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Vol. 4 No. 85 — MAY 3, 1996 STATE COURT CASES ADMINISTRATIVE LAW — HORSE RACING 01-2-8785 N.J. Racing Commission v. Steve Elliot, et al., App. Div. (7 pp.) Racing Commission’s decision imposing fines and suspending trainers’ licenses — based upon the findings that horses under their care had tested positive for the drug “fenspiride” — is affirmed, and the Commission did not act arbitrarily in rejecting administrative law judge’s penalty determinations and meting out more severe sanctions, since the use of a previously undetectable substance, with properties and effects not adequately understood, so compromises the integrity of racing and the health and safety of the animals, as to justify the imposition of severe penalties to inhibit future inclinations to engage in conduct so illicit, hazardous, uncaring and experimental. [Approved for publication May 3, 1996.] INSURANCE — P.I.P. 23-2-8786 Martha Maceda, et al. v. Samuel F. Fortunato, etc., et al., App. Div. (9 pp.) Since plaintiffs have failed to prove that tortfeasor’s insurer adequately complied with statutory proof of mailing requirements, the insurer’s attempt to cancel tortfeasor’s policy was ineffective; therefore plaintiffs did not exhaust their legal remedies before pursuing payment from the Unsatisfied Claim and Judgment Fund Board, and plaintiffs PIP suit against the Fund was properly dismissed. INSURANCE — VERBAL THRESHOLD 23-2-8787 Camishia Y. Madison v. Andrea R. Banks, et al., App. Div. (22 pp.) Plaintiff’s case was correctly dismissed, (1) as to her type 7 and type 8 injuries, since her spasms stopped after approximately five months of physical therapy, and subsequent medical reports indicated only subjective complaints, and, (2) as to her type 3 injury, since, although she submitted objective evidence of facial scarring, the scarring, as observed by the judge, did not rise to the level of “significant disfigurement” required by the statute. PHYSICIAN/PATIENT 29-2-8788 Linda Caballero, et al. v. Gerald D. Hayken, M.D., et al., App. Div. (4 pp.) In medical malpractice case, the court correctly granted summary judgment to the doctor because of plaintiffs’ failure to provide expert reports concerning the doctor’s alleged deviation from acceptable standards of medical practice, since the alleged deviations were not matters of common knowledge. CRIMINAL LAW AND PROCEDURE — DOUBLE JEOPARDY 14-2-8789 State v. Preston B. Handy, App. Div. (6 pp.) Double jeopardy precluded the resurrection of a complaint that had been withdrawn during defendant’s trial in municipal court, and defendant did not waive such preclusion simply because he had agreed to the withdrawal of the complaint by virtue of his provisional settlement with the victim. FEDERAL COURT CASE CORPORATIONS — PARTNERSHIPS — RIGHT TO JURY TRIAL 12-7-8790 Albert F. Esoldi, et al. v. David Esoldi, et al., U.S. Dist. Ct. (25 pp.) In analyzing the many breach of fiduciary duty claims involved in this suit, whether the claims are characterized as derivative in nature, or if the corporations are treated as partnerships, all legal issues still may be tried to a jury, and the plaintiffs’ right to a jury trial will be preserved for all claims in which a money judgment is requested; and this trial will take place before the court determines whether to grant the equitable relief requested. Editor’s Note: In yesterday’s Alert, the word “spouse’s” was inadvertently omitted from the second point in the summary of DDS No. 20-2-8767, Joanne Ribner v. Chester David Ribner; the sentence should read “(2) Wife’s spouse’s income should have been considered in court’s determination of whether support should be modified.” –END– A Daily Reporter of N.J. Court Decisions

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