Vol. II, Issue 1
June 24, 2021
As George Harrison wrote, here comes the sun! Summer is here and hopefully you are taking a moment for some rest and relaxation with your loved ones. While you soak up the sun, the New Jersey Supreme Court has been writing about snowy skies with an opinion on the Ongoing Storm Rule. With trials resuming, there is some timely guidance from the New Jersey Appellate Division as well as another published decision on patients’ bills of rights, this time applicable to assisted living facilities.
We hope these cases are of interest. As always, we appreciate the chance to catch up with you and we hope you enjoy this issue of HKMP’s Case Alerts.
The New Jersey Supreme Court in the case of Pareja v. Princeton Int'l Props., __ N.J. __ (2021) found no duty for commercial landowners to clear sidewalks during ongoing snow or ice events, absent two exceptions. In a split decision, the Supreme Court reversed the Appellate Division’s prior ruling in the case and effective affirmed the trial court’s granting of Summary Judgment. The Supreme Court majority agreed with the ongoing storm rule, which provides that commercial landowners do not have a duty to remove the accumulation of snow and ice, until the conclusion of the storm, unless there are unusual circumstances. The majority recognized "the premise of the ongoing storm rule is that it is categorically inexpedient and impractical to remove or reduce hazards from snow and ice while the precipitation is ongoing". The Supreme Court rationalized that “applying our precedent to a situation where a storm is ongoing, we hold that commercial landowners do not have the absolute duty, and the impossible burden, to keep sidewalks on their property free from snow or ice during an ongoing storm". The Supreme Court however recognized two exceptions where liability may be found against the commercial landowners : (1.) where the commercial landowner’s actions increase the risk to pedestrians and invitees to their property; or (2.) where there was a preexisting risk on the premises before the storm.
The New Jersey Supreme Court in the case of Rios v. Meda Pharmaceutical, Inc., __ N.J. __ (2021) unanimously held that highly offensive comments present sufficient evidence of severity to create a genuine issue of material fact to deny summary judgment in a lawsuit based upon the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to - 49. Not only is the LAD “remedial legislation that should be liberally construed to advance its purpose”, Smith v. Millville Rescue Squad, 225 N.J. 373, 390 (2016), N.J.S.A. 10:5-3, but it also is intended to protect “civil rights of individual aggrieved employees ” and the “strong public interest in a discrimination free work- place.” Lehmann v. Toys ‘R’ Us, 132 N.J. 587, 600 (1993). Consequently, the standards set forth in Lehman are also applicable to hostile work environment claims, including claims based on racial comments. Taylor v. Metzger, 152 N.J. 490 (1998). In the case of a racial epithet, its “connotation . . . can materially contribute to the remark’s severity.” Taylor, 152 N.J. at 502. The Supreme Court in Rios also recognized the statement in Taylor that “an egregious epithet”, “an unambiguously demeaning racial message” or an “ugly, stark and raw racist slur”, “can be sufficiently severe to establish a claim even if used only once.” Taylor at 502-03. Accordingly, the Supreme Court in Rios held that “for a hostile work environment claim based on offensive comments directed to a Hispanic employee, the remarks must be viewed from the perspective of a reasonable Hispanic person in the plaintiff’s position.” Thus, "under all of the circumstances, a rational factfinder could have reasonably found” that “the alleged slurs” directed at plaintiff were ”sufficiently severe to create a hostile work environment” and as such plaintiff “should be permitted to present his claim to a jury”.
The New Jersey Supreme Court in the case of Kathleen Delanoy v. Township of Ocean, __ N.J. __ (2021) substantially upheld the Appellate Division’s interpretation of The New Jersey Pregnant Workers Fairness Act (PWFA) insofar as it recognizes for pregnant and breastfeeding employees three distinct causes of action within N.J.S.A. 10:5-12(s): 1) unequal or unfavorable treatment; 2) failure to accommodate; and 3) unlawful penalization The matter arose from a pregnancy discrimination claim brought by plaintiff, a police officer, against her employer, the Township of Ocean, alleging in part that the Standing Operating Procedures (SOPs) issued by the then-Chief of Police and the Township’s treatment of her violated the NJ Laws Against Discrimination (LAD) as modified by the PWFA. The Town maintained two types of SOPs that provided an option for light-duty work. The two SOPs were substantially similar, with both providing an option for light-duty work. The Maternity SOP applied to pregnant officers, and the Light Duty SOP applied to non-pregnant injured officers. Both SOPs required a doctor’s note recommending light duty, and both required that officers use all their accumulated paid leave time as a condition of the light-duty assignment. The date that an officer would have to begin using available leave time was calculated by applying the officer’s accumulated leave backwards from the officer’s projected return-to-duty date. The SOPs, however, did have two important differences. First, under the Maternity SOP, the projected return date had to be “no more than 45 calendar days past the expected due date.” Under the Light Duty SOP, the doctor’s note was required to include the projected date for the officer’s return to full duty, which would then control. Second, under the Light Duty SOP, the police chief had discretion to waive the exhaustion-of-accumulated-leave condition; the Maternity SOP did not have an equivalent provision. On appeal, the Appellate Division held that under the PWFA, the Maternity SOP was facially invalid because it treated pregnant employees unfavorably as compared to non-pregnant employees subject to the Light Duty SOP. The Supreme Court granted the Township’s petition for certification and considered the PWFA for the first time. The Supreme Court agreed substantially with the Appellate Court’s thorough analysis, to the extent of plaintiff’s challenge of the Maternity SOP. However, the Court saw no question that required resolution, on remand, concerning whether the Maternity SOP was applied in a discriminatory way for purposes of the unequal-treatment claim. Executed according to its terms, the policy was applied to Delanoy in a discriminatory way by the Township. The Supreme Court also analyzed the Appellate Court’s finding of statutory authority for a reasonable- accommodation claim by an employee under the PWFA. The Court diverted from the Appellate Court’s reliance on case law to support its finding, noting the LAD, as amended by the PWFA, now specifically address pregnancy accommodation. Accordingly, the Court set aside the Appellate Division’s approach and adhered closely to the precise, procedurally clear, and detailed protections that the Legislature has provided to pregnant and breastfeeding employees. Thus, the Appellate Division’s judgement was affirmed, as modified, and the matter remanded for certain factual findings to be made.
The New Jersey Appellate Division in Lanzo v. Cyprus Amax Minerals Co., __ N.J. Super. __ (App. Div. 2021) (A-5711-17), reversed a $117 million dollar asbestos talc toxic tort mesothelioma verdict concluding that the trial court should not have permitted certain plaintiff expert testimony against defendants Johnson & Johnson Consumer Inc.(“JJCI”) and Imerys Talc America Inc.(“Imerys”) The convoluted trial court issues included: (i) the trial judge limiting the scope of plaintiff expert testimony that non-asbestiform cleavage fragments of certain minerals can cause mesothelioma but permitting the experts to testify “regarding non-asbestiform cleavage fragments from a medical point of view”; (ii) the trial judge’s response to plaintiffs application “to impose sanctions upon Imerys based on its failure to produce certain talc samples and test data in discovery and its destruction of certain talc samples” with the trial judge at first striking Imerys' answer and suppressing its defenses but then reconsidering that decision and deciding to provide the jury with an adverse inference instruction as a sanction for Imerys' discovery violations and spoliation of evidence; and (iii) the trial judge’s denial of the severance motion and/or mistrial motion as to the other remaining co-defendant JJCI despite the adverse inference charge as to defendant Imerys.
Regarding the expert issue, the Appellate Division in essence agreed with the appellant that the trial court mistakenly exercised discretion in permitting certain plaintiff expert testimony, as plaintiff experts failed to (i) “explain what causes the human body to respond in the same way to the different mineral forms”; (ii) “failed to acknowledge the contrary opinions of scientists and government agencies”; (iii) “failed to provide evidentiary support for their opinion that non-asbestiform minerals can cause mesothelioma”; and (iv.) “failed to produce evidence that their theory that non-asbestiform minerals are harmful had been subject to peer-review and publication or was generally accepted in the scientific community”. Emphasizing the Supreme Court decision in In re Accutane Litigation (Accutane), 234 N.J. 340, 388 (2018), the Appellate Division reaffirmed that an expert's opinion on causation is only admissible when "based on a sound, adequately-founded scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field." Accutane at 349-50 (quoting Rubanick v. Witco Chem. Corp., 125 N.J. 421, 449 (1991)). When there are “novel theories of causation, a court must review the ‘data and studies relied on by experts proffering an opinion in order to 'determine whether the expert's opinion is derived from a sound and well-founded methodology that is supported by some expert consensus in the appropriate field.’” Accutane at 350 (quoting Landrigan v. Celotex Corp., 127 N.J. 404, 417 (1992)). Furthermore, as a gatekeeper, the trial court “must also assess the soundness of the proffered methodology and the qualifications of the expert" and must focus "solely on principles and methodology, not on the conclusions that they generate." Kemp ex rel. Wright v. State, 174 N.J. 412, 426 (2002) (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 595 (1993)). See also Accutane, 234 N.J. at 388; Rubanick, 125 N.J. at 454. In performing a gatekeeper function, "the trial court is responsible for advancing the truth-seeking function of our system of justice, while still allowing for new or developing opinions on medical causation that may not yet have gained general acceptance." Accutane, 234 N.J. at 389. Quoting Accutane, “[t]he trial court is the spigot that allows novel expert testimony in areas of evolving medical causation science, provided the proponent of the expert can demonstrate that the expert adheres to scientific norms in distinct ways that we have identified.” 234 N.J. at 389. Care must be taken by the trial court to ensure “compliance with the requirement of ‘some expert consensus that the methodology and the underlying data are generally followed by experts in the field,’” 234 N.J. at 389 (quoting Rubanick, 125 N.J. at 450) while distinguishing “scientifically sound reasoning from that of the self-validating expert”, Landrigan, 127 N.J. at 414, and disallowing “unsubstantiated personal beliefs.” Kemp, 174 N.J. at 427. Accordingly, the Appellate Division found that the trial judge (i) improperly admitted the testimony of plaintiff’s experts James Webber, Ph.D. and Jacqueline Moline, M.D.; and (ii) failed to conduct a Rule 104 hearing to analyze the Daubert Factors with respect to plaintiff’s experts per Accutane. The Daubert principles are “critical for assessing the reliability of expert testimony” and will “aid trial courts in their role as the gatekeeper of scientific expert testimony in civil cases”. The Appellate Division in Lanzo, consequently found that the trial court’s erroneous expert decisions were "clearly capable of producing an unjust result," and therefore, a new trial is required.
Finally, with respect to the severance issue, the Appellate Division cited the precedential cases of State v. Mance, 300 N.J. Super. 37, 53 (App. Div. 1997) and Rendine v. Pantzer, 141 N.J. 292, 310 (1995), that in deciding a severance motion, a court must “balance[] the . . . interest in judicial economy against the potential prejudice to a defendant.” Mance, 300 N.J. Super. at 53. Prejudice however “cannot easily be quantified, particularly if separate trials would not materially alter the evidence offered to support and defeat the claims.” Rendine, at 310. Conducting such analysis the Appellate Division decided that “once the jury was permitted to draw an adverse inference that Imerys' talc was contaminated with asbestos, it would be difficult, if not impossible, for the jury not to make the same finding as to JJCI” so the trial court erred by failing to sever the claims against JJCI and Imerys. 
The New Jersey Appellate Division in Estate of Burns v. Care One, __ N.J. Super. __ (App. Div. 2021) vacated a trial court’s order on a motion for summary judgment as the Appellate Division held that the New Jersey Legislature did not intend to create a private cause of action for an assisted living facility’s alleged breach of patients’ statutory bill of rights. Moreover, the Appellate Division declined to find a common law cause of action for such an alleged violation. The Estate had alleged that defendant’s substandard care caused the decedent’s death due to numerous falls and the development of pressure ulcers and infections while at defendant’s facility. The parties filed various summary judgment motions on the issue of defendant’s alleged breach of state and federal statutes and regulations. The trial judge had granted plaintiff’s motion concluding the Rooming and Boarding House Act, as well as the Dementia Care Home Act, N.J.S.A. 26:2H-148 to -157, provided protections to persons like decedent by providing a private cause of action for their breach. Care One appealed arguing it operated an assisted living residence but that the bill of rights for assisted living residents, N.J.S.A. 26:2H-128(b), did not expressly incorporate a right to pursue a private cause of action for an alleged breach. Following a comprehensive review of the development of that Act and similar state laws and regulations, the Appellate Division was persuaded that since “the Legislature expressly declared both a bill of rights and a private cause of action” for other types of facilities, “its one departure from the norm” was deemed “telling” and a conscious decision to not create one. Similarly, the Appellate Division declined to find a common law cause of action while commenting that the Legislature was “in the best position to correct or alter our course” if it disagreed with the Court’s ruling. In reaching its holding, the Court rejected the notion that a plaintiff could prove at trial that the defendant was operating a different type of facility other than an assisted living residence for a jury to find a violation of the bill of rights applicable to that other type of facility. The Appellate Division noted the facility was governed by its licensure as an assisted living facility and that only the Department of Health, neither a judge nor a jury, could determine if a facility was operating as something other than that which it was licensed to run.
The New Jersey Appellate Division in Dennis v. Deborja, A-0948-19 (N.J. Super. Ct. App. Div. Apr. 26, 2021) vacated a jury verdict, finding that the trial court improperly declined plaintiff's request for a jury question on whether defendant "deviate[d] by failing to inform" plaintiff about a remnant gallbladder. In August 2005, plaintiff was experiencing abdominal pain, and sought treatment from defendant, Dr. Deborja. He recommended and later performed a cholecystectomy to remove plaintiff’s gallbladder. Plaintiff signed a consent form prior to the surgery, and defendant informed her of all the risks, and also advised her of the potential need to convert from a laparoscopic to an open procedure. After the surgery defendant informed plaintiff that the surgery proved difficult, and that he needed to open her up to complete the operation. Following the surgery, plaintiff did not have any serious abdominal issues until the birth of her son six years later, in September 2011. Thereafter, plaintiff was evaluated at St. Peter’s Hospital complaining of upper abdominal pain, however she was discharged after nothing was found to explain her pain. Over the years that ensued, plaintiff’s abdominal pain continued to increase. Then, in 2016, plaintiff visited an emergency room in which she was told that a portion of her gallbladder was likely still there. Plaintiff underwent a second surgery with a different physician and did not experience further pain thereafter. Plaintiff subsequently filed this medical malpractice action against Dr. Deborja and St. Peter’s Hospital. The Appellate Division rejected plaintiff’s arguments that the trial court failed to give the jury an informed consent instruction, and that defense expert’s testimony confused the jury. Thus, the only issue left for the Court to consider, was whether court erred by providing the jury with a misleading verdict sheet. The Court noted that jury verdicts should be set aside in favor of new trials only with reluctance and then only in the cases of clear injustice. Here, the court declined plaintiff's request for a jury question on whether defendant "deviate[d] by failing to inform" plaintiff about a remnant gallbladder. The court concluded that such additional language was not required because the jury would resolve this issue by its answer to question number one. Viewing the verdict sheet as a whole, the Court was satisfied that it was "misleading, confusing, or ambiguous, as it could have thwarted the jury’s ability to consider plaintiff's primary theory of defendant's liability that he deviated from the accepted standard of care by failing to notify her, and appropriately memorialize, that a remnant gallbladder remained.” Accordingly, the Court vacated and remanded for a new trial consistent with its opinion.
The New Jersey Appellate Division in Pisano, v. Rutgers, The State University, A-5665-18 (N.J. Super. Ct. App. Div. Apr. 9, 2021), affirmed a ruling of the lower court, finding plaintiff failed to sufficiently demonstrate extraordinary circumstances that would have prevented her from filing a timely notice of claim under New Jersey Tort Claims Act (“TCA”). On December 18, 2018, plaintiff decedent son suffered a stroke and was treated at Community Medical Center. Three days later, decedent was transferred to Robert Wood Johnson Hospital (“RWJ”) where he underwent valve replacement surgery. On December 20, 2018 he was diagnosed with candidis endocarditis. Decedent thereafter remained hospitalized at RWJ and tragically passed on January 25, 2019. Plaintiff did not contact her attorney within the ninety-day period under the TCA and missed her deadline to submit a notice of claim on or before April 25, 2019. On May 1, 2019 plaintiff, through counsel, filed a notice of claim; then, on May 9, 2019, plaintiff’s counsel moved for leave to file a late claim notice. Other than her pain and suffering, plaintiff failed to provide any justification as to why she was unable to file her notice of claim within the statutorily required period. Accordingly, the trial court denied plaintiff’s motion after finding plaintiff did not establish extraordinary circumstances that prevented her from filing a timely notice. Notwithstanding the Appellate Division’s acknowledgment of plaintiff’s tremendous loss, the Court maintained that the ninety-day requirement may only be excused under very limited conditions. In determining whether a notice of claim under N.J.S.A. 59:8-8 has been timely filed, a sequential analysis must be undertaken. The first step in this analysis is to ascertain the date the injury in question was discovered. If a claim has not been timely filed within ninety days after the discovery date, a late filing will only be permitted under extraordinary circumstances. Under the discovery rule, if the victim either is unaware that he has been injured or, although aware of the injury, does not know that a third party is responsible, than date of accrual may be tolled until the injured party reasonably discovers a third party was responsible for their injuries. Since plaintiff was unable to show any severe, debilitating, or uncommon medical conditions that would justify her delay in filing a claim, the Court concluded she did not make a prima facie showing of extraordinary circumstances under N.J.S.A. 59:8-9.
The New Jersey Appellate Division in Fowler v. Union Carbide Corp., A-4007-18 (N.J. Super. Ct. App. Div. May 26, 2021) reversed jury verdict, finding the trial judge erroneously instructed the jury regarding defendant's duty to warn and erred on the issue of medical causation. In a mesothelioma asbestos lawsuit alleging strict liability and negligent failure-to-warn claims against Union Carbide, the trial court (i) correctly ruled that Union Carbide owed separate duties to decedent and his employers, and that Union Carbide's warnings to the employers did not discharge its duty to decedent; (ii) appropriately explained the two separate duties, noting that the manufacturer must take reasonable steps to ensure that warnings reach the employee; and (iii) properly instructed that the jury could consider both “avenues of warning”. The trial court however erred in instructing the jury that Union Carbide's duty to place an adequate warning on the product could not be discharged through warnings and information to the employer. Such “instruction is inconsistent with the case law, which allows the manufacturer to discharge the duty by providing adequate warnings and information to the employer, so long as the manufacturer's actions in intending the warnings to reach the employer were reasonable under the circumstances” citing Grier v. Cochran Western Corp., 308 N.J. Super. 308, 317 (1998). The jury is “obligated to consider the nature of the product, the nature of the safety training the product required, the nature of the training defendant offered” and whether it was reasonable for defendant to believe that plaintiff’s decedent’s employer “would relay the warnings” to the employee and whether the warnings were “sufficiently calculated to reach the employee” citing Theer v. Phillip Carey, 133 N.J. 610, 622 (1993). The jury should have also considered “the nature of the workplace” including whether defendant had the ability to enter the workplace and speak directly to employees, hand them pamphlets, and display posters etc. Accordingly, “the adequacy of warnings to the employee are part of the balancing test in determining reasonableness under the circumstances. If the warnings and instructions on the product are inadequate, the manufacturer must make greater efforts to warn the employer of the product's dangers, provide sufficient information to the employer on the product's dangers and safe use, and ensure that the employer conveys this information to the employee. However, the manufacturer may also have to establish that the nature of the workplace prevented the manufacturer from conveying the information directly to the employee. At bottom, the issue of reasonableness is for the jury to decide”. The Appellate Division in Thomasenia also found that the court did not provide a factually tailored instruction with respect to medical proximate causation between Union Carbide's activities and decedent’s mesothelioma. Although the jury found that plaintiff proved that decedent was exposed to Union Carbide's asbestos, it is not possible to know whether the jury would have found that he was exposed with the requisite frequency, regularity and proximity because the court did not provide such an instruction. Notably, the record contained sufficient evidence for a jury to question whether decedent was exposed to Union Carbide's asbestos on a liability-imposing basis. 
The New Jersey Appellate Division in Bello v. State Farm Indem, Co., A-2437-19 (N.J. Super. Ct. App. Div. Apr. 26, 2021), overturned a decision of the lower court, finding the trial judge committed reversible error by accepting an inconsistent verdict and entering judgment. Plaintiff filed suit against State Farm seeking damages for injuries sustained in a motor vehicle accident. The accident involved plaintiff and two unknown drivers. To avoid a collision, plaintiff swerve around both vehicles, but struck a guard rail in the process. Plaintiff filed against defendant seeking uninsured motorist coverage and income continuation benefits. The parties stipulated damages and proceeded with a liability-only trial. The stipulation provided that if the jury found plaintiff less than or equal to fifty percent negligent, then defendant would pay plaintiff the full $100,000 under the uninsured motorist policy limit. After several deliberations, the jury ultimately returned its third and final verdict. Inconsistent were the responses to and questions five and six of the verdict form, in which the jury found plaintiff was neither negligent nor a proximate cause of the accident, it nevertheless found plaintiff was twenty-five percent at fault for the accident. Despite this inconsistency, and over defense counsel’s objection, the trial judge proceeded to discharge the jury and enter judgment in favor of the plaintiff because the jury found plaintiff less than fifty percent at fault. Here, the jury returned multiple inconsistent verdicts. The jury found a failure to prove plaintiff's negligence was a proximate cause of the accident but still apportioned fault to plaintiff. Where inconsistent answers to jury interrogatories are contradictory, thus suggesting jury mistake or confusion, a verdict based thereon cannot stand. The judge should have brought out the jury, explained the inconsistency in its verdict, and elicited information to clarify the jury's intent or possible confusion. Thus, this matter was reversed and remanded for a new trial.
The New Jersey Appellate Division in Morgan v. Maxwell, A-3157-19 (N.J. Super. Ct. App. Div. Apr. 26, 2021) partially overturned a judgement of the trial court, finding that plaintiff’s counsel improperly invoked the golden rule in his summation to the jury requiring a new trial on damages. In June 2014, plaintiff became an administrative assistant for music artist, Fetty Wap, Fetty Wap Touring Inc. (FWTI), and RGF Productions, the record label. Initially, plaintiff’s duties included answering emails, phone calls, booking tours for Fetty Wap, and other administrative functions. Plaintiff never entered a formal written employment agreement, and she was not a licensed booking agent. After working as an assistant, plaintiff claims Fetty Wap and others referred to her as his manager. Plaintiff would also use her personal AMEX card for business-related travel, food, and other expenses. Plaintiff claims that RGF co-owner, Frank Robinson, assured her that she would be reimbursed for such expenses. Plaintiff also claims that Robinson initially agreed to pay plaintiff a ten-percent commission for any shows booked by her, which was eventually lowered to five percent upon the formation of RGF’s partnership with ICM booking agency. However, in late 2016 through 2017 all reimbursements and commissions she was to receive ceased. RGF terminated plaintiff’s employment in April 2017. Over the next several months plaintiff made attempts to recover any outstanding reimbursements and commissions still due to her. Then, on August 6, 2017 TMZ published an article entitled “Fetty Wap Fires Assistant for Allegedly Stealing $250,000.” RGF subsequently published a press release accusing her, in part, of “double dipping” in fees. Plaintiff then filed suit against the above-mentioned parties, seeking liquidated damages representing compensation for work performed and reimbursement for expenses. Additionally, she requested unspecified damages for defamation. Defendants Fetty Wap and FWTI settled with plaintiff, and RGF was the sole defendant on appeal. The crux of RGF’s appeal was that plaintiff’s counsel improperly (i) invoked the golden rule and asked jurors to consider damages “as if they were in the plaintiff's position” and (ii) requested punitive damages. The Appellate Division agreed with defendant’s contention regarding plaintiff’s counsel’s use of the golden rule. Indeed, it is improper for any attorney to invoke this rule because it tends to encourage the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on evidence. The Court also agreed with defendant insofar as the punitive damages award was improper because plaintiff failed to allege it in the complaint. Accordingly, the Appellate Division vacated the jury’s verdict with respect to damages but affirmed on liability.
As always, if you have any questions regarding any of the cases in this issue of Case Alerts, or if HKMP can be of service to you, then please contact us at or 973-912-5222.
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