LIDIA BRANCO VS. FRANCISCO ANDRE RODRIGUES,

 Plaintiff and decedent were partners for twenty-five years but never married.  During their relationship, decedent owned an income-producing property in fee simple, which, unbeknownst to plaintiff, he transferred during his lifetime to himself and plaintiff as joint tenants with rights of survivorship.  Decedent signed and recorded the transfer deed.  Plaintiff discovered her interest in the property only after decedent passed away.  Plaintiff sought injunctive relief to quiet title and was granted summary judgment, based on the trial court's holding that all elements of a valid inter vivos gift were present.

Defendant, who is decedent's son and administrator of the estate, urges reversal, claiming material issues of fact precluded summary judgment, specifically challenging the validity of the inter vivos gift of real property.

The court affirms.  Defendants presented no evidence to rebut the presumptions of donative intent, delivery and acceptance raised by the recorded transfer deed.  Acceptance is presumed subject to plaintiff's right to disclaim her interest within a reasonable time of becoming aware of it.  The additional element of relinquishment required for a valid inter vivos gift in New Jersey was also satisfied upon recordation of the transfer deed because decedent could not unilaterally restore his former fee simple estate.

Gannett Satellite Information Network, LLC v. Township of Neptune

 The Court affirms as modified the Appellate Division’s judgment. The Court declines to adopt an exception to the American Rule for common law right of access claims to public records. Those claims impose significant burdens on municipal clerks and other records custodians; they require a careful balancing of competing interests and the application of an array of factors that can challenge even a seasoned judge. Imposing fee-shifting in this category of cases would venture far beyond the narrow exceptions to the American Rule that New Jersey courts have adopted to date. Accordingly, Gannett is not entitled to an award of attorneys’ fees in this appeal.

MADELINE KEYWORTH VS. CAREONE AT MADISON AVENUE

 These consolidated cases require us to consider the scope of the statutory self-critical analysis privilege and determine whether materials developed as part of self-critical analysis conducted pursuant to a facility's patient safety plan are subject to discovery, disclosure, and admissible at trial.  This analysis hinges upon whether the facilities involved in these cases met the requirements imposed by the Patient Safety Act (PSA), N.J.S.A. 26:2H-12.23 to -12.25, and related regulations, rendering the materials sought by plaintiffs privileged and protected from disclosure.

Defendants argue the trial court erred by ruling incident/investigation reports concerning separate incidents resulting in injuries at two facilities are not privileged under the PSA and therefore discoverable.  The court reversed the trial court's orders. 

Surveying the case law interpreting the PSA and regulations, the court notes that the PSA was designed to reduce medical errors by promoting internal self-reporting and self-critical analysis related to adverse events and near misses by health care facilities.  N.J.S.A. 26:2H-12.25 renders the entire self-critical-analysis process privileged, shielding a health care facility's deliberations and determinations from discovery or admission into evidence.  N.J.S.A. 26:2H-12.25(g), does not condition the privilege on the finding of a Serious Preventable Adverse Event (SPAE).  That an event is not reportable does not abrogate the self-critical-analysis privilege.  The privilege unconditionally protects the process of self-critical analysis, the results of the analysis, and the resulting reports developed by a facility in its compliance with the PSA.  A court may not order the release of documents prepared during the process of self-critical analysis. 

N.J.S.A. 26:2H-12.25(c) requires health care facilities to report every SPAE that occurs in that facility to the Department of Health (DOH).  The documents, materials and information submitted to the DOH pursuant to this requirement are absolutely privileged and shall not be "subject to discovery or admissible as evidence or otherwise disclosed in any civil, criminal, or administrative action or proceeding."  N.J.S.A. 26:2H-12.25(f).  The statute provides no rationale or standard for parsing the contents of the documents, allowing for some portions to be privileged and others not privileged. 

However, when information sought to be protected from disclosure is not submitted to the DOH, the path to a privilege is different.  N.J.S.A. 26:2H-12.25(g) establishes the self-critical analysis privilege for internal documents that are the product of an 'investigative process that may or may not lead to reporting to the DOH.  Any documents, materials, or information developed by a health care facility as part of a process of self-critical analysis conducted pursuant to N.J.S.A. 26:2H-12.25(b) is not subject to discovery, disclosure or admissible as evidence in any civil, criminal, or administrative proceeding. 

Accordingly, if documents are submitted to the DOH pursuant to N.J.S.A. 26:2H-12.25(f) or meet the requirements of N.J.S.A. 26:2H-12.25(g), they are absolutely privileged and not subject to discovery.  Under either of those circumstances, a trial court does not engage in a redaction process and release the redacted document.  The entire document is statutorily protected from disclosure. 

At the same time, the PSA expressly preserves plaintiffs' right to discover facts through conventional means of discovery if obtained from any source or context other than those specified in the PSA.  Moreover, documents created outside the self-critical analysis process are subject to discovery. 

In each case, plaintiffs are free to engage in discovery of facts from non-privileged sources.  Additionally, if defendants produced voluminous medical records in response to a discovery request in either case, plaintiff may request, and the court may order, that defendants provide a "narrative to steer them to information contained in thousands of pages of medical records" in accordance with Brugaletta v. Garcia, 234 N.J. 225, 252 (2018).

Kathleen DiFiore v. Tomo Pezic; Dora Deleon v. The Achilles Foot and Ankle Group;

 The Court affirms the Appellate Division’s core holding that trial courts determine on a case-by-case basis what conditions, if any, to place on a DME -- including who may attend and whether it may be recorded -- with no absolute prohibitions or entitlements. The Court further affirms that video recording, in addition to audio recording, should be included in the range of options; that the parties shall enter into a protective order when a defense expert is concerned about the disclosure of proprietary information; that when third-party observation is permitted, the trial court shall impose reasonable conditions to prevent any disruption of or interference with the exam; and that, if a foreign or sign language interpreter is needed, a neutral interpreter shall be selected by the parties or, failing agreement, by the court.

Catherine Parsells v. Board of Education of the Borough of Somerville,

 Parsells did not knowingly waive her tenured right to a full-time teaching position, and the Court therefore affirms the Appellate Division’s decision upholding the Commissioner’s award of “full back pay, benefits, and emoluments, less mitigation.” But the Court rejects the extension of Bridgewater-Raritan to impose a duty on school boards to notify, in advance, full-time teachers who consider voluntarily transferring to part-time teaching positions that they may not have a right to return to their full-time position.

ROSEMARY BENEDUCI VS. GRAHAM CURTIN, P.A. A-0466-21

 This appeal presents a question of first impression regarding whether a claim can be made under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, where (1) an employer merges with another employer, (2) the employee does not apply for a position with the new employer, but (3) the employee contends that while all other employees were offered employment with the new employer, the employer did not extend the same offer, for reasons proscribed by the LAD.

Because of the LAD's remedial purpose, plaintiff's claim that the decision not to transition her employment from Graham Curtin, P.A. –– the closing employer –– to McElroy Deutsch, Mulvaney & Carpenter, LLP. –– the new employer –– was based on discriminatory factors may constitute a viable cause of action.  There are genuine disputes of material facts regarding whether the decision not to employ her at McElroy Deutsch, Mulvaney & Carpenter was, in fact, discriminatory.  Therefore, the court reverses the motion court's summary judgment dismissal of plaintiff's complaint.

In addition, because the motion court did not address the specifics of plaintiff's claims for wrongful termination, retaliatory termination, and aiding and abetting harassment based on age, disability, and use of disability leave,  we do not either.       

URIEL GUZMAN VS. M. TEIXEIRA INTERNATIONAL, INC., A-0841-21

 Plaintiff alleged his employer wrongfully terminated him based on a perceived disability in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50.  The disability allegedly perceived by defendants was that plaintiff was "suffering from COVID-19."  A Law Division judge granted defendants' motion to dismiss pursuant to Rule 4:6-2(e), finding plaintiff had failed to plead a viable cause of action for perceived disability discrimination under the LAD. 

The court affirmed, agreeing that even assuming defendants believed plaintiff had COVID-19, the facts plaintiff had alleged in his pleadings – on July 23, 2020, plaintiff felt ill in that he felt "cold, clammy, and weak"; he was able to report to work and stay until the end of the day; the next day he was able to go to a free clinic to obtain a COVID-19 test; he did not allege he had gone to a hospital or a doctor's office or that he had otherwise sought medical attention or treatment; some unspecified time later, he reported he "was feeling better"; he was feeling well enough that he felt able to and offered to return to work; and he was terminated on July 29, 2020, after he had reported his condition had improved and he felt well enough to work – were not sufficient to establish a prima facie case under the LAD that he was terminated because his employer perceived he had a disability.

Philip Pantano v. New York Shipping Association

 

Application of the Galvao multi-factor test -- which can involve matters of disputed fact and witness credibility -- is presumptively for a jury to determine. The court itself should not resolve the borrowed-employee issue unless the evidence concerning the factors is so one-sided that it warrants judgment in a moving party’s favor as a matter of law. Because the evidence in this case concerning the Galvao factors was not sufficiently one-sided, the trial court incorrectly granted defendant’s Rule 4:40-1 motion and deemed the worker who caused the accident a borrowed employee of plaintiff’s own employer.