Appellate Blog

Snow and Ice Cases: A Slippery Slope

By: Sherry L. Foley, Esq.

Snow and ice cases garner many appeals.  On summary judgment at the trial court level, commercial landowners frequently argue successfully that they owe no duty to an injured plaintiff who fell on snow and ice outside their property until a reasonable time after the termination of a “continuing snow event.” Recently, an Appellate Division case, Dixon v H.C. Equities Associates LP, upheld a trial court’s grant of summary judgment to defendants on that very basis, finding that it was well-settled that New Jersey property owners were not liable for clearing snow during a snowstorm.  A Petition for Certification to the New Jersey Supreme Court was denied, but Justice Albin’s dissent regarding the denial of that Petition makes clear that the law is far from settled regarding a commercial landowner’s duty to the public during a “continuing snow event.”

Noting that the Appellate Division was mistaken in its finding that the New Jersey Supreme Court had spoken to this issue, Justice Albin unequivocally stated that the Dixon case was at least the third unpublished Appellate Division decision to misconstrue the Supreme Court’s holdings in Qian, Mirza and Bodine.  Not one of those cases, according to Justice Albin, supports the proposition that a commercial landowner has no duty to make any effort to clear its walkways until a reasonable time after sleet or snow stops falling.  Justice Albin then reviewed the majority and minority views taken by other jurisdictions when deciding that issue.

The majority rule is that a commercial landowner owes no duty to remove snow or ice until a reasonable time after the precipitation ends.  The minority rule is that a commercial landowner has a duty to take reasonable steps to render a walkway — covered by snow or ice — reasonably safe for its invitees, considering all of the circumstances, even when precipitation is still falling, with the ultimate question of liability to be decided by the jury.  In fact, while not cited by Justice Albin, there is an unpublished opinion of the Appellate Division that followed the minority rule in making its determination in a snow and ice case.

Scott v. Mercer County Improvement Authority, Docket No. A-3392-17 (App. Div. April 10, 2019), dealt with the dismissal on summary judgment of plaintiff’s slip and fall on snow and ice claim.  In Scott, the plaintiff’s fell during a snowstorm while he was leaving a concert at the Sun Bank National Arena (“the Arena”) promoted by defendant.

The appellate panel found that there was a genuine factual dispute whether reasonable steps were taken to remove snow and ice and reversed the trial court’s grant of summary judgment.  The Scott court stated: “A jury should consider whether defendants made reasonable efforts to shovel, salt, or sand the area where plaintiff slipped and fell, or otherwise arrange for such precautions, to provide safe passage for plaintiff from the Arena to his car.  A jury should consider all relevant circumstances, which may include: [T]he extent and timing of the snowfall, the time of day or night, the nature of the efforts actually taken . . . to maintain the premises, the practicality of cleaning up in stages or by priorities, the plaintiff’s care for his own safety including his foot wear, . . . and any other pertinent factors.  Id. at 8-9 (citing Moore v. Schering Plough, Inc., 328 N.J. Super. 300, 307 (App. Div. 2000).

At the end of his dissent, Justice Albin stressed that “despite the denial of certification, the Appellate Division — in an appropriate case — may revisit the erroneous use of our precedents and address the issue anew in light of the competing rationales presented by cases in other jurisdictions.”    In this writer’s opinion, the minority view, as adopted in Scott, is the better-reasoned and fairer approach to snow and ice cases and is more in line with New Jersey jurisprudence.  One can only hope that in a future appropriate setting, the Appellate Division will feel the same way

Accutane Mass Tort Could Run Out of Gas After Panel Scraps Expert Testimony

By: Sherry L. Foley, Esq.

On January 17th, 2020, a New Jersey appeals court barred testimony from two experts linking the drug Accutane with persistent claims that the drug encourages ulcerative colitis.  The Appellate Division upheld Superior Court Judge Nelson Johnson’s ruling excluding the expert opinions from gastroenterologist David Sachar and epidemiologist April Zambelli-Weiner.  The panel found that those expert opinions, which also linked Accutane to Crohn’s Disease, suffered from the same issues and defects identified and rejected by the New Jersey Supreme Court in 2018.

Judge Johnson proceeded to dismiss 3,231 suits based on his elimination of the expert testimony relating to ulcerative colitis.  The court dismissed an additional 2,100 cases based on barring the plaintiffs’ additional report on Crohn’s disease.  In October of 2018, a second Supreme Court decision found that Accutane’s labeling complied with Federal Drug Administration (FDA) rules when it added a warning that the drug was “associated with inflammatory bowel disease” and led to the dismissal of 532 additional cases. 

Appellate Division Judges Clarkson Fisher Jr., Allison Accurso and Lisa Rose agreed that Judge Johnson’s decision to exclude the experts was both correct and not an abuse of discretion.  The rulings could potentially bring an end to the lengthy, 17-year Accutane litigation. 

The appeals court concluded that Sachar relied heavily on nonepidemiological evidence and failed to apply reliable methodology from experts in the field. Zambelli-Weiner’s analysis of other studies found a drastically different yet statistically accurate association between Accutane and ulcerative colitis –– but failed to include all related studies. 

The appeals court reasoned that “[w]e find little to distinguish between the record here concerning the proffered expert testimony of Drs. Sachar and Zambelli-Weiner, and the record that led the Supreme Court to reinstate the trial judge’s exclusion of the expert testimony of Drs. Kornbluth and Madigan.” According to the Appellate Division, the “trial judge did not abuse his discretion in barring the expert testimony in question. Instead, he engaged in the very same type of gatekeeping which the Supreme Court approved in its prior decision.”

No Standing for Kids in Climate Case, 9th Circuit Says

By: Sherry L. Foley, Esq.

On Friday, January 17, 2020, the Ninth Circuit Court of Appeals announced in a split decision that the courts could not fix the existing climate-impacting policies already put in place by the federal government, despite a group of children’s substantial claims that their future is endangered by the federal government’s failure to act to curb climate change.  The panel majority in Juliana v. United States reasoned that the legislative and executive branches are the only venues with authority to redress the injury claims made by the group of children.

The overwhelming majority of the children presented significant, compelling evidence regarding their injuries.  The injury declarations ranged from being forced to move due to a lack of drinking water to needing to evacuate due to coastal flooding.  Despite the judges’ recognition that the government’s policies were a “substantial factor” in the alleged injuries, they drew the line at whether the court could provide relief.

When commenting on the decision, Ninth Circuit Judges Mary H. Murguia and Andrew D. Hurwitz stated that “There is much to recommend the adoption of a comprehensive scheme to decrease fossil fuel emissions and combat climate change, both as a policy matter in general and a matter of national survival in particular.” Both judges added that even if a court were to “completely void” existing federal policies, it would still not be a substantial argument to help the children.

Dissenting from the decision, U.S. District Judge Josephine L. Staton of the Central District of California, argued that she would have preferred to see the case proceed. Staton expressed that “Such relief, much like the desegregation orders and statewide prison injunctions the Supreme Court has sanctioned, would vindicate plaintiffs’ constitutional rights without exceeding the judiciary’s province.” The appeal originates from Oregon, where U.S. District Judge Ann Aiken’s decision denied the federal government’s motion to dismiss the case in October 2018.  Aiken concluded that the case should definitely go to trial, holding that the plaintiffs had a firm basis and standing to sue, including allegation of a violation of Fifth Amendment due process rights. 

Judges Hurwitz and Murguia supported their opinion with reference to reasoning about constitutional questions from the U.S. Supreme Court’s June decision in Rucho v. Common Cause. That divided Court case held that partisan gerrymandering is “beyond the reach of the federal courts.” Despite ruling against the plaintiffs, the majority sympathized with and understood the children’s reasoning for taking the case to trial. The court went so far as to state that “climate change is occurring, that the government has had a role in causing it, and that our elected officials have a moral responsibility to seek solutions.”

Julia Olson, director and chief legal counsel of Our Children’s Trust and co-counsel for the youth plaintiffs, stated that the children would be asking the Ninth Circuit for an en banc review.  Olson noted that climate change is “exponentially increasing.”  She elaborated that, “The standard is a question of science that should be determined at trial. The majority opinion ignores the fact that we have yet to go to trial on the issue of redressability.”

Assistant Attorney General Jeffrey Bossert Clark of the U.S. Department of Justice Environment and Natural Resources Division contended that he was pleased with the court’s decision.  Clark remarked in a statement: “As the court recognized, Article III of the Constitution’s standing requirement is a vital limitation on the power of the federal courts, and this suit fell squarely outside the parameters of Article III.”

NFL Concussion Dispute Is Partially Revived by 3rd Circuit

By: Sherry L. Foley, Esq.

On April 26, 2019, the Third Circuit Court of Appeals ruled that a federal judge from Pennsylvania overstepped her bounds when annulling all cash advance agreements between class members in the NFL’s 2015 concussion suit.   The appeals court found that although U.S. District Judge Anita B. Brody had the ability to rule over agreements regarding RD Legal Funding LLC, Atlas Legal Funding LLC and Thrivest Specialty Funding LLC and players in the class, the settlement voids agreements only if members turned over their claims against the NFL.

Earlier this winter, the Third Circuit was urged by the funding companies to collect the funds from class members only if they had received funds from the claim’s administrator. Judge Brody’s order was then reversed. In 2015, the class settlement was approved and resolved claims by NFL players who had claimed they suffered brain damage tied to their playing days. Upwards of $611.4 million claims have been awarded, according to a recent summary report.

Following the appeal in which Judge Brody ruled that anti-assignment clauses in any concussion settlements extended to settlement proceeds, over a thousand third-party litigation funding agreements regarding the players and the companies were voided. The companies argued that Brody’s order did not conclude in any substantial facts or evidence regarding any particular unconscionable practice of the companies. Additionally, the panel concluded that Brody went beyond her authority in stating all agreements were null in their entirety, being that she could have invalidated only parts of the agreements.

In conclusion, these actions are considered an undeniable win for former NFL players who were aggressively targeted by funding companies. “The Third Circuit’s ruling is a significant win for former NFL players who were targeted by predatory funding companies,” said Christopher A. Seeger of Seeger Weiss LLP.  Following the turn of events, the ultimate goal is to help the players receive the representation and compensation they deserve.

Philadelphia Jury Hits J&J With $120M Pelvic Mesh Verdict

By: Sherry L. Foley, Esq.

Recently, a Philadelphia court slammed a Johnson & Johnson subsidiary with a $120 million verdict for failing to warn consumers about the dangers of its pelvic mesh products. The verdict was handed down on April 24th after multiple weeks of trial. It is comprised of $20 million in compensatory damages and $100 million in punitive damages.

The case stems from an injury to Susan McFarland, 68 years old, of Altoona, Pennsylvania. McFarland had a pelvic mesh product implanted in 2008 for a urinary incontinence problem. McFarland claimed that after the product was implanted, the plastic eroded, causing chronic uterine tract infections that made her condition worse than before the product was implanted.

The verdict comes as a triumphant victory for McFarland, as the pelvic mesh product is still on the market and putting many more women’s lives at risk.  When asked about the outcome of the case, a spokesperson for Ethicon said the award was “inconsistent with the science, Ethicon’s actions, and previous verdicts related to our TVT-O product, which continues to be the gold standard of treatment for stress urinary incontinence.”

This recent verdict is only one of many multi-million-dollar verdicts that Philadelphia juries have awarded in pelvic mesh litigations. The increasing efforts to have the product removed from the market continue to evolve as the number of serious cases grows.

Two Judges Temporarily Assigned to Appellate Division

By: Sherry L. Foley, Esq.

Superior Court Judges Ronald Susswein and Catherine I. Enright have been assigned to serve temporarily on the Appellate Division from April 15, 2019, through June 23, 2019.  Judge Susswein will join Part F. He is currently assigned to the Civil Division in Mercer County and will continue with that assignment in addition to his new duties. Judge Susswein is a former Assistant Attorney General before being appointed to the bench in 2016 by Governor Chris Christie. Judge Enright will join Part A. She is currently assigned to the Criminal Division in Morris County and will continue with that assignment in addition to her new duties. Judge Enright was appointed to the bench in 2009 by Governor Jon Corzine. She was graduated from Seton Hall University and Villanova University Law School.

Expert Testimony Unnecessary to Prove Pecuniary Loss in Wrongful Death Action

By: Sherry L. Foley, Esq.

The Appellate Division in Dutton v. Rando , A-1049-16T1, (February 26, 2019), recently opined that expert testimony was not required to prove pecuniary loss in a wrongful death case.  The appeal arose from a tragic highway collision in which defendant ‘s sports utility vehicle fatally struck plaintiff’s  19 year old son as he was riding his bicycle. Following a trial, the jury found that defendant was sixty percent responsible for the accident while the decedent was responsible for the remaining forty percent. The jury awarded plaintiff, representing her son’s estate, $500,000 in wrongful death damages and $108,000 in survivorship damages. The trial court entered judgment in the molded sum of $364,800 in damages and additional interest, fees, and costs.

Defendant appeals from the judgment entered on the verdict and from the trial court’s order denying his motion for a new trial.  Defendant contends, among other things, that the jury’s award of wrongful death damages is unsupported by the evidence and that expert testimony is required to prove the pecuniary value of the loss of decedent’s advice, guidance, and companionship. The appellate court rejected defendant’s contention and reaffirmed the long-standing principle, found in Lesniak v. County of Bergen, 117 N.J. 12, 32-33 (1989), that expert testimony is not required to establish the pecuniary value of such services in wrongful death actions. The holding is consistent with the common law in the fourteen other jurisdictions that, like New Jersey, restrict recovery in wrongful death actions to pecuniary loss, but do not require expert testimony to prove damages.

“Private” Information on Facebook Is Discoverable.

By: Sherry L. Foley, Esq.

In Forman v Henkin, the New York Court of Appeals, the State’s highest court, ruled that privacy settings in Facebook do not protect your clients from legitimate discovery requests. In a unanimous decision, the Court of Appeals reversed the appellate court and reinstated a trial judge’s ruling requiring the plaintiff, who alleged she was disabled in a horse-riding accident, to turn over to defendant horse owner photos and other information posted under Facebook’s privacy settings, before and after her injuries. Noting the controversy over what information on Facebook deserves privacy protection, the Chief Judge wrote that it is appropriate to require disclosure of materials that are “reasonably calculated” to contain “material and necessary” evidence. In other words, discovery rules trump privacy settings on Facebook.

Plaintiff testified in her deposition that she became a recluse after suffering a spinal injury and brain damage due to defendant’s negligence. She stated that she would post a lot on Facebook about her active lifestyle prior to her accident but deleted her Facebook account six months after the accident. She also stated she had trouble with computers and composing coherent messages now. She testified that a simple email could take her hours to write because she had to go over it repeatedly to make sure it made sense.

Defendant sought access to plaintiff’s entire “private” Facebook account contending that the photos and information posted would be material and necessary to his defense.  He argued that plaintiff’s claims of inability to do certain activities resulting from the accident would be borne out by her postings or would not.  He also contended that her messages were relevant to test her credibility regarding her difficulties using the computer and composing emails.  Plaintiff argued that defendant had shown no basis for viewing her “private” posts because her public posts did not provide such a basis.

The trial judge ordered the plaintiff to disclose to defendant pre-accident photos she intended to use at trial, post-accident photos not depicting nudity or romantic encounters, and access to post-accident records showing each time plaintiff posted a private message after the accident and the number of characters or words in the messages. The trial judge stopped short of ordering disclosure of the contents of her messages even though the defendant had asked for that information as well.

Plaintiff appealed. Notably, defendant did not appeal or cross-appeal, and so the issue of whether the content of the messages should be disclosed was not before the court. The appellate court limited the disclosure to photos intended for trial, whether posted before or after the accident. Two justices dissented concluding defendant was entitled to broader discovery. The appellate division granted defendant leave to appeal to the Court of Appeals to decide whether its Order was properly made.

The Court of Appeals reversed and reinstated the trial judge’s ruling, agreeing with defendant that the appeals court erred in employing a “heightened threshold” for disclosing social-media records that depended on what users chose to share publicly. The Court of Appeals found that even if materials on Facebook could be characterized as private, that would not preclude disclosure because private materials may be subject to discovery if they are relevant. “While Facebook – and sites like it – offer relatively new means of sharing information with others, there is nothing so novel about Facebook materials that preclude application of New York’s long-standing disclosure rules to resolve this dispute.”

Attorneys should caution their clients to suspend their Facebook accounts after they have an accident because private or not, their posts still may be discoverable. The decision suggests that discovery of social media posts turns not on privacy settings but rather on relevance and long-standing discovery rules. Clients and attorneys should be aware that discovery rules long have been very liberal and that broad disclosure will apply to new forms of media regardless of self-imposed “privacy” settings.

Wave Goodbye to That Waiver

By: Sherry L. Foley, Esq.

The New Jersey Supreme Court in Philip Vitale v. Schering-Plough Corporation (A-20-16) (078294), decided December 11, 2017, makes clear that employees who sign waivers of third-party liability as part of their Employment Agreement will not be bound by that waiver. Mr. Vitale was hired as a security guard by a company that furnishes those services to other companies.

While working at Schering Plough, one of those other companies, he fell down the steps and injured himself. Besides making a workers compensation claim against his employer, he filed a third-party suit against Schering Plough. Schering-Plough moved for summary judgment arguing that the pre-accident waiver contained in the Employment Agreement shielded them from liability. The trial court, the appellate division and the Supreme Court all concluded that the agreement was contrary to public policy and not enforceable.

The New Jersey Supreme Court found Sections 39 and 40 of the Workers’ Compensation Act state the public policy governing the appeal. Under section 40, the court held that the Act does not bar or limit common-law premises liability claims against potentially liable third parties. Rather, it provides for a lien on an employee’s recovery that may ameliorate the financial burden of a compensation award on the employer’s workers’ compensation carrier. N.J.S.A. 34:15-40(b) and (f). To balance the interests of the employee, the employer, the workers’ compensation carrier and any potentially liable third party properly, the court opined that the Legislature provided in section 39 that any pre-accident “agreement, composition or release of damages” is contrary to public policy. N.J.S.A. 34:15-39.

Loose Lips Sink Settlements or Why You Should Avoid Confidentiality Provisions

By: Sherry L. Foley, Esq.

No plaintiff ever asks for a Confidentiality Provision to be part of their settlement agreement. That is a defense-driven device that could cost plaintiffs their settlements. Case in point —Gulliver Schools, Inc. et, al. v. Patrick Snay, Third DCA Florida (February 26, 2014).

In that case, Snay had been a Headmaster at Gulliver Schools, which Snay’s daughter attended. When his contract was not renewed, he filed a two-count Complaint sounding in age discrimination and retaliation. The parties settled the case on November 3, 2011, and executed a Settlement Agreement that provided, inter alia, for a payment to Snay in the amount of $80,000.00. It also included a Confidentiality Provision that stated in pertinent part as follows:

13. Confidentiality. . . [T]he plaintiff shall not either directly or indirectly, disclose, discuss or communicate to any entity or person, except his attorneys or other professional advisors or spouse any information whatsoever regarding the existence or terms of this Agreement… A breach… will result in disgorgement of the Plaintiff’s portion of the settlement Payments.

On November 7, 2011, four short days after settlement agreement execution and before the settlement funds were received, Gulliver notified Snay that he was in breach of the settlement agreement based on the following Facebook post by his daughter:

Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.

The post went out to approximately 1200 of the daughter’s Facebook friends. Gulliver then refused to pay the $80,000.00 based on the confidentiality breach. Snay filed a Motion to Enforce the Settlement in the trial court, which was granted. Gulliver appealed, and the appeals court reversed the trial court.

Using basic contract interpretation principles, the appeals court found as a matter of law that the Confidentiality Provision had been breached when the Snays told their daughter about the settlement.

What are the lessons to be learned from this case besides banning your children from social media? Do not agree to a Confidentiality Provision if at all possible. If that is not possible, make the consideration for that provision separate and apart from the underlying settlement. Make the provision as narrow as possible, i.e., make defendants spell out exactly who cannot be told what or what specifically can be said. Make the exceptions as broad as possible, i.e., family, financial consultants, and institutions.

Be mindful as well that a Confidentiality Provision can come into play if you or your clients are seeking financing, based on the settlement. Make sure that disclosure for financial reasons is also exempted from the provision.

Blindly accepting Confidentiality Provisions insisted on by defendants can be costly to you and your clients. Just ask the Snays!

Law of the Case Is Limited: Second Judge Not Required to Defer to Decision of Prior Judge in the Same Case.

By: Sherry L. Foley, Esq.

In Kim Glucker v. Robert Barbalinardo, M.D., DOCKET NO. A-3567-15T2 (App. Div. September 26, 2017), the Appellate Division made clear that a judge deciding whether the good-faith standard of the waiver provision of the Patients First Act is satisfied must focus on the effort the moving party made to locate a statutorily-authorized expert and not the reasons why a particular expert or experts declined to execute an Affidavit of Merit (“AOM”). In making that determination, the court also made clear that the law of the case doctrine does not apply when the initial judge’s ruling is clearly erroneous.

The Patients First Act established the requirement in medical malpractice cases that a plaintiff must have an AOM from an expert that is equivalently-qualified to the defendant. The Act includes a waiver provision from that requirement where “the moving party has demonstrated to the satisfaction of the court that a good faith effort has been made to identify an expert in the same specialty or subspecialty, the court determines that the expert possesses sufficient training, experience, and knowledge to provide the testimony as a result of active involvement in, or full-time teaching of, medicine in the applicable area of practice or a related field of medicine.” N.J.S.A. 2A:53A-41(c). In Glucker, plaintiffs had initially gotten an expert equivalently-qualified to the defendant. That expert dropped out of the case because of illness. Defendants moved for summary judgment because of the lack of such an expert, and plaintiffs cross-moved for waiver. Plaintiffs’ efforts to find a similarly-credentialed expert were detailed in counsel’s certification to the court. The trial court was more concerned with the reasons why the proposed experts would not provide an AOM than the effort made by plaintiff to find such an expert. After receiving more time to designate an appropriate expert, the plaintiffs stated again that they were unable to do so and requested a waiver. The trial judge denied their motion for a waiver.

Defendants then moved again for summary judgment, and the plaintiffs cross-moved for a waiver. Those motions were heard by a second judge. The second judge found plaintiffs’ efforts sufficient to support a waiver but refused to grant the waiver because the second judge believed that the first judge’s decision constituted law of the case and that he was bound by that decision. Summary judgment was granted, and the appeal followed.

In discussing the law of the case doctrine, the Appellate Division emphasized that the doctrine was discretionary, not mandatory. A second judge is not bound by the first judge’s decision where “there is substantially different evidence” from that available at the time of the prior decision, “new controlling authority, or the prior decision was clearly erroneous.” Sisler v. Gannett Co., 222 N.J. Super. 153, 159 (App. Div. 1987), certif. denied, 110 N.J. 304 (1988). The rule is discretionary, and the doctrine is to be “applied flexibly to serve the interests of justice.” State v. Reldan, 100 N.J. 187, 205 (1985). Finding that the initial judge’s determination was clearly erroneous, the court found the second judge erred in applying the law of the case doctrine. The moral of this story: If at first, you do not succeed, try again.

Insurer Bad Faith Complaint Upheld on Appeal.

By: Sherry L. Foley, Esq.

 A recent unpublished appeals court decision in Raymond C. Ellington v. Cure Auto Insurance Co., Superior Court of New Jersey, Appellate Division, Docket No. A-2470-16T4 (July 20, 2017), upheld a trial court decision denying the insurer’s motion to dismiss the bad faith claim filed against it. The appellate court, employing a plenary standard of review, agreed that the Complaint stated a cause of action against CURE for bad faith. Because the interlocutory appeal was from a denied Motion to Dismiss, the factual allegations of the Complaint were taken as true and construed liberally. CURE argued that the trial court had created new law by allowing a bad faith cause of action against an insurer where there was no excess verdict or an improper disclaimer of coverage. The appellate court found, based on New Jersey law, that a bad faith cause of action can be based on a settlement where the insurer has not consented.

The underlying facts as relayed in the Complaint are instructive. Ten months after filing the underlying personal injury action, plaintiff’s counsel sent a letter to CURE detailing the four plaintiffs’ injuries and supplying medical records showing that plaintiffs’ claims far exceeded defendant’s coverage of $25,000.00 per person and $50,000.00 per accident. The letter gave the insurer 30 days to tender the policy, which plaintiffs would accept in full and final settlement of the matter. Otherwise, plaintiffs would prepare for trial and not accept the policy limits at a later date. Eleven months later, CURE tendered the policy limits. Plaintiffs rejected the belated tender and proposed that they would accept the policy limits along with an assignment of the insured’s claims against CURE for breach of its fiduciary obligations to the insured. CURE rejected the counteroffer, stating that no settlement offer including the right to pursue claims against it would be entertained. Four days later, the policy limits were paid into court. Thereafter, plaintiffs’ claims were arbitrated with a finding that plaintiffs were entitled to $1,300,000. At a settlement conference some eighteen months after the initial settlement demand, defendant insured’s counsel stated that CURE had withdrawn its objections. That was too little, too late for plaintiffs. They were unwilling to settle without entering judgment against the defendant insured. Thereafter, a settlement was entered into wherein plaintiffs were to receive prompt payment of the policy limits, an assignment of the insured’s rights against the insurer for breach of fiduciary duty and the entry of a judgment against the insured in the cumulative amount of $1,155,000. According to the Complaint, the judgment was the result of the insurer’s bad faith handling of the matter.

Citing to Fireman’s Fund Ins. Co. v. Security Ins. Co. of Hartford, 72 N.J. 63, 69 (1976), the court found an insurer’s fiduciary duty requires it “to make an honest, intelligent and good faith evaluation of the case for settlement purposes and to weigh the probabilities in a fair manner.” In that case, the Court rejected the insured’s argument (strikingly similar to the argument at bar) that there could be no recovery where there was a settlement, not a judgment, and the insurer did not consent. Citing to the implied covenant of good faith and fair dealing, the court in Fireman’s Fund noted: “That [the insurer’s] breach was not of its expressed covenant to afford its insureds a defense but rather of its implied covenant to exercise good faith in considering an offer to settle for an amount in excess of its policy limits is of no moment.” Id. at 72-73. “[T]he measure of the insured’s damages is eitherthe amount of the judgment entered against the insured in the negligence action or the amount paid by the insured in making a reasonable good faith settlement of the negligence action before trial.” Ibid. The appellate court concluded that the allegations of the complaint and the fiduciary duties of the insurer were sufficient to sustain a Complaint for bad faith, at the pleading stage. “Construing the complaint with liberality, it clearly alleges facts and circumstances demonstrating CURE did not take the initiative and attempt to negotiate a settlement within its policy coverage. To the contrary, the complaint alleges CURE disregarded an opportunity to explore settlement within its policy limits and then waited nearly eleven months – long after it knew the personal injury plaintiffs would no longer accept the policy limits to settle – before following up with them or tendering the policy limits.” Slip Op. at 17. Those allegations were sufficient to state a claim for bad faith. Further, the complaint alleged that the value of the plaintiffs’ claims far exceeded the policy limits, a fact known to the insurer long before it tendered its policy limits.

The court took great pains to underscore the “limited” nature of its holding. “We have concluded we can glean a bad faith cause of action from the complaint; nothing more.” Slip Op. at 18. The arguments advanced by CURE and amicus Insurance Council, according to the court, “blurred the distinction between the standards for determining, on the one hand, whether pleadings state a cause of action upon which relief can be granted, and, on the other hand, whether summary judgment is appropriate.” Slip op. at 18. The claims that the insured failed to comply with policy conditions were outside of the record and not raised before the trial court. They could not be considered by the reviewing court. Similarly, the allegations of collusion, also not raised before the trial court, were not properly before the reviewing court.

The court concluded with a telling aside. It referenced the settlement agreement and how one of its provisions may be read as letting the insured off the hook whether or not the bad faith claim is successful. If that is true, it may have a bearing on the viability of the bad faith cause of action under a “no harm, no foul” rationale. The court suggested that the trial court conduct discovery and allow dispositive motions on that issue before allowing extensive discovery. Plaintiffs may have won a battle but, because of the drafting of the settlement agreement, they could lose the war. Stay tuned!

CEPA Does Not Apply to Actions Against the Port Authority.

By: Sherry L. Foley, Esq.

On March 15, 2017, the Appellate Division of the Superior Court of New Jersey, in Sullivan v. The Port Authority of New York and New Jersey, et al., A-3506-14T1 (App. Div. March 15, 2017), decided that the New Jersey Conscientious Employee Protection Act (“CEPA”) did not apply to an action against the bi-state Port Authority. The court affirmed a grant of summary judgment to the defendants in the case. First, it should be noted that the plaintiff did not seem to put up much of a fight. He failed to provide any opposing affidavits or evidence, choosing instead to rely solely on the unverified allegations of his Complaint. Rule 4:46-5(a) prohibits an adverse party from relying on the mere allegations of his pleading to oppose summary judgment. Plaintiff chose that same losing strategy on appeal. That ignorance of the Court rules certainly did not help his cause.

Plaintiff tendered his resignation and retired from the Port Authority in 2012 prior to disciplinary proceedings being initiated against him. In August 2012, a notice of claim was served on the Port Authority, alleging violations of the New York Whistleblower Law (NYWL), N.Y. Lab. Law § 740, and the New York Civil Service Law. N.Y. Civ. Serv. Law § 75(b). In May 2013, plaintiff filed a complaint against defendants in the Superior Court of New Jersey. He alleged retaliation and civil conspiracy in violation of CEPA. Plaintiff sought injunctive relief in the form of reinstatement and damages. Following the completion of discovery, defendants moved for summary judgment. Defendants successfully argued that the Port Authority is not subject to CEPA because it is a bi-state agency created pursuant to an interstate compact and did not expressly or impliedly consent to suit pursuant to this single-state legislation. Defendants argued that because the NYWL is not complementary or parallel to CEPA, the lack of uniformity between the 2 states’ laws barred enforcement.

On appeal, plaintiff improperly raised arguments in footnotes, which were ignored, and tried to raise arguments for the first time on appeal, which also were ignored. The Appellate Division focused on the history of the New York/New Jersey entity and the compact that created that entity. Until 1951, the Port Authority was immune from suit. When it waived sovereign immunity in 1951, the compact was amended to provide “consent to suits, actions, or proceedings of any form or nature at law, in equity or otherwise.” N.J.S.A. 32:1-157; N.Y. Unconsol. Laws § 7101. Id. at 9. The two states also enacted a more specific consent to suit provision for tortuous acts by the Port Authority or its agents. N.J.S.A. 32:1-162; N.Y. Unconsol. Laws § 7106. The compact, however, expressly prohibits unilateral action by one state without the concurrence of the legislature of the other state. N.J.S.A. 32:1-8; N.Y. Unconsol. Laws § 6408. That prohibition was the beginning of the end for plaintiff’s CEPA suit.

Finding that the laws of one state cannot be unilaterally enforced against the Port Authority without the other state’s consent, and finding there is no such express consent at bar, the court analyzes whether there is “complementary or parallel state legislation.” Id. at 11. In other words, if New Jersey’s CEPA law is substantially similar to New York’s Whistleblower law, the action can proceed. Unfortunately for plaintiff, that is not what the court found. Although they both have a one year statute of limitations, there are more core dissimilarities. The NYWL requires there be a “substantial threat to public safety.” Id. at 13. CEPA does not. CEPA allows punitive damages, but the NYWL does not. CEPA also provides for a trial by jury, which the NYWL does not. Those differences were sufficient for the court to find the statutes were not “complementary or parallel.” 

The presentation by plaintiff’s counsel leaves several open questions. If plaintiff had put in evidence showing a triable issue of fact or if plaintiff was allowed to raise arguments he failed to raise below, would the outcome have been different? If plaintiff had chosen to follow through on pursuit of the causes of action under the New York statutes, which were more restrictive, would the court have allowed those claims? If the action had been brought in New York rather than New Jersey, would the court have applied a different standard of review? We may never know; however, a more experienced appellate counsel certainly could have presented plaintiff’s position in a more favorable light. For now, though, on this record, CEPA is unavailable to your client as a cause of action against the Port Authority.

To Stay or Not to Stay: New Jersey Supreme Court Clarifies Standard for Stay of License Suspension in DUI Cases.

By: Sherry L. Foley, Esq.

On March 8, 2017, the New Jersey Supreme Court in State of New Jersey v. Robertson, A-58-14 (March 8, 2017), set forth the standards for staying judgment in DWI cases when the defendant appeals a Municipal Court ruling and when defendant appeals a Law Division ruling. In the trial of a DWI offense in a Municipal Court, the State must prove its case beyond a reasonable doubt. The appeal of such a conviction is to the Law Division, which applies a de novo standard of review, i.e., the Court gives deference to the trial court’s credibility findings but makes its own findings of fact and conclusions of law based on the evidence presented. In that appeal, the burden of proof remains on the State. If the defendant loses at the Law Division, his appeal is to the Appellate Division. On the appeal of such a conviction, the State no longer has the burden of proof. Instead, the standard of review is whether there is sufficient credible evidence in the record to sustain the trial court’s findings. According to the Robertson Court, those differences in posture justify different treatment of requests to stay the judgment. “After the first conviction, the stage is set for a new trial, where the defendant retains the presumption of innocence; after the second, a defendant loses the cloak of innocence and stands convicted — ready to challenge that determination on appeal. Those basic distinctions call for different standards for stay applications at the two levels of the court system.” Id. at 8-9.

As a result of the Court’s decision, a defendant appealing from the Municipal Court to the Law Division and seeking a stay of license suspension is “presumptively eligible” for a stay. The State, if it chooses to oppose the stay request, then has the burden to overcome that presumption by showing that a stay would cause a serious threat of harm to the public. That showing may include the fact that this is not your first DWI or a history of alcohol abuse.

If the conviction is upheld by the Law Division, Rule 2:9-4 applies to the request for a stay while the matter proceeds to the Appellate Division. A stay may be granted only if the defendant satisfies the following elements: (1) “it appears that the case involves a substantial question that should be determined” on appeal, (2) the safety of any person or the community “will not be seriously threatened” if defendant’s license is not suspended, and (3) “there is no significant risk of defendant’s flight.” Robertson, supra, slip op. at 14. The third element will likely not be an issue. The second element can be satisfied by imposing the least restrictive limitations, i.e., allowing a defendant to drive to and from work. The first element poses the most significant hurdle. To be substantial, the question must be a close question and one that would likely lead to reversal. Questions of fact alone generally would not satisfy that element.

The Fourth Circuit Holds That Assault Weapons Are Not Protected by the Second Amendment.

By: Sherry L. Foley, Esq.

The United States Court of Appeals for the Fourth Circuit made history last month by deciding that the Maryland Firearms Safety Act (‘FSA”), which bans citizens, with the exception of retired law enforcement officers, from possessing the vast majority of semi-automatic rifles commonly kept by several million Americans for lawful purposes, did not infringe on the Second Amendment right to keep firearms for self-defense purposes. Equally constitutional, found the Court, was the FSA’s ban on large-capacity detachable magazines (“LCMs”). Interestingly, from a procedural standpoint, a three-judge panel of the Fourth Circuit had remanded the case after the District Court’s grant of summary judgment to the State finding the law constitutional, requiring the District Court to revisit its decision using a strict scrutiny standard instead of the intermediate scrutiny standard it applied. On rehearing, the Fourth Circuit en banc held that no remand was necessary and upheld the District Court’s decision.

The test to determine the constitutionality of a law under a Second Amendment challenge, according to the court, consists of two questions. First, does the Second Amendment apply? Second, if so, what level of scrutiny should be applied to the purpose of the law? Applying that two-prong analysis to the law, the court in Kolbe, et al. v. Hogan, et al., No. 14-1945 (4th Cir. Feb. 21, 2017), found that it did not need to apply the second prong because the first prong of the test was not satisfied. Based on dicta in the Supreme Court case of District of Columbia v. Heller, 554 U.S. 570 (2008), penned by Justice Antonin Scalia, the Kolbe court found that the banned assault weapons and LCMs were NOT constitutionally protected under the Second Amendment because those weapons are “like” “M-16 rifles”-“weapons that are most useful in military service”-which the Heller court noted were not within the purview of the Second Amendment. See 554 U.S. at 627 (the Second Amendment does not safeguard “M-16s and the like.”).

The court, nonetheless, went on to analyze the second prong anyway. The court concluded that even if the Second Amendment did apply, the correct standard is intermediate scrutiny as applied by the District Court not strict scrutiny as espoused by the three-judge panel of the Fourth Circuit. Under that standard, the law is reasonable because it does not leave people without the ability to protect their homes and person.

The court decided the case against the backdrop of the Newtown, Tucson, Aurora and Orlando mass shootings and cited to those massacres and the lessons learned from those tragedies. In self-defense scenarios, it is rare to fire more than ten rounds. In Newtown, where the shooter paused to change out a thirty-round magazine, children were able to run away. In Tucson, the shooter was tackled while reloading his firearm. In contrast, the Aurora shooter emptied his 100-round magazine without a break in firing. There is no reason for someone who simply wants to defend his home and hearth to have a semi-automatic weapon with more than ten rounds of ammunition. The statistics show that a very low percentage of gun owners own these weapons and a very high percentage of these weapons are used in mass shootings. As the Heller court found, the Second Amendment right is not unlimited, and citizens are not entitled to keep and to carry any weapon whatsoever for whatever purpose. Kudos to the Fourth Circuit for a smart decision in Kolbe v. Hogan.

Case Reversed and Remanded After No Cause Because Judge Failed to Ask Open-Ended Questions on Voir Dire.

By: Sherry L. Foley, Esq.

In Heredia v Picininni, Superior Court of New Jersey, Appellate Division, Docket No. A-5714-14T1 (February 15, 2017), the court held that a Judge’s failure to ask open-ended questions as mandated by Directive #4-07 constituted an abuse of discretion resulting in the reversal of a defense verdict and a remand to the trial court. The case is unpublished and, therefore, lacks precedential value but is instructive regarding a Judge’s obligation to follow Directive #4-07 and the consequences for failure to do so.

The Directive in question provides in pertinent part that:

 In addition to the printed questions, the judge shall also inform the jurors in the box and the array that jurors will also be individually asked several questions that they will be required to answer in narrative form.

The judge will then ask [the] juror each of the open-ended questions, to which a verbal response shall be given and for which appropriate follow up questions will be asked.

. . . .

Some open-ended questions must be posed verbally to each juror to elicit a verbal response. The purpose of this requirement is to ensure that jurors verbalize their answers, so the court, attorneys and litigants can better assess the jurors’ attitudes and ascertain any possible bias or prejudice, not evident from a yes or no response, that might interfere with the ability of that juror to be fair and impartial. Open-ended questions also will provide an opportunity to assess a juror’s reasoning ability and capacity to remember information, demeanor, forthrightness or hesitancy, body language, facial expressions, etc.

. . . .

The judge must ask at least three such questions, in addition to the biographical question and the two omnibus qualifying questions. This is a minimum number and judges are encouraged to ask more where such action would be appropriate.

The Directive is binding on all trial courts. See Gonzalez v. Silver, 407 N.J. Super. 576, 598 (App. Div. 2009).

Plaintiff, at trial, had asked the Judge to ask five open-ended questions that Plaintiff had crafted. The Judge refused to ask them. Instead, the Judge stated that he would be asking many open-ended questions in the form of biographical inquiries as required by the Directive. A jury was empanelled, without objection, and returned a verdict of no cause of action on non-economic losses but awarded plaintiff economic damages representing plaintiff’s outstanding medical bills. The appellate court found the judge’s biographical questions to be in accordance with the Directive but they were not a substitute for the open-ended questions mandated by the Directive. The purpose of the open-ended questions is to reveal juror bias. While the Judge had the discretion to not ask Plaintiff’s questions, he was still obligated to ask at least three open-ended questions. The failure to do so constituted error but was it harmless error? In this case, the Court said no. Based on its review of the record, without stating any specifics, it found the failure to ask the open-ended questions to be of “such a nature as to have been clearly capable of producing an unjust result.” R. 2:10-2. If your judge fails to ask open-ended questions in voir dire, you have grounds for an appeal.

Trial Lawyers Beware: Appellate Division Sua Sponte Sanctions Plaintiff’s Appellate Attorney for Shoddy Brief.

By: Sherry L. Foley, Esq.

The Appellate Division in Sackman v New Jersey Manufacturers Ins Co., on April 26, 2016, sanctioned the plaintiff’s appellate attorney pursuant to Rule 2:9-9.  That rule is designed to deter the improper prosecution and defense of an appeal.  Its purpose is to prevent the misuse of judicial resources that result from such improprieties.  Not to be confused with Rule 1:4-8 or the Frivolous Action Statute,  Rule 2:9-9 is meant to deal with violations of appellate procedural rules rather than spurious appeals.

The court in Sackman felt compelled to censure and sanction appellate counsel personally because the brief he submitted “displayed an utter indifference to the standards of professional competence a tribunal is entitled to expect from an attorney admitted to practice law in this State.” Sackman, supra, slip op. at 27.   The brief lacked “any effort by counsel to cite and discuss, in a professionally reasonable manner, relevant legal authority” as it pertained to points raised in his brief.  Ibid.

Among counsel’s transgressions, he failed to cite the relevant standard of review; he failed to analyze case law as it applied to the facts at bar.  He failed to provide any case law in support of some of his positions and instead filled pages with nothing more than his unsupported assertions.  Labelling the brief “shoddy” and “unprofessional”, the court cited to State v. Hild, 148 N.J. Super. 294 (App.Div. 1977) wherein the court had addressed and condemned similar “shoddy” workmanship. “The absence of any reference to the law, as here, suggests as well a regrettable indifference on the part of the brief writer not only to the rules but to the interest of the client as well.”  Id. at 296.

Reaffirming its commitment to the professional standards expressed in Hild, the court set forth three rules that every attorney practicing before the court must adhere to.  First, be familiar with the record below.  Second, research and analyze pertinent legal authority as it applies to the pertinent facts on appeal.  Third, briefs must reflect that the first two rules were performed in a “diligent and professional manner.”  Sackman at 30.

The court emphasized that this type of professional behavior is not only to be expected from the courts but from your clients as well.  The monetary sanction imposed was not substantial–the attorney’s firm was to issue a check payable to the Treasurer of the State of New Jersey in the amount of $200.00—but the client lost and, based on the opinion, may have an ethical complaint against the attorney.  The moral of this case is hire experienced appeal counsel to handle your appeals.  From this point forward, briefs submitted to the appellate courts of New Jersey will be strictly scrutinized for compliance with the Sackman standards.

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