HKMP E-Letter

March 2020
HKMP OBTAINS FINDING OF NO CAUSE FOR ACTION IN NY DIVISION OF HUMAN RIGHTS ADA/AGE DISCRIMINATION CLAIM
HKMP partners Mark S. Kundla and John S. Favate successfully represented a multinational manufacturing company before the New York State Division of Human Rights in a claim alleging discrimination on the basis of age and disability in violation of the New York Human Rights Law. After conducting an investigation and contested hearing involving six witnesses, the Division returned a decision of no probable cause.

The claimant was a 54-year-old machine operator who had been with the company and its predecessor company for 32 years. He alleged that after making complaints about his working conditions, he was reassigned to a machine that aggravated a pre-existing back injury. Upon returning from medical leave he was immediately terminated. The claimant asserted that contentions of poor job performance were pretextual, and that in fact he was terminated because the company wanted to replace him with a younger, healthier, employee who would not complain about working conditions.

The company was able to provide documentary and testimonial evidence to demonstrate that throughout his employment, the claimant was intermittently a problem employee who could not get along with other employees, and refused to follow direction. Although he would have stretches of acceptable performance, there were frequent episodes that required warnings and discipline, primarily for interpersonal disputes with co-employees and supervisors.

Shortly before the aggravation of his back injury, the claimant had received a negative review, based on issues with co-employees. After his review, he confronted several of his co-employees about their complaints to management about him. One of these employees complained to management that he felt intimidated.

Based on this, management determined to terminate plaintiff. However, before the termination process could be completed, plaintiff complained of the aggravation of the back injury and went on medical leave.

After reviewing copious documentary evidence and interviewing numerous witnesses, the hearing officer found that there was “no probable cause to conclude that the complainant was unlawfully discriminated based on disability and/or age.”
NEW JERSEY SUPREME COURT RULES THAT DEEMER STATUTE REQUIRES COVERAGE FOR STANDARD POLICY LIMITS
New Jersey historically required, by statute, that automobile drivers obtain bodily injury liability insurance of at least $15,000 per individual and $30,000 per accident. For affordability purposes, the statutes were amended to permit the purchase of a “basic” policy with optional $10,000 bodily injury coverage, or a “special” policy with no bodily injury coverage. Courts have since addressed on a number of occasions the effect of these statutory amendments. For instance, HKMP attorneys George Hardin and Arthur Povelones represented the Insurance Council of New Jersey as amicus curiae before the New Jersey Supreme Court in a case finding that, when a “basic” policy with the $10,000 optional bodily injury coverage was rescinded, innocent third parties were entitled to pursue only the $10,000 rescinded limit, not the $15,000 “standard” limit.  Citizens United Reciprocal Exchange v. Perez , 223 N.J. 143 (2015).

In Felix v. Richards , No. 081799 (N.J. Feb. 26, 2020), the New Jersey Supreme Court, in a 3-2 decision, held that a policy issued by an insurer authorized to do business in New Jersey to a Florida resident without any limit of liability for bodily injury was deemed to include the minimum limits of $15,000/30,000 required for a “standard” policy in New Jersey for bodily injury to a New Jersey resident. The majority determined that the references to minimum coverage in the “deemer” statute were to statutes setting forth the minimum limits under “standard” policies, and did not incorporate the statutes authorizing “basic” and “special” policies with no bodily injury coverage. The majority concluded that the requirement of “standard” limits for out-of-state policies but not in-state policies did not violate the equal protection clause of the U.S. Constitution, because insurers authorized to do business in New Jersey are obligated to offer “standard” limits to New Jersey drivers, although New Jersey drivers have the option to purchase policies without bodily injury coverage. The dissent would have found that requiring “standard” limits under the “deemer” statute unconstitutionally distinguished between in-state and out-of-state drivers.
HKMP OBTAINS DEFENSE VERDICT FOR COMMERCIAL PROPERTY OWNER IN SLIP AND FALL ON INTERIOR STAIRS
HKMP's Todd C. Landis successfully defended a claim by a plaintiff who alleged a slip and fall on interior stairs at the insured’s two-family commercial property.  The plaintiff alleged improper installation and maintenance of the stairs, stair treads, and railing, as well as a failure to rectify the accumulation of liquid on the foyer floor. The plaintiff’s alleged injuries included a displaced right distal fibula fracture surgically reduced with a plate and screws.

The case was defended based upon a lack of negligence by the insured property owner in the maintenance and inspection of the property.  

After a six-day trial, a unanimous Bergen County jury returned a defense verdict on behalf of the insured property owner, finding that the property owner was not negligent. The jury apportioned 30% liability on the co-defendant tenant and 70% on the plaintiff. 
NEW JERSEY APPELLATE DIVISION FINDS LEGAL MALPRACTICE CLAIM BASED ON THIRTEEN-YEAR-OLD ATTORNEY ADVICE NOT TIME-BARRED
In an unpublished decision, Jones v. Viola , A-1810-18T4 (App. Div. Feb. 27, 2020), the New Jersey Appellate Division vacated summary judgment in favor of a defendant attorney in a legal malpractice case filed in 2016 concerning legal advice provided in 2003. The plaintiff, the custodial parent of two adult autistic children, had been represented by the attorney in a divorce proceeding. Pursuant to a 2003 settlement agreement in that proceeding, the plaintiff received alimony from her ex-spouse for nine years. In 2012, plaintiff, through new counsel, filed a motion for extension of alimony, which was denied. Plaintiff brought a legal malpractice case in 2016 against her prior attorney in the divorce proceeding, on the theory that the attorney had represented to her that she would be entitled to the extension of alimony and that the negotiation of an agreement with a fixed alimony term deviated from the attorney’s standard of care. Acknowledging that the defendant attorney was being forced to defend advice provided to a client more than a decade prior, the Appellate Division still found the malpractice claim accrued when plaintiff was denied a motion to extend her alimony period in 2012 since that was when “her expectation of continued alimony was dashed.” The Appellate Division also rejected an equitable estoppel argument that the malpractice claim was precluded because plaintiff had agreed to the settlement terms for her divorce. The Court found it was reasonably possible that plaintiff thought the settlement was fair and reasonable only because of counsel’s advice, and reasonably waited to modify the agreement until 2012, when the alimony term was to expire.
RECENT RULING WIDENS NEW YORK APPELLATE DEPARTMENT SPLIT ON MEDICAL MALPRACTICE SUMMARY JUDGMENT EVIDENCE
On a motion for summary judgment in New York medical malpractice cases, a defendant has the initial burden of showing that the defendant did not deviate from the applicable standard of care, and/or that the alleged deviation was not a proximate cause of any injury. If a defendant only makes a prima facie showing on one of those two issues, New York Appellate Departments are split regarding what a plaintiff must demonstrate in order to defeat summary judgment. The First and Third Departments require a plaintiff to present medical evidence both that the defendant departed from the applicable standard of care and that the deviation was a proximate cause of the injury.  Kristal R. v. Nichter , 115 A.D.3d 409, 411-12 (1 st Dep’t 2014); Longtemps v. Oliva , 110 A.D.3d 1316, 1317-18 (3 rd Dep’t 2013). The Second Department requires a plaintiff only to present medical evidence on the issue that defendant had made the prima facie showing.  Stukas v. Streiter , 83 A.D.3d 18, 24-25 (2 nd Dep’t 2011).

Until recently, the Fourth Department had required a plaintiff to make a showing as to both the deviation and the proximate cause.  O’Shea v. Buffalo Med. Group, P.C. , 64 A.D.3d 1140, 1140 (4 th Dep’t 2009). However, in Bubar v. Brodman , 177 A.D.3d 1358 (4 th Dep’t), rehearing and appeal denied, 2020 N.Y. App. Div. LEXIS 726 (4 th Dep’t Jan. 31, 2020), the Fourth Department ruled that O’Shea no longer would be followed, and that a plaintiff need only present rebutting medical evidence on the issue that the defendant makes a prima facie showing.

Justice Fahey of the New York Court of Appeals previously remarked on the split among the Appellate Departments on this issue, and signaled his belief that the standard adopted by the Second Department, and now the Fourth, was the proper approach.  Pullman v. Silverman , 28 N.Y.3d 1060, 1065 (2016). Unless and until the Court of Appeals determines to decide this issue, careful consideration should be given to the appellate venue of the case and the issues to be raised in a summary judgment motion.
NEW JERSEY JURY AWARDS $750 MILLION
IN PUNITIVE DAMAGES AGAINST JOHNSON & JOHNSON IN ASBESTOS BODILY INJURY CASE, REDUCED TO $187 MILLION BY TRIAL JUDGE
On February 6, 2020, a second jury impaneled in the case of Barden, et al. v. Brenntag N. Am. , et al., docket no. MID-L-1809-17, decided punitive damages against Johnson & Johnson. In September 2019, the first jury had awarded the four plaintiffs, all of whom were suffering from mesothelioma, a combined $37.3 million in compensatory damages against Johnson & Johnson. The first jury unanimously found that the plaintiffs were exposed to asbestos from their use of Johnson & Johnson baby powder. 

During the course of the punitive trial, the plaintiffs called as a witness the current Johnson & Johnson CEO, who had previously made statements defending the safety of Johnson & Johnson talc products. During examination by plaintiff counsel, the CEO acknowledged that he had not personally read the talc-testing documents upon which his statements were allegedly made, and had relied upon Johnson & Johnson experts who advised that the talc powder was asbestos-free. The CEO also testified in the punitive trial that he had exercised stock options yielding pretax net profits of approximately $22 million on the same day a newspaper reporter had contacted the company about an article being prepared regarding Johnson & Johnson baby powder, including historic internal company documents discussing asbestos found to have been contained in the powder. The CEO had asserted that the stock option exercise was pre-planned and that he was unaware of the contact from the reporter when the exercise was completed.

After the jury awarded $750 million in punitive damages, the Hon. Ana Viscomi, who presided over both phases of the trial, molded the punitive damages verdict pursuant to New Jersey law to five times the $37.3 million compensatory verdict awarded during the first trial phase.

Johnson & Johnson has filed a motion to set aside the punitive damage verdict, and has vowed to appeal both the September 2019 compensatory verdict and the February 2020 punitive damage verdict.

NEW JERSEY SUPREME COURT FINDS COMMERCIAL TENANT WITH COMPLETE CONTROL OF PREMISES HAS SOLE DUTY TO REMOVE SNOW AND ICE
In Shields v. Ramslee Motors (No. 081969, N.J. Jan. 23, 2020), the New Jersey Supreme Court addressed the issue of whether the owner of a commercial property owes its tenant’s invitee a duty to clear snow and ice from the property’s driveway while the property is in the sole possession and control of the tenant.

The plaintiff in Shields alleged that, after delivering an envelope to the tenant, he slipped and fell on snow and ice on the driveway leading back to the sidewalk, sustaining injuries. The tenant’s lease with the property owner provided that “Tenant shall be solely responsible for the maintenance and repair of the land and any structure placed on the premises… as if Tenant were the de facto owner of the leased premises.” The tenant acknowledged responsibility for clearing snow and ice at the property, and maintained equipment at the property to do so.

The Supreme Court found that the lease agreement expressly made the tenant responsible for the maintenance of the leased premises, including the removal of snow and ice. The Supreme Court declined to find that the property owner had any non-delegable duty, distinguishing an interior driveway where control rested solely with the tenant from an abutting public sidewalk.

In a concurring and dissenting opinion, Justice Albin stated that a property owner should have the duty to make general repairs if it retains the right to enter the premises. He concluded that judgment in favor of the property owner in this case nevertheless was proper, because the snow and ice at issue was a transient condition that the property owner did not have a reasonable opportunity to remedy.
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