CASE ALERTS
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September 29, 2022
As we bid adieu to summer, we welcome fall and all the litigation activities that start up once again. But we would be remiss in not acknowledging the Court decisions throughout the summer months of 2022. This issue of Case Alerts hopes to inform you of those many decisions effecting New Jersey litigation practices. Beginning with the United States Court Of Appeals for the Third Circuit addressing standing in class actions; the New Jersey Supreme Court opining on mandatory arbitration under the Direct Action Statute in one decision and unemployment benefits contributions in the context of employees versus independent contractors in another; to the New Jersey Appellate Division rendering decisions as to burdens of proof in automotive cases involving aggravation of injuries, and delays in treatment under the No-Fault Act, as well as affirming a verdict under the Conscientious Employee Protection Act (CEPA), the False Claims Act and the Anti-Kickback Statute, and considering “Extraordinary Circumstances” to justify a late Notice of Claim under the New Jersey Tort Claims Act, the “good cause” standard versus the “exceptional circumstances” standard for extending discovery, the Affidavit of Merit Statute and the “Patient’s First Act”. The New Jersey Law Division has also been busy rendering opinions including consideration of the Ending Forced Arbitration Act in the context of the New Jersey Law Against Discrimination Act, ruling on the statute governing actions for Sexual Abuse and the shielding identities of parties. 

Last, but certainly not least, are the New Jersey Court updates as to the attorney conducted voir dire pilot program and rules and amendments to reduce bias in jury selection.

As always, we welcome your thoughts and hope you enjoy this issue of HKMP’s Case Alerts. 
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
STANDING ASSESSED REGARDING FINANCIAL HARM OF CONSUMER’S CHARGE FOR FREE SAMPLES

Adam v. Barone, No. 21-2092 (3d Cir. Jul. 19, 2022).

After Plaintiff Adam was charged nearly $100 for beauty products that she believed were free samples, the seller offered the chance to return the products to possibly obtain a refund. Plaintiff refused and filed a complaint dismissed by the United States District Court for the District of New Jersey for lack of standing. The Court of Appeals for the Third Circuit reversed and remanded.

Plaintiff ordered two free samples for which an advertisement instructed that only payment of shipping and handling was required. Later that same day, plaintiff was charged $92.94 resulting in an overdraft of her checking account. Plaintiff filed a complaint on behalf of a nationwide class in the Northern District of California, transferred to New Jersey pursuant to Defendants’ motion, alleging violations of California laws, the Electronic Fund Transfer Act (15 U.S.C. §§ 1693-1693r), the RICO Act (18 U.S.C. §§ 1961-1968), and various consumer protection laws. The District Court granted Defendants’ motion to dismiss, determining the action was non-justiciable.

In assessing standing, the Court of Appeals relied on the analysis from Mielo v. Steak ‘n Shake Ops., Inc., 897 F.3d 467, 478 (3d. Cir. 2018), establishing a plaintiff must have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” While the District Court determined the vendor’s offer for the possibility of a refund rendered plaintiff’s action moot, the Court of Appeals determined the three factors were satisfied.

The Court assessed that Plaintiff’s financial harm satisfied the first factor and Defendants’ conduct provided but-for causation for Plaintiff’s harm, satisfying the second factor. A favorable judicial decision would provide redress for financial harm by ordering Defendants to pay restitution, for example. Because plaintiff was able to show all three elements of standing, the District Court erred in dismissing her claims and the order was reversed and remanded. 
NEW JERSEY SUPREME COURT
MANDATORY BINDING ARBITRATION REINSTATED FOR DERIVATIVE CLAIMS

Crystal Point Condominium Association, Inc. v. Kinsale Insurance Company, ___N.J.___ (2022) (A-76-20) (085606)

The New Jersey Supreme Court held plaintiff Crystal Point Condominium Association, Inc., must assert claims against defendant Kinsale Insurance Company in arbitration, reversing the Appellate Division decision.

The relevant policies between the condo association and the insurance company both contained provisions compelling the parties to binding arbitration. Plaintiff Crystal Point brought suit against professionals and contractors after the condominium was found to have construction defects. The defendants had gone out of business and been insured by defendant Kinsale. Plaintiff filed a declaratory action against defendant insurer under the Direct Action Statute (N.J.S.A.17:28-2). The Appellate Division held the arbitration clause was unenforceable and remanded the matter to be litigated.

The language of the Direct Action Statute applies to (1) coverage for claims “against loss or damage resulting from accident to or injury suffered by an employee or other person and for which the person insured is liable”; or (2) coverage for claims “against loss or damage to property caused by animals or any vehicle drawn, propelled or operated by any motive power, and for which loss or damage the person insured is liable.” An insolvency requirement in the Statute required plaintiff to also present prima facie evidence of the insolvency or bankruptcy of the parties insured by defendant. The Direct Action Statute also provides for a claim against an insolvent or bankrupt debtor to be “under the terms of the policy for the amount of the judgment in the action not exceeding the amount of the policy.”

Here, the “terms of the policy” includes the arbitration clause. The New Jersey Supreme Court found the language of the Statute encompassed plaintiff Crystal Point’s claims against defendant Kinsale as derivative claims, therefore the claims are subject to the terms of the policy including mandatory binding arbitration.

UNDER ‘ABC TEST’, 16 ENTITIES FOUND TO BE EMPLOYEES TRIGGERING UNEMPLOYMENT BENEFITS CONTRIBUTION

East Bay Drywall, LLC v. Department of Labor & Workforce Development, ___N.J.___ (2022) (A-7-21) (085770)

The New Jersey Supreme Court recently considered the proper employee classification of employees or independent contractors pursuant to the “ABC test” under the Unemployment Compensation Law. N.J.S.A. 43:21-19(i)(6)(A) to (C).

Drywall installation company, East Bay Drywall, LLC, ceased reporting wages to the Department of Labor and Workforce Development in 2013, triggering an audit to determine whether workers hired between 2013 and 2016 were independent contractors or employees. Using the “ABC test”, the auditor determined that half the “subcontractors” working for East Bay should have been classified as employees, therefore East Bay owed $42,120.79 in unpaid Unemployment-Compensation and Temporary-Disability Benefit contributions pursuant to the Unemployment Compensation Law, N.J.S.A. 43:21-7.

After East Bay appealed the Department of Labor and Workforce Development Commissioner’s final decision and order, the Appellate Division held that only five of the sixteen entities should have been classified as employees under the ABC test. The Supreme Court affirmed the Appellate Division’s judgment as to the five entities and reversed the court’s determination as to the other eleven workers, holding that all sixteen workers were properly classified as employees.

The ABC test is a three-pronged test which “analyzes whether the individuals are under the direction and control of the employer, whether the work is outside of the usual course of business or which such service was preformed, and finally, whether such individual is customarily engaged in an independently established trade, occupation, profession or business.” N.J.S.A. 43:21-19(i)(6).

Because East Bay set the terms of employment and the workers’ remained within East Bay’s place of business, the Commissioner found that every worker failed prong A and B. The Commissioner also concluded that every worker failed prong C, as there was an insufficient showing that the workers operated independent of East Bay. As East Bay submitted no evidence that the entities continued to perform services during the audit period, all sixteen workers failed prong C and were found to be East Bay’s employees. 
NEW JERSEY APPELLATE DIVISION
WHEN PLEADINGS DO NOT ALLEGE AGGRAVATION, COMPARATIVE ANALYSIS OF INJURIES NOT REQUIRED BY PLAINTIFF, RATHER IT IS DEFENDANTS BURDEN

Blocker v. Deloatch, A-1422-20 (N.J. Super. Ct. App. Div. June 14, 2022) (unpub.)

In an automobile negligence action, plaintiff Sabrina Blocker appealed from two orders granting summary judgment in favor of defendants and dismissing the complaint with prejudice. The Appellate Division reversed the dispositive orders entered in favor of defendants.

In April 2016, plaintiff was involved in a three-car accident in Franklin Township with defendants Joseph Revolinsky and Richard Deloatch. Plaintiff was treated for low back pain following the 2016 accident. In March 2018, plaintiff was involved in a second accident with defendant Doris Henriquez.

Plaintiff was evaluated by three doctors after the April 2016 accident through January 2020. Dr. Elkholy reported specifically how plaintiffs low back pain significantly worsened after being involved in the March 2018 accident, which accentuated her previous condition. Plaintiff filed a complaint alleging negligence and seeking damages from both of the 2016 and 2018 accidents.

Defendants Revolinsky and Deloatch moved for summary judgment, contending plaintiff failed to serve an expert report containing a comparative analysis of the injuries sustained and how the accidents aggravated or exacerbated the injuries in accordance with the Polk standard. Polk v. Daconceicao, 268 N.J. Super. 568, 575 (App. Div. 1993). The motion judge granted both motions and dismissed plaintiff’s complaint, finding the report of Dr. Elkholy deficient and nothing more than a net opinion.

In plaintiff’s complaint, plaintiff did not allege that the 2016 and 2018 accidents aggravated any previously stated injuries. The Appellate Division relied on Davidson, where the Supreme Court addressed the evidentiary burden of a plaintiff who had history of prior injuries but did not plead aggravation in seeking damages. The Court concluded the plaintiff could “carry her burden of moving forward in her non-aggravation case by demonstrating the existence of a ‘permanent’ injury resulting from the automobile accident without having to exclude all prior injuries to the same body part.” Davidson v. Slater, 189 N.J. 166, 170 (2007).

Accordingly, the Appellate Division held that since the plaintiff did not plead aggravation, she was not required to provide a comparative analysis of her past, present, and subsequent injuries. Defendants should have had the burden to differentiate the causative effect of the collisions before a factfinder. The Court determined that a reasonable factfinder could find defendants’ conduct caused plaintiff to sustain an injury with causation as a question for the factfinder, thus the Appellate Division reversed and remanded the summary judgment orders.
 
SUMMARY JUDGMENT ORDER REVERSED ABSENT EXPLANATION FOR DELAY IN PLAINTIFF’S TREATMENT

Vera v. State Farm Indemnity Co., A-2236-20 (N.J. Super. Ct. App. Div. June 16, 2022) (unpub.)

After suffering injuries in an automobile accident, Plaintiff Miguel Vera sued his insurer, Defendant State Farm Indemnity Company, alleging defendant breached its policy by delaying approval of a medical test and surgery that caused plaintiff injuries to become more serious and permanent.

The Appellate Division reversed the Trial Court order granting summary judgment to defendant and dismissing plaintiff’s complaint with prejudice. The Appellate Division stated the record did not adequately explain the circumstances surrounding the alleged delay in plaintiff’s treatment, therefore State Farm was not entitled to summary judgment.

In short, the record showed multiple authorization denials from defendant in respect to MRI and surgical procedures for plaintiff’s injuries. Plaintiff’s orthopedic surgeon wrote his opinions, stating the delay in approving the MRI and surgery left plaintiff with a significant “permanent injury”, and caused a “further worsening of [plaintiff’s] status”.

The Court addressed defendant’s argument that the No-Fault Act, N.J.S.A. 39:6A-1 to - 35 precluded plaintiff’s claim. The Court disagreed with defendant’s assertions and explained the text of the statute relates to payment of benefits after treatment has commenced. The Court examined the viability of plaintiff’s claim and held that there is a good faith obligation implied in every contract, including an insurance policy.

In order to state a claim for damages from the delay in authorizing testing and treatment, plaintiff must show: (1) State Farm had a good faith-obligation in its policy; (2) State Farm unreasonably delayed the authorization and failed to fulfill its contractual obligation; (3) and that the unreasonable delay caused his damages.

While plaintiff did not establish those facts in the record, the record also did not demonstrate that plaintiff cannot prove the claim. Accordingly, State Farm was not entitled to summary judgment as a genuine issue of material fact may exist. The Court remanded the case for further proceedings.

FORMER NOVARTIS EXECUTIVE’S $1.8M WHISTLEBLOWER AWARD AFFIRMED BY APPELLATE DIVISION

Guo v. Novartis Pharmaceuticals, A-5652-18 (N.J. Super. Ct. App. Div. July 25, 2022) (unpub.)

The Appellate Division affirmed jury verdicts that awarded Plaintiff Min Amy Guo $1.8 million on a state Conscientious Employee Protection Act (CEPA) claim and $345,360 to Defendant Novartis on its counterclaim for unjust enrichment.

During Plaintiff Guo’s employment as Senior Director Of Health Economics Outcome Research in the Oncology Department of defendant Novartis, the defendant entered into a corporate integrity agreement requiring policies and procedures with federal law including the False Claims Act (FCA), 31 U.S.C. § 3729 to -33, and Anti-Kickback Statute (AKS), 42 U.S.C. § 1320a-7b(b).

It was plaintiff’s understanding that defendant could violate the AKS by paying a distributor for “a study of negligible scientific value” as a kickback for purchasing and distributing its product. In this context, plaintiff believed a proposed study with the McKesson Corporation and its expedited approval constituted a kickback that would violate federal law. After multiple internal encounters expressing her concerns with the proposed study, plaintiff was eventually terminated for a pattern of transgressions, poor judgment, and misconduct. Plaintiff filed a complaint against defendant, alleging her termination violated both the Conscientious Employee Protection Act and common law.

Following trial, the jury returned a verdict awarding plaintiff $1,816,040 on her CEPA claim and awarded defendant $345,360.79 on its counterclaim for unjust enrichment over Guo’s violation of company policy. Guo appealed from the unjust enrichment verdict while Novartis appealed from Guo’s CEPA claim award as well as the award of $1.5 million in attorney’s fees and costs to Guo. The panel for the Appellate Division affirmed both verdicts from the Law Division.

INSUFFICIENT SHOWING OF ‘EXTRAORDINARY CIRCUMSTANCES’ PRECLUDES A LATE NOTICE OF CLAIM PURSUANT TO TORT CLAIMS ACT

Estate of Barakat v. Roosevelt Care Ctr. at Edison et. al., A-0033-21 (N.J. Super. Ct. App. Div. Jul. 29, 2022) (unpub.)

Following the Law Division’s grant for leave to file a late notice of claim pursuant to a provision of the Tort Claims Act, N.J.S.A. 59:8-9, the Appellate Division reversed the lower court’s decision in an unpublished opinion. In support of the motion for leave to file a late notice of claim, plaintiff Morad, decedent’s son, presented facts in his affidavit that alleged defendant Roosevelt Care Center (RCC) failed to inform him of the cause of his mother’s death, limited his visitation due to the COVID-19 pandemic, and caused devastation as a result of the loss of his mother.

The trial court found plaintiff repeatedly attempted to obtain decedent’s medical records, which were necessary in filing a timely notice of claim, ultimately granting plaintiff’s leave to file a late notice of claim due to extraordinary circumstances. Defendants appealed, arguing the lower court erred in incorrectly pinpointing that claims accrued in January 2021, misapplied the Tort Claims Act, and mistakenly exercised discretion in finding extraordinary circumstances.

The Tort Claims Act states the notice of claim shall be presented no later than the 90th day after the accrual of the cause of action and be forever barred from recovering against a public entity if the claimant fails to file the claim within 90 days notwithstanding exceptions in N.J.S.A. 59:8-9. The exceptions include discretion of a judge of a Superior Court if the party filing a late notice of claim is able to show extraordinary circumstances.

The Appellate Division addressed the accrual date of Morad’s claim was the day of his mother’s death on August 1, 2020, and not the January 2021 date of plaintiff obtaining the medical records. As Morad was active in the ninety days following his mother’s death by communicating with defendants, seeking medical records, and making an application to the Surrogate Court, there is “nothing in the record suggesting [Morad] was unaware of the potential medical malpractice claim or unable to contact counsel to explore legal claims during the ninety-day period.”

While the Tort Claims Act does not explicitly define what constitutes “extraordinary circumstances”, judges assess on a case-by-case determination based on the facts presented. Plaintiff was unable to show sufficient reasons that prevented the filing of a timely notice of claim. As ninety days from August 1, 2020 expired on October 30, 2020, the Appellate Division reversed the grant accordingly.

GOOD CAUSE STANDARD ADDRESSED FOR EXTENDING DISCOVERY

Hollywood Café Diner, Inc. v. Jaffee et. al, ___N.J. Super.__ (App. Div. 2022)

Plaintiff Hollywood Café Diner commenced a legal malpractice action alleging defendants negligently represented the Diner in a case resulting in a $1.5 million settlement for Kevin Fynes, a patron who lost part of his leg in a car crash following a 2012 St. Patrick’s Day “Pub Crawl.” Defendant Jaffee handled the defense for Liberty International Underwriters, the insurer of plaintiff at the time.

Plaintiff alleged defendants breached their professional duties by failing to investigate the accident, to disclose details and to include a confidentiality provision in the settlement. Both parties remained generally inactive throughout the discovery process, eventually requesting extensions of the discovery end date. Finding there had been no exceptional circumstances and there had been 510 days of discovery in the malpractice action, the judge denied the discovery extension. Thereafter, defendants motion for summary judgment arguing plaintiff had not provided an expert opinion regarding the alleged professional negligence was then granted.

Plaintiff appealed contending the judge erred by using the “exceptional circumstances” standard instead of the “good cause” standard in deciding to decline to extend discovery.

Rule 4:24-1(c) permits the parties to extend discovery if written motion is filed “prior to the conclusion of the applicable discovery period.” “If good cause is otherwise show, the court shall enter an order extending discovery.” Id. The Appellate Division held when the court chooses to send out arbitration and trial notices during the discovery period, judges evaluating a timely motion to extend discovery may not utilize the "exceptional circumstances" standard, but rather the judge "shall enter an order extending discovery" upon a showing of "good cause.”

Plaintiff established good cause by properly serving paper discovery demands and dealing with court closures and similar barriers resulting from the COVID-19 pandemic. The Appellate Division reversed and remanded.

DEFENDANTS’ SUMMARY JUDGMENT MOTIONS BASED ON INSUFFICENT EXPERT OPINIONS IN MEDICAL MALPRACTICE ACTION AFFIRMED

Byun et al. v. Englewood Hospital and Medical Center et al., A-4020-19 (N.J. Super. Ct. App. Div. Sept. 2, 2022) (unpub.)

The Appellate Division, in an unpublished opinion, affirmed the trial court’s grant of summary judgment motions for defendants in a medical negligence case, finding plaintiff repeatedly failed to make a prima facie case of medical negligence absent a sufficient expert opinion.

Plaintiff Myong Ae Byun took her daughter, decedent Jackie, to the emergency department at Englewood Hospital per recommendation from Jackie’s neurologist. Jackie had limited ability to communicate verbally due to autism and a history of seizures. After nurses attempted to obtain samples and insert an intravenous line into Jackie’s arm, Jackie pulled the IV out and was flattened down back into the bed by force to reinsert the IV. Jackie then appeared to have a seizure, ultimately resulting in Jackie’s death after failed attempts to intervene by hospital personnel.

Defendants argued plaintiffs failed to comply with the Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29. Defendants’ counsel objected to the sufficiency of plaintiff’s medical experts’ affidavits as certain experts were not board certified in emergency medicine at the time of the alleged malpractice. Defense counsel moved to bar expert testimony for which plaintiffs had not submitted an affidavit of merit and limit the testimony of certain expert witnesses on the grounds the experts had made vague references to staff members not identified and offered opinions on the standards of care applicable to emergency-medicine when they were not qualified to offer those opinions.

On appeal, the Appellate Division addressed that the purpose of the Affidavit of Merit statute is to establish as a threshold matter that a plaintiff’s claim has merit, weeding out meritless lawsuits against licensed professionals early in the litigation process. The Patients First Act establishes the required qualifications of a medical malpractice testifying expert and requires that expert be specialized at the time of the occurrence that is the basis for the malpractice action in the same specialty or subspecialty as defendant physicians. N.J.S.A. 2A:53A-41.

Finding that the trial court judge granted defendants' summary-judgment motions not based on any failure to comply with the Affidavit of Merit statute but because plaintiffs, lacking the expert testimony required to establish medical malpractice, could not prove their case, the Appellate Division affirmed the lower court decision.
NEW JERSEY LAW DIVISION
TRIAL JUDGE RULES FAA NO LONGER PREEMPTS NJLAD PROHIBITIONS OF COMPELLED ARBITRATION IN SEXUAL HARASSMENT SUITS

Sellino v. Galiher et al., ESX-L-8519-2, (N.J. Super. Ct. Law Div. May 25, 2022) (unpub.)

Judge Beacham of the Essex County Superior Court recently denied defendant’s motion to dismiss and compel arbitration. Plaintiff pursued a case relating to a 24 year-long span of sexual harassment from Galiher and his treatment of plaintiff. Plaintiff argued that New Jersey Statute, Section 12.7 of the New Jersey Law Against Discrimination ("NJLAD") is the ruling law. Defendants argued that even with the amendment to the Federal Arbitration Act, Section 12.7 of the NJLAD is still preempted and the mutual arbitration policy is enforceable against the plaintiff’s claim of sexual harassment.

Enacted on March 3, 2022, the Ending Forced Arbitration Act, amends the Federal Arbitration Act to prohibit enforcement of arbitration agreements in sexual harassment disputes. The law states the Act shall apply with any disputed claim that arises or accrues on or after the date of the enactment of the Act.

While the plaintiff’s claims arose before the enactment of the Act, plaintiff argued the Court should decide, as a matter of first impression nationwide, whether the Ending Forced Arbitration Act has removed the bar of preemption from the Anti-Waiver Provision of the NJLAD (Section 12.7). The NJLAD prohibiting compelled arbitration became effective in March 2019.

Defense counsel also asserted that plaintiff manifested consent to the arbitration agreement by clicking yes in a digital click-wrap agreement. The Court noted defendant’s express omission of the five blank lines for signatures as a method of demonstrating assent. When signature lines are blank, defendants must proffer plaintiff’s unmistakable intent and affirmative agreement to arbitrate.

Judge Beacham held that under the Ending Forced Arbitration Act, Section 12.7 is no longer preempted by the Federal Arbitration Act.

LAW DIVISION DECLINES TO ENJOIN DEFENDANT FROM FILING COMPLAINT ALLEGEING SEXUAL ABUSE AGAINST PLAINTIFF’S ESTATE

In the Matter of the Estate of F.W.K., JR. v. M.A-V., No. L-2625-21 (N.J. Super. Aug. 17, 2022)

A Bergen County Superior Court recently declined to enjoin defendant, M.A-V, from filing a complaint alleging sexual abuse of defendant by decedent F.W.K. Asserting they were acting under the fiduciary duty to protect and preserve the assets of the Estate, the executors filed a complaint seeking to prevent public disclosure of the Estate and F.W.K.’s identity in connection with the allegations, as it would be embarrassing for the family members, cause harm for the family’s engineering firm, and could impact the value of the Estate-owned properties.

The Court used the analysis of Crowe v. De Gioia, 90 N.J. 126 (1992), to assess the Estate’s entitlement to the injunction. Plaintiff must demonstrate (1)The injunction is necessary to prevent irreparable harm, (2) The legal rights underlying the plaintiff’s claim are well-settled, (3) The material facts are not in dispute, and (4) A balancing of the equities – the relative hardships to the parties of granting versus denying the relief – favor plaintiff. Id. at 132-134.

Finding the expected harm to follow the publication of the allegations to satisfy the first factor without dispute, the court turned to the second Crowe factor – the legal rights underlying plaintiff’s claim. According to Hammock v. Hoffman-LaRoche Inc., persons seeking to rebut the presumption of access to court records must prove their interest in secrecy outweighs the public’s interest in access. 142 N.J. 356, 375-76 (1995). This burden contains a strictly construed good cause requirement measured through a two-prong test: (1) that disclosure is likely to cause a clearly defined and serious injury; and (2) that the individual interest in privacy substantially outweighs the presumption of open access. Rule 1:38-11(b).

The Court found the statute governing Actions for Sexual Abuse, N.J.S.A. 2A:61B-1, is designed to protect the victim’s rights and contains no suggestion of intent to shield defendants’ identities if the victim chose to proceed publicly. The possible trauma or stigma to the victim is protected by the statute, while trauma or stigma to the defendant is noticeably absent as a factor for consideration. The Court therefore held that the Estate failed to meet the second factor in the Crowe analysis, finding no reason to address the remaining factors. 
COURT UPDATE
ATTORNEY-CONDUCTED VOIR DIRE PILOT PROGRAM TO BEGIN IN SEPTEMBER

The New Jersey State Supreme Court issued an order authorizing the pilot program for Attorney-Conducted Voir Dire (ACVD) in Bergen, Camden, and Middlesex Vicinages starting on or after September 1, 2022.

After the Court called for a Judicial Conference on Jury Selection, the Conference examined areas for improvement and compared New Jersey’s method of jury selection with other jurisdictions. The Conference determined that New Jersey is one of a minority of state court jurisdictions that continues to use a judge-led system of voir dire. Other jurisdictions use the ACVD approach, generally modeled as attorneys questioning jurors as a group under the oversight of a judge who may intervene if appropriate. Scholars, jurists, and practitioners advocating for ACVD believe the attorney-led process reduces the effects of discrimination and bias in jury selection.

The pilot program for Attorney-Conducted Voir Dire will explore its potential benefits. The eligibility for participation at the outset will be limited to single-defendant criminal matters and require the consent of both the prosecuting attorney and defense counsel. The ACVD Pilot program will give the parties an expanded role in the direct questioning of prospective jurors. The number of peremptory challenges allotted to each party will be reduced.

The jury verdict in the pilot program will have the same force and effect as a jury verdict outside of the program.

NEW COURT RULE AND AMENDMENTS AIMED TOWARDS REDUCING BIAS IN JURY SELECTION

Amendments to Rules 1:8-3. Examination of Jurors; Challenges, 1:8-5. Availability of Petit Jury List, and 1:38-5. Administrative Records Excluded from Public Access of the New Jersey Court Rules are effective September 1, 2022.

The amendment to Rule 1:8-3 requires the party challenging the juror to state the basis for the challenge and permits the other party to state their position. “If the court finds there is a reasonable basis to doubt that the juror would be fair and impartial, the court shall grant the for-cause challenge and state the reason for its determination.”

Rule 1:8-5 is expanded to include jurors who have been disqualified, excused, or deferred in addition to jurors scheduled to report for selection to the petit jury list. The lists are prohibited from distribution to anyone who is not a party to the case.

Rule 1:38-5 excludes records used to compile juror source lists, the list prepared, qualification questionnaires, and any judicially mandated questionnaire from public access.

A new Rule 1:8-3A. Reduction of Bias in the Exercise of Peremptory Challenges is effective starting January 1, 2021. The Rule states a party may exercise a peremptory challenge for any reason in a civil and criminal trial except to remove a prospective juror based on “actual or perceived membership in a group protected under the United States or New Jersey Constitutions or the New Jersey Law Against Discrimination.”

The Official Comment states the Rule is intended to cover and future amendments to the NJLAD statue protecting discrimination on the basis of race or color, religion or creed, national origin, nationality, ancestry, sex, pregnancy, breastfeeding, sexual orientation, gender identity, disability, marital status, and liability for military service.
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 [email protected] or 973-912-5222.
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