries Inc. v. Transamerica Corp., 437 N.J. Super. 577, 622 (App. Div. 2014), as that case involved a commercial general liability policy between sophisticated parties and relied in part on Benjamin Moore & Co. v. Aetna Co., 179 N.J. 87, 93 (2004), which involved a commercial general liability policy whose express language clearly indicated to the insured that the insurer's limit was reduced by the policy's deductible.