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NEW JERSEY LAWYER

DAILY BRIEFING 01/10/2005

News Briefs

AG WILL APPEAL DNA RULING
Attorney General Peter C. Harvey has decided to appeal and seek an immediate stay of last month’s Superior Court ruling that held persons convicted of criminal felonies other than serious sex crimes are entitled to have their DNA sample removed from the state’s DNA database and destroyed upon completion of their prison term, parole or probation. Mercer County Judge Jack M. Sabatino issued the ruling in A.A. v. Attorney General. Harvey said, “It is law enforcement’s opinion that the destruction of DNA samples that have been legally obtained is tantamount to destroying fingerprint cards which remain in law enforcement files long after the criminal is released from prison.” 1-7-05

THREE WIN WYETH DIET-DRUG SUIT
A Philadelphia jury has awarded a total $2.5 million to three women who claimed Wyeth Pharmaceuticals’ diet drug Pondimin caused heart damage. The company said it would appeal. The drug, pulled from the market in 1997, is the subject of 63,000 suits filed against the Madison-based drug maker. Pondimin is the fenfluramine in the diet drug fen-phen. 1-7-05

AN EQUINE ALTERNATIVE TO LICENSE PLATES?
Some prison inmates may be getting out of their cells long enough to spend some time in stalls. A bill before the Assembly Law and Public Safety Committee Jan. 10 would establish a “rehabilitative horse care program” within the Department of Corrections. The dual focus would be on the care of retired racehorses and providing inmates possible career training as groomers and caretakers. A-3593 is sponsored by Assemblyman Ronald S. Dancer (R-Ocean), whose district covers much of Central Jersey’s horse country. 1-7-05

AC SAME-SEX MASSAGE LAW UNCONSTITUTIONAL
Attorneys for Atlantic City are urging the city council to go back to the drawing board if they want an ironclad ordinance to keep massage parlors from being fronts for prostitution. During an appeal over the rescinding of a license, Atlantic County Judge William C. Todd III told city representatives their ordinance prohibiting masseurs and masseuses from treating members of the opposite sex is unconstitutional. The judge didn’t get to make a formal ruling because the case was settled, but he did warn city officials it would not pass constitutional muster. 1-7-05

AIM, BEEP AND SHOOT
Camera-shy folks could get some warning if one of those cell phones with built-in cameras is being aimed at them. A bill before the Assembly Telecommunications and Utilities Committee Jan. 10 would ban the sale of any phone so equipped unless it emits an audible warning or bright light that would alert anyone within range that a picture is being taken. The sponsor of A-2664, Assemblyman Anthony Chiappone (D-Hudson), hopes that through such warnings, “notice would be given that a camera is in use and nearby persons could take appropriate measures to protect their privacy.” How such a warning could be discerned from all the other sights and sounds today and what such “appropriate measures” people might take are not spelled out in the bill. 1-7-05

PRO SPORTS BETTING BILL ADVANCING
If the state Assembly’s Appropriations Committee gives the go-ahead Jan. 10, the odds will improve for the possibility of a referendum on allowing betting on professional sports in Atlantic City casinos. A-3493 was already approved by the Tourism and Gaming Committee. The exceptions are amateur and school sports, and, of course, professional wrestling. The bill is sponsored by Assemblyman Jeff Van Drew (D-Cape May). 1-7-05

Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, JANUARY 7, 2005:
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, JANUARY 7, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON MONDAY, JANUARY 10, 2005.

APPROVED FOR PUBLICATION
INSURANCE
CONNELLY v. McVEIGH
Appellate Division, A-1610-03T3, approved for publication January 7, 2005. (17 pages). Facts-on-Call Order No. 92251
Where the underinsured motorist carrier refused its insured’s request for consent to settle his auto negligence case for the tortfeasor’s $100,000 policy limits, where the carrier was ordered to pay its insured $100,000 and thereafter was allowed to inter-vene as a defendant in the trial of its insured’s damages case against the tortfeasor, and where the trial resulted in a no cause verdict for failure to meet the verbal thresh-old, (1) the carrier could not recover the $100,000 it had been ordered to pay as a consequence of its refusal to consent to settlement and (2) that payment was the price of preserving its subrogation rights, regardless of the outcome of the trial.

NOT APPROVED FOR PUBLICATION
INSURANCE
ROSEY’S PIT CLEANING v. CNA INSURANCE CO.
Appellate Division, A-1505-03T5, January 7, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17492
Orders denying the plaintiff’s motion for summary judgment and granting the defendant insurer’s motion for summary judgment in an underinsured motorist coverage dispute affirmed; contrary to the plaintiff’s arguments, the step-down clause contained in the policy issued by the defendant was not ambiguous and did not violate public policy; it was clear that the only “named insured” under the policy issued by the defendant was the business entity in which the plaintiff was a partner; because the plaintiff was an “insured” under the policy issued by the defendant and a “named insured” under another automobile liability policy, the UIM coverage afforded under the policy issued by the defendant was stepped down to the limit of the UIM coverage under the other policy.

ATTORNEYS
MARKOVIC v. WOLFF & SAMSON
Appellate Division, A-4401-02T2, January 7, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 17488
Dismissal of the plaintiffs’ amended complaint affirmed and denial of the defendant’s application for sanctions under Rule 1:4-8 reversed and remanded; the defendant law firm represented the surety that issued bonds on behalf of the plaintiff corporation and its sole shareholder and officers; the plaintiffs alleged that the defendants had made misrepresentations in an earlier litigation that resulted in the entry of money judgments, including attorney’s fees, against them; contrary to the plaintiffs’ argument on appeal, the trial court properly dismissed their complaint based on the litigation privi-lege and the statute of limitations; remand of the defendant’s application for sanctions was necessary because it was denied without a satisfactory statement of reasons.

WORKERS’ COMPENSATION
SCHULTZ v. BOARD OF EDUCATION OF CALDWELL
Appellate Division, A-2894-03T3, January 7, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 17491
Summary judgment dismissing with prejudice the plaintiff teacher’s complaint in a personal injury action against the defendant employer affirmed; the plaintiff sustained injuries to her wrist when the glass door on a display case shattered as she attempted to open it; the plaintiff presented evidence that the defendant was aware that the display case was potentially dangerous before her accident; the trial court properly determined that the plaintiff had established “nothing more” than evidence that the defendant was negligent, which was not sufficient to overcome the exclusivity bar of the Workers’ Compensation Law, N.J.S.A. 34:15-8.

MEDICAL MALPRACTICE
FARRELL v. MORRISTOWN MEMORIAL HOSPITAL
Appellate Division, A-5840-02T1, January 7, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 17490
Judgment against the defendant hospital after a jury trial in a medical malpractice action and the denial of the hospital’s motion for a new trial or for judgment n.o.v. reversed; the plaintiff was seriously injured in an automobile accident, was admitted to the defendant hospital, and was released after 10 days with an untreated displaced thoracic spine fracture; after summary judgment for two of the defendant doctors and settlement with the rest, the hospital was the only defendant remaining at the time of trial; it was error for the trial court to admit the testimony of the plaintiff’s medical expert that the radiologist who read the plaintiff’s chest X-ray was an employee of the hospital when the witness had no knowledge of that fact; it also was error for the trial court to allow the jury to decide whether the hospital was liable for the acts of the radiologist under a theory of apparent authority.

PREMISES LIABILITY
DRAGAN v. MOUNTAINSIDE HOSPITAL
Appellate Division, A-4390-02T3, January 7, 2005, not approved for publication. (21 pages). Facts-on-Call Order No. 17493
Order denying the defendant hospital’s motion for judgment notwithstanding the verdict, for a new trial, and for remittitur and a judgment for the plaintiff based on the jury’s finding that the defendant was 90 percent responsible for the plaintiff’s fall on a handicap or curb ramp on the defendant’s premises affirmed; contrary to the defendant’s arguments on appeal, (1) the plaintiff presented sufficient evidence that the defendant’s negligence was the proximate cause of her fall and that the fall was the proximate cause of her knee surgeries, (2) there was no abuse of discretion in the admission of the testimony of the plaintiff’s expert or in his reference to Department of Transportation standards, and (3) the jury should not have been instructed that the defendant could reasonably rely on the fact that it had retained a contractor to do the ramp construction and on the municipality’s approval of the work that was performed.

HUSBAND AND WIFE
MITCHELL v. MITCHELL
Appellate Division, A-1379-03T3, January 7, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 17494
Final judgment of divorce affirmed in part and reversed and remanded in part; in making its “otherwise unassailable” equitable distribution ruling, the Family Part had generally disregarded the plaintiff ex-husband’s testimony; remand was necessary (1) on the issue of equitable distribution because the defendant ex-wife “appeared to concede” at oral argument in the Appellate Division that the plaintiff’s testimony about his payment of pre-existing marital debt with marital assets was true and (2) on the issue of child support to determine the extent of the plaintiff’s contributions toward the college expenses of the parties’ oldest daughter; the remainder of the Family Part’s findings were supported by the record.

EXPUNGEMENT
STATE v. FARWELL
Appellate Division, A-4105-03T3, January 7, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 17489
Law Division order denying the defendant’s petition to expunge two indictable convictions affirmed; the defendant was arrested for possession of a BB-gun for an unlawful purpose on March 22, 1989 and was later indicted; while that charge was pending, he was arrested for distribution of marijuana on July 6; he negotiated a plea to both charges on July 27, and the State dismissed the pending indictment; expungement was not available under N.J.S.A. 2C:52-2a because, even though the convictions occurred on the same date, the crimes were committed on different dates, and the ex-pungement remedy is not available to one who has been convicted of separate crimes committed on separate dates.

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