Daily Decision Service Alert: Vol. 21, No. 186 - September 24, 2012

 

 

43-2-7746 Donchev v. DeSimone, App. Div. (per curiam) (12 pp.) Defendant, the president of D.N. DeSimone Construction Co. Inc., hired DND to complete several projects at his own home, including garage roof repairs. Plaintiff, a DND employee, was injured when he fell through the roof. He sued defendant individually. Defendant appeals the denials of his two motions for summary judgment. The panel reverses, finding that the judge erred in denying the first summary judgment motion since defendant, as a landowner, neither owed nor breached a duty of care to plaintiff. His status as president of DND or experience in the construction industry was legally irrelevant because the employer-employee relationship did not impact the way the DND employees carried out the roof work. Further, the judge erred in denying defendant's second summary judgment motion because, even if he had been acting as plaintiff's employer and breached a duty of care in this capacity, he is immune from suit pursuant to the Workers' Compensation Act since there is no evidence that defendant acted with knowledge that it was substantially certain a worker would suffer injury.

 

11-2-7747 Jecas v. D&R Boats, Inc., App. Div. (per curiam) (18 pp.) Plaintiffs appeal from an order granting summary judgment to defendants D&R Boats, and three individuals associated with D&R. Defendants cross-appeal from an order vacating an order dismissing the case. In 2004, plaintiffs purchased a powerboat that contained an onboard generator from D&R. However, the generator would not run. Plaintiff filed a breach of contract special civil part (SCP) pro se complaint against D&R seeking damages to cover the full cost of the repairs. D&R then agreed to repair the generator if plaintiff dismissed the SCP complaint, which plaintiff did. Plaintiff, however, reserved his right to pursue additional claims against D&R and Anchor Marine, which had attempted repair of the generator and without authorization charged Plaintiffs’ credit card $1,542.99. D&R fixed the generator and re-installed it on the boat, but refused to reimburse the amount that Anchor Marine had charged plaintiffs' credit card. Plaintiffs then filed this complaint against D&R, Anchor Marine, and the individual defendants. Here, the appellate panel reverses the order granting summary judgment to D&R but affirms the dismissal of plaintiffs' complaint against the individual defendants. Although the Consumer Fraud Act can impose liability upon an individual, that individual can only be liable for his/her own affirmative acts or knowing omissions. The panel rejects defendants’ argument that the SCP settlement operated as a dismissal on the merits for purposes of the entire controversy doctrine.

 

20-4-7748 AG v. RR, Chan. Div., Family Part (Thurber, J.S.C.) (15 pp.) AG and RR are the legal parents by adoption of JG-R. AG, the parent of primary residence, seeks to relocate with JG-R to Georgia. The court applies the Baures' factors and concludes that AG has shown a good faith reasons for the request to relocate and that the move will not be harmful to the child, and grants the motion. As part of its analysis, it considers defendant's expressed concern that Georgia, whose law does not appear to permit same-sex couples to adopt a child jointly, will not recognize his parental rights and that conflicts between the laws of Georgia and New Jersey could potentially affect his parental rights adversely. The court concludes that there is no evidence to predict that government, school or medical authorities in Georgia would disregard the legal judgment of adoption and disallow RR's parental rights or to predict that a Georgia court would countenance a disregard of the legal judgment of adoption or any refusal to recognize RR's parental rights, and that RR has a judicial remedy since, by agreement of the parties and by operation of law, New Jersey retains jurisdiction over this matters.  

31-2-7749 Faika v. Saini, App. Div. (per curiam) (12 pp.) In this medical malpractice action, by leave granted, defendants JFK Medical Center, and several individual nurses appeal from an order denying their motion for summary judgment under the burden-shifting analysis adopted in Anderson v. Somberg. Defendants Balwant Saini, M.D. and James Street Anesthesia Associates join the appeal insofar as the court's order was based upon the applicability of Anderson. The appellate panel finds the court was mistaken to find Anderson to be available to plaintiffs as a means for obtaining a verdict against one or more of the defendants because there is inadequate proof that decedent's injury was one that bespoke negligence. Although the experts for Dr. Saini may not have been able to explain the mechanisms that caused decedent's cardiac arrest, the risk of such an event was a reasonably foreseeable risk of the procedure. The loss of the evidence of intraoperative anesthesia records and the code sheet evidence does not affect this outcome. The court erred in declining to grant summary judgment the hospital and the nurses in light of the fact that the experts posited no basis for the nurses’ liability and the hospital’s liability was based on alleged negligence by the nurses.

 

32-3-7750 Vasquez v. Riddell Sports, Inc., Law Div. – Essex Cy. (Vena, J.S.C.) (12 pp.) The instant action arises out of an incident where plaintiff was injured while moving a volleyball pole. Defendants MacGregor Sporting Goods and Riddell Sports, Inc. filed a motion to bar the report of plaintiff’s expert John Tesoriero, as a net opinion, for an order seeking to preclude Mr. Tesoriero from testifying, and for summary judgment dismissing with prejudice all claims against defendants. The court bars Tesoriero’s report and testimony regarding the adequacy of the warning labels and absence of assembly instructions as net opinions with no basis in fact. The court also denies summary judgment to the extent that a material disputed fact still exists; namely whether the labels on the pole were adequate to convey to a user that the pole was correctly inserted or not. Adequacy of a warning label is a question of fact for a jury, and this determination is within the ken of the average juror, such that expert testimony is unnecessary to aid in this determination. Summary judgment is denied, and the case may proceed without plaintiff’s expert report and testimony regarding the adequacy of the warning/instruction.

33-7-7751 Bosnjakovic v. Board Of Trustees Of The Public Employees' Retirement System, App. Div. (per curiam) (9 pp.) Appellant appeals from a final agency determination of the Board of Trustees of the Public Employees' Retirement System that she did not qualify for an ordinary disability pension. Appellant argues that the Board's final administrative determination was arbitrary, capricious, and unreasonable, and not based on substantial credible evidence because it failed to apply the "treating physician" rule. The Board considered the testimony of Dr. Reiter, the treating physician, and Dr. Weiss, who evaluated appellant on behalf of the Board. The evidence shows that, some months after she applied for ordinary disability retirement, appellant underwent surgery and her condition improved from the time she submitted her application. Dr. Weiss's conclusion that appellant was not disabled was supported by a finding that there was no objective evidence to substantiate her subjective complaints. Moreover, Dr. Reiter's earlier conclusion that appellant was totally disabled left open the possibility that her condition could improve to the point where she would not be disabled. The appellate panel finds that it was not arbitrary, capricious, and unreasonable for the Board to decline to rely upon Dr. Reiter's opinion and that the Board's decision was adequately supported by credible evidence in the record.

14-2-7752 State v. Parson, App. Div. (per curiam) (14 pp.) Defendant, who pled guilty to robbery and aggravated manslaughter in connection with a convenience store robbery in which the owner was shot in the chest and later died, appealed his sentence. The appellate panel remanded, finding that defendant's counsel was ineffective for failing to point out, after the court indicated that it was finding aggravating factors one and two based on the victim's being held down and shot in the head, that the autopsy report indicated the victim was shot once in the chest. On remand, the court imposed the same sentence and defendant again appealed. The panel reverses, finding that the court erred in again relying on aggravating factors one and two and in the asserted basis for doing so - that the victim was held down and shot in the "head (chest)" - because the invocation of a scenario that was not supported by the record and constituted a crime (murder) to which defendant had not pled, was improper and because there is no basis in the record for the invocation of those factors other than the death of the victim and that death cannot be used as an aggravating factor in a manslaughter case.   

 

46-7-7753 Thomas v. Cumberland County, Dist. Ct. (Simandle, U.S.D.J.) (18 pp.) Plaintiff’s sole remaining claim in this action is that Defendant Corrections Officer Martinez incited a fight where Plaintiff was injured by other inmates, and/or failed to protect Plaintiff from the other inmates, violating his Fourteenth Amendment due process rights under 42 U.S.C. § 1983. Plaintiff was a pretrial detainee at Cumberland County Correctional Facility at the time of his injuries. Before the Court are three motions in limine filed by Martinez, and one motion in limine filed by Plaintiff. The motions will be granted in part and denied in part. Defendant will be barred from introducing evidence of Plaintiff’s history of drug addiction and methadone treatment and his prior criminal and incarceration history. Defendant will also be barred from introducing testimony from its liability expert. However, Defendant will not be barred from introducing non-hearsay testimony referring to Plaintiff as a thief. Defendant’s motion regarding lay witness opinion testimony of an investigator will be denied. The Court will exclude evidence and testimony by Plaintiff’s expert related to Cumberland County Correctional Facility’s classification of inmates, the scope of discretion of the Warden, any disciplinary sanctions imposed on Defendant Martinez, and payment of Plaintiff’s medical bills. [Filed August 31, 2012]

 

13-7-7754 Allah v. Ricci, Dist. Ct. (Pisano, U.S.D.J.) (5 pp.) Plaintiff's motion for reconsideration of the grant of defendants' motion to dismiss this 42 U.S.C. section 1983 action challenging the conditions of his confinement is denied. The court finds no evidence that it made a clear of error of law in finding that plaintiff failed to exhaust his administrative remedies; it refuses to revisit a motion by the magistrate judge denying plaintiff's motion to amend to sue defendants in the proper capacity made prior to the decision at issue in this motion; and the court rejects plaintiff's claim that it overlooked the extent of his medical conditions and case law regarding deliberate indifference, noting that those arguments were previously presented, or should have been, and that plaintiff's recourse if he disagrees with the court's decision is to file an appeal. [Filed September 21, 2012]

 

17-7-7755 Woodcliff, Inc.v. Jersey Construction, Inc., Dist.Ct. (Pisano, U.S.D.J.) (7 pp.) Plaintiff, Woodcliff Inc. brings this action against Jersey Construction Inc. (“JCI”) and the New Jersey Department of Transportation (“NJDOT”) alleging that, in connection with a road construction project, contaminated soil from NJDOT’s property was transported by JCI to Woodcliff’s property. Two counts in the complaint remain against NJDOT: Count Three alleges liability under the New Jersey Spill Compensation and Control Act (“Spill Act”). Count Four alleges common law trespass. Before the Court is NJDOT’s motion for summary judgment. As to Count Three, NJDOT alleges that it is not liable under the Spill Act because certain exceptions applicable to governmental entities under the Act apply. The record is for the most part limited to a six-paragraph affidavit from an NJDOT employee and a copy of the Developer Agreement. Discovery has not taken place yet. NJDOT has not shown, on the limited record, that it is entitled to summary judgment as to Count Three. As to Count Four, in essence, Plaintiff’s claim is that, although it consented to the delivery of soil to its property, Plaintiff did not consent to the arsenic being discharged on its property. The use of trespass liability for similar scenarios has been held to be an inappropriate theory of liability. NJDOT’s motion for summary judgment is granted as to Count Four. [Filed September 4, 2012]

 

53-7-7756 Astrazeneca AB v. Hanmi USA, Inc., Dist. Ct. (Pisano, U.S.D.J.) (20 pp.) In this Hatch-Waxman patent infringement action, Defendants originally filed five motions seeking summary judgment. Two of the motions, those designated by the parties as Motion No. 1 and Motion No. 5, were previously decided by the Court. This Opinion addresses the remaining three motions. Applying the factors set forth in In re Wands that a court may consider when determining if a disclosure requires undue experimentation, and in light of the claim construction, the Court finds that fact issues preclude summary judgment and denies Defendants’s motion. [Filed August 30, 2012]

 

25-7-7757 Robbins v. U.S. Foodservice, Inc., Dist. Ct. (Simandle, U.S.D.J.) (14 pp.) Plaintiff filed a lawsuit claiming that her termination from her employer, Defendant USF, violated New Jersey’s Law Against Discrimination the Family Medical Leave Act (“FMLA”), and the New Jersey Family Leave Act. She also claimed that she was entitled to punitive damages. Defendant U.S. Foodservice, Inc.’s (“USF”) filed a motion for summary judgment. The primary issue is whether collateral estoppel bars Plaintiff from adjudicating her claims because, before filing this lawsuit, she contested her termination in a union grievance arbitration proceeding. There was a final arbitration decision finding that USF had just cause to discharge Robbins. The Court finds that Plaintiff received a full and fair adjudication of her claims at the arbitration and that her claims are barred by collateral estoppel. The Court grants summary judgment for USF. [Filed August 30, 2012]

50-8-7758 In Re Merck & Co., Inc. Securities, Derivative & “ERISA” Litigation, Dist. Ct. (Chesler, U.S.D.J.) (23 pp.) Defendant Merck & Co., Inc. and various Individual Defendants move for judgment on the pleadings in this Consolidated Fifth Amended Class Action Complaint. Merck, and separately Defendant Scolnick, moved to dismiss a related securities fraud action filed by individual institutional shareholder Stichting Pensioenfonds ABP (“ABP”). The parties agreed to be bound in the ABP action by the rulings the Court made in its prior opinion addressing a motion to dismiss filed by Defendants. Here, Defendants move to dismiss the control person claim against the Individual Defendants on the grounds that the Class Action Complaint fails to plead that these individuals were culpable participants in the alleged fraud. Insofar as the public forward-looking statements are attributed to certain Individual Defendants, they come within the Private Securities Litigation Reform Act’s safe harbor provision because the Court has already held that the Class Action Complaint failed to plead that these defendants acted with the requisite scienter. Plaintiffs failed to plead that the individual defendants were culpable participants in Merck’s alleged § 10(b) violations. Accordingly, the control person claim against these Defendants is dismissed. [Filed August 29, 2012]