Posted on Fri, Apr 12, 2013 @ 10:15 AM
Task Force on Violence Urges More Controls on Guns and Violent Videos
A task force set up by Gov. Chris Christie after last December's mass shooting at Sandy Hook Elementary School recommends moderate changes to New Jerseys' gun laws, restriction of sales of violent video game and enhancement of school security programs in an effort to curb violence.
The New Jersey SAFE Task Force on Gun Protection, Addiction, Mental Health and Families and Education Safety released a set of 50 recommendations on Wednesday that it said were "aspirational in their reach and practical in their implementation."
The most awaited recommendations from the task force, chaired by former Attorney General and Supreme Court Justice Peter Verniero and former Attorney General John Degnan, concerned further restrictions on sale, purchase and ownership of firearms.
The task force said the state's existing gun laws are in need of some updating, but did not urge major changes. Gun control advocates concede that New Jersey already has the second most restrictive gun laws in the United States, behind only California.
"The Newtown tragedy has given a new sense of urgency to a longstanding debate on how best to prevent senseless gun violence," the task force said in its 95-page report. "Public officials and concerned citizens are rightly scrutinizing state and federal gun laws in the hope of finding the optimal balance between the need to restrict access to firearms and the right of individuals to keep and bear arms under the Second Amendment.
"We need to make certain, however, that new or revised gun laws are carefully vetted, and are not only well-intentioned but are actually likely to reduce the risk of gun violence."
Chiefly, the task force recommends that the state take steps to:
• outlaw "straw purchases" in which someone buys a firearm for someone who otherwise would be ineligible to own one,
• conduct background checks of gun buyers,
• screen prospective gun purchasers for mental health issues if there are signs of mental illness,
• restrict firearm ownership for those who have been committed to mental institutions,
• further enhance criminal penalties for all crimes committed with a firearm,
• require frequently updated firearm purchaser license with photographs, and
• permit gun owners to be held civilly liable if they fail to take precautions in storing their weapons and those weapons are used to kill or injure another party.
The task force said it could not reach a consensus on whether there should be further restrictions on the size of ammunition magazines, currently limited in New Jersey to 15 rounds.
As for violent video games, options are somewhat limited because the U.S. Supreme Court's ruling in Brown v. Entertainment Merchants Association, 131 S.Ct. 2729 (2011). There, the court said video games are protected by the First Amendment and struck down a California law aimed at banning the sale of certain violent video games to minors without parental supervision.
"With regard to the research studies finding a causal link between virtual violence and actual violence, the Supreme Court found that those studies were not compelling. Indeed, the Court expressed that the studies 'do not prove that violent video games cause minors to act aggressively,' but merely suggest some correlation and suffer from significant flaws in methodology. Thus, absent stronger proof of causation, the Court would not take video games outside of the protection of the First Amendment," the task force said.
"Thus, the current state of the law regarding violent media further informs this Task Force's conclusion that there is currently no consensus with regard to the causal effect of violent media on real-world behavior. That said, it still appears that exposure to violent media can be a risk factor."
The task force recommends that the Legislature examine whether minors to be accompanied by an adult when buying video games with an "M," or mature, or AO, adults only, rating, and whether merchants can require buyers to present some form of identification when purchasing M or AO video games.
Lastly, the task force said law enforcement and school boards need to take steps to ensure that individual schools are made more secure, and that law enforcement continue with efforts to reduce gang violence in urban areas.
Christie is expected to issue a set of his own recommendations, based on the report, within seven to 10 days.
Said Assembly Speaker Sheila Oliver, D-Essex: "The Assembly will certainly review this report, but one thing that's immediately clear is that many of the themes behind the 22-bill Assembly gun violence prevention package can be found in this report.
"It's a shame Gov. Christie didn't openly embrace and support the Assembly package. Had he done so, those bills could have been law by now. We continue to hope the governor agrees to support the Assembly plan, along of course with any other good ideas that are being proposed by this task force."
The Senate may consider the Assembly bills in the coming weeks.
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New Jersey Law Journal 4/12/13
Posted on Mon, Apr 01, 2013 @ 02:11 PM
Man stranded on Disney’s ‘It’s a Small World’ ride wins pain and suffering damages
A disabled man trapped on a ride at Disneyland as music blared overhead has won an $8,000 damages award in federal court.
The nightmare for Jose Martinez began the day after Thanksgiving in 2009 when his and his wife's ride on "It's a Small World" was coming to an end. The couple and other amusement park visitors were in the "Goodbye Room" when the ride broke down. Other riders were evacuated, but Martinez, who is paralyzed and needs a wheelchair, was reportedly left in the car while "It's a Small World" music played in a loop.
The Los Angeles Times and San Francisco Chronicle have stories.
David Geffen, who represented Martinez, told the papers that his client suffers from panic attacks and high blood pressure, both of which were aggravated as he sat in the boat. Geffen said rather than call firefighters to evacuate Martinez, park officials waited for the ride to be fixed. Martinez was trapped for about 30 minutes, then treated at a Disneyland first aid station.
Disneyland issued a statement that it believes it provided appropriate assistance and was disappointed the court didn't fully agree. Martinez was awarded $4,000 for pain and suffering and $4,000 for other disability access violations, according to the LA Times.
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Posted on Mon, Mar 25, 2013 @ 02:22 PM
CLASS-ACTION PLAINTIFFS DOUSED BY JUSTICES IN STANDARD FIRE CASE
Plaintiffs' lawyers in proposed class actions cannot avoid federal courts by promising to seek less than $5 million in damages, according to a unanimous U.S. Supreme Court on Tuesday.
"Our reason is a simple one," wrote Justice Stephen Breyer in Standard Fire Insurance v. Knowles. "Stipulations must be binding."
A plaintiff who files a proposed class action, he added, "cannot legally bind members of the proposed class before the class is certified."
The case was closely watched by the nation's business community because of its potential implications for removals of class actions in state courts to what are generally viewed as more business-friendly federal courts.
The issue of the effect of the stipulation arose in a proposed class action brought in Arkansas state court by Greg Knowles against Standard Fire.
Knowles claimed that when the company made certain homeowner's insurance loss payments, it unlawfully failed to include a general contractor fee.
He sought to certify a class of "hundreds, and possibly thousands" of Arkansas policyholders and he included an affidavit stipulating that he would not seek damages for the class in excess of $5 million.
Standard Fire removed the case to federal district court by relying on the $5 million amount-in-controversy threshold for federal jurisdiction in the Class Action Fairness Act (CAFA).
The trial judge found that the matter in controversy was slightly more than $5 million, but because of the stipulation, the judge sent the case back to state court.
The U.S. Court of Appeals for the Eighth Circuit declined to hear the company's appeal.
Breyer explained that because Knowles' precertification stipulation bound no one but himself, he had not reduced the value of the absent class members' claims.
Theodore Boutrous Jr. of Gibson, Dunn & Crutcher, who argued the case for Standard Fire, said in a statement that the decision "enforces the clear terms of the Class Action Fairness Act to ensure that class-action plaintiffs cannot manipulate the system by slicing and dicing claims in order to defeat federal jurisdiction, and it will prevent the state-court class-action abuses that Congress intended to prohibit."
Not surprisingly, class-action defense lawyers agreed.
John Beisner, co-head of the mass torts and insurance litigation group at Skadden, Arps, Slate, Meagher & Flom, said, "Today's ruling soundly rejects the trick of attorneys unilaterally stipulating to limited damages in an effort to avoid federal jurisdiction over class actions.
"[T]he Court recognizes that in enacting the Class Action Fairness Act, Congress intended that in most instances, federal courts, not state court, will handle class actions with interstate implications," he continued.
And Archis Parasharami, co-chairman of Mayer Brown's consumer litigation and class-action practice, said, "The Court correctly recognized that a named plaintiff in a class action cannot, prior to class certification, place artificial limits on the claims of absent class members.
"Indeed, the Court noted that to do so might make the class representative an 'inadequate' one. Given the Court's unanimous recognition of CAFA's purposes, hopefully federal district courts and the courts of appeal will take a closer look at other efforts by plaintiffs to perform similar end runs around CAFA," he added.
Knowles' high court counsel, David Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel, had argued that many of the arguments made by Standard Fire and its supporters were "offensive ad hominem attacks, plain and simple."
A stipulation made in good faith and enforceable under state law, he contended, was controlling on the amount-in-controversy issue.
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Posted on Tue, Mar 05, 2013 @ 04:24 PM
SUIT OVER DERAILED FREIGHT CARS THAT SPEWED TOXIC GAS FILED IN U.S. COURT
The first lawsuits have been filed in the aftermath of the Nov. 30 freight train derailment in Paulsboro that sent container cars cascading off a bridge over the Mantua Creek and released 23,000 gallons of a toxic gas.
The first, Breeman v. Consolidated Rail Corp., 12-cv-7468, was filed Dec. 6 in federal court by borough resident Alice Breeman, on behalf of herself and her three children.
She alleges that Consolidated Rail Corporation (Conrail), Norfolk Southern Railway Co. and CSX Transportation Inc. failed to inspect or properly maintain the 1873-vintage East Jefferson Street bridge, which they own, and that a dispatcher allowed the train to proceed despite a red signal.
Seven cars went off the tracks and three went into the water as the bridge collapsed. One of four cars containing vinyl chloride — a toxic, flammable, and carcinogenic gas — began leaking. After it was detected in the air, local roads, schools and other buildings were shut down, and some people went to the hospital complaining of respiratory problems.
Authorities evacuated 680 people from 204 homes within a 12-block radius. Breeman lives nearby, though not within the evacuation zone, and moved out of her home for a few days, says one of her lawyers, Mitchell Kaye, of Coffey, Kaye, Myers & Olley in Bala Cynwyd, Pa.
Breeman and her children, all under 8 years old, allegedly came into contact with, ingested and inhaled vinyl chloride and other dangerous and toxic fumes and substances. She asserts she suffered bodily injury to her eyes, skin, respiratory system, internal organs and other parts, neurological damage and increased her chances of developing cancer. The “fears associated with that,” have allegedly caused “severe physical, emotional and psychological suffering.”
Kaye says Breeman has been receiving medical treatment for breathing problems and headaches that doctors have attributed to vinyl chloride. “What makes the case so scary” is that she does not know what the long-term effects will be, he says, adding she will probably ask for medical monitoring. He declines comment on the children’s condition.
The U.S. Environmental Protection Agency, classifies vinyl chloride, which is used to make polyvinyl chloride and vinyl products, as a Group A human carcinogen. Short-term exposure to high levels in the air has resulted in central nervous system effects such as dizziness, drowsiness and headaches in humans. Long-term exposure through inhalation or oral contact has resulted in liver damage, and cancer is a “major concern,” the EPA says.
Breeman is seeking $150,000 in compensatory damages for herself and each child. She claims her earnings and earning capacity have been impacted and she has incurred and will incur medical expenses for herself and her children.
The complaint also asks for $10 million apiece in punitive damages for what Kaye calls reckless and outrageous behavior by the defendants.
Two more suits, both putative class actions, have since been brought against Conrail, filed by Evan Smith of Brodsky & Smith in Cherry Hill on Dec. 11 and 13.
All three suits have been assigned to U.S. District Judge Robert Kugler and U.S. Magistrate Judge Karen Williams, both sitting in Camden.
Breeman’s complaint describes a history of problems with the East Jefferson Street bridge, which swivels to allow boats to pass and must be realigned with the tracks so that rail traffic can resume. It accrued 23 “trouble tickets” in the year leading up the derailment, including nine in the 30 days or so prior.
Eight hours before the accident, another train crew reported a malfunction, the complaint says. In addition, the defendants failed to make the last quarterly inspection, due for September, and, to save money, replaced the human bridge operator with a remote system.
Conrail spokesman Michael Hotra says it will respond to the allegations “in an appropriate place and at an appropriate time” and the “focus today is on providing assistance to the Paulsboro community and working with the Unified Command to manage this incident.”
The Unified Command refers to a coordinated response to the derailment involving the U.S. Coast Guard, the New Jersey Department of Environmental Protection and Office of Emergency Management, the Paulsboro Fire Department and Conrail.
Hotra says there has been no determination of the cause of the derailment or that it was a bridge collapse and that Conrail is cooperating fully with an ongoing investigation by the National Transportation Safety Board.
The NTSB announced on Dec. 7 that it had finished its on-the-scene work after collecting hundreds of photographs, videos, reports and records, completing mechanical inspections of the locomotives and cars and interviewing Conrail employees, witnesses and first responders. It plans to issue a preliminary report by Dec. 21.
Paulsboro evacuees began returning home on Dec. 7, after house-by-house tests showed no hazard. As of Tuesday, only 30 people from the 11 homes closest to the bridge had not returned. They will not do so until the last of the damaged cars and debris are removed with the help of a 150-ton crane.
Kaye, whose local counsel is Michael Ringold, of Dansky Katz Ringold York in Marlton, says he is getting calls about the matter from other potential clients as well as attorneys and expects to bring additional lawsuits.
He says he filed in federal court because there was diversity jurisdiction and Conrail would likely have removed the case anyway. A state court action risked a change-of-venue motion due to the extensive media coverage of the derailment, while the federal court in Camden has a broad enough jury base to ensure an impartial panel, he adds.
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Posted on Sat, Mar 02, 2013 @ 07:03 PM
Busch Beers Pack Lighter Buzz Than Labeled, Lawsuits Allege
Beer drinkers left flat by Anheuser-Busch brews are suing in federal courts in five states, claiming the products' labels exaggerate alcohol content.
Putative class-action suits, seeking damages of $5 million or more, were filed this week in Camden, Philadelphia, Cleveland and Denver and on Feb. 22 in San Francisco, and others may be bubbling up.
Eleven beers, including Budweiser and Michelob varieties, are cited as overstating alcohol content, allegedly verified by former employees who said that Anheuser-Busch routinely watered down the brews prior to bottling.
Lead plaintiff lawyer Corey Bennett, of the Mills Law Firm in San Rafael, Calif., says alcohol content was overstated by 3 to 8 percent. The true content for Michelob Ultra, for example, is 3.8 percent to 4.1 percent, compared with 4.2 percent on the label, he says.
Other beers cited in the complaints are Black Crown, Bud Ice, Bud Light Lime, Bud Light Platinum, Busch Ice, King Cobra, Natural Ice and Hurricane High Gravity Lager.
The named plaintiff in the Camden suit, Brian Wilson of Gloucester Township, claims he bought a case of Michelob Ultra monthly but would not have done so had he known the labeled alcohol content was inaccurate.
His suit, Wilson v. Anheuser-Busch Companies, 13-cv-01122, filed Monday, seeks to enjoin Anheuser-Busch from mislabeling and to order it to pay for a corrective advertising campaign.
Wilson raises claims under New Jersey's Consumer Fraud Act and the federal Magnusson-Moss Warranty Act and common law and equitable claims, such as breach of implied warranty of merchantability and unjust enrichment.
He contends that Anheuser-Busch began watering down its alcohol content to below the percentage stated on labels after it merged in June 2008 with InBev SA, a beer maker in Belgium.
Anheuser-Busch manufacturing facilities allegedly are equipped with instruments known as Anton-Paar meters that can determine alcohol content to within .01 percent of a desired level.
"If AB chose to, it could use its Anton-Paar meters to target the exact alcohol content of its finished products to conform to the representation on its labels," the Wilson complaint claims. "Conversely, since AB knows the precise alcohol content on each of its products, it could conform its labels for each such product to accurately state that content."
Anheuser-Busch called the lawsuits "groundless" and the allegations "completely false." Peter Kraemer, vice president of brewing and supply, said, "Our beers are in full compliance with all alcohol labeling laws. We proudly adhere to the highest standards in brewing our beers, which have made them the best-selling in the U.S. and the world."
Wilson's lawyer, David Senoff of Caroselli, Beachler, McTiernan & Conboy of Philadelphia, declined comment.
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New Jersey Law Journal 2/27/13
Posted on Wed, Feb 20, 2013 @ 03:07 PM
MERCK TO PAY $688M TO END SUITS ALLEGING IT CONCEALED VYTORIN DATA
Merck & Co. has agreed to pay $688 million to settle two shareholder class actions in federal court in Newark claiming it made false and misleading statements about the efficacy of cholesterol-reducing drug Vytorin. The settlement, announced Thursday, includes $215 million for class members in a suit against Merck and $473 million for the class in a suit against Schering-Plough Corp., which merged with Merck in 2009. The suits claimed that the defendants delayed for two years disclosure of clinical trial results involving Vytorin, a combination of the drugs Zetia and simvastatin.
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Posted on Tue, Feb 19, 2013 @ 03:27 PM
New Jersey will receive $1.9 million as part of a multistate settlement with the Toyota Motor Co. that resolves allegations the company concealed safety issues related to sudden, unintended acceleration in vehicles it manufactured and sold, state Attorney General Jeffrey S. Chiesa said Thursday.
As a result of the New Jersey-led investigation, Toyota has agreed to pay a total of $29 million to 29 states and one U.S. territory, and to make changes in both its corporate culture and corporate chain of command designed to help avoid such situations in the future.
A complaint filed Thursday, along with a final consent judgment documenting the settlement, alleges that Toyota engaged in unfair and deceptive practices by failing to report a known safety issue — a tendency of certain Toyota and Lexus models to accelerate unexpectedly, Chiesa said.
“This is an important settlement, not only because of the dollars, but because the terms are designed to help make Toyota more accountable, responsive and vigilant regarding vehicle safety issues,” Chiesa said.
“Going forward, the corporate changes to which Toyota has committed should go a long way toward averting similar problems in the future, and the requirement that safety-related advertising claims be supported by sound engineering data will provide an added layer of consumer protection.”
As part of the settlement, Toyota has agreed to significantly change the safety culture within the company’s stateside operations. Toyota will ensure that officials and officers of its U.S. operations have timely access to information, as well as the authority to fully participate in all decisions affecting the safe operation of Toyota vehicles advertised and sold in this country. The requested changes also are expected to improve safety-related communications between Toyota’s holdings in the U.S. and Toyota’s other global holdings.
In addition to the corporate changes to which Toyota has agreed, the company is restricted under the settlement from promoting the safety of its vehicles without sound engineering data to support such claims.
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Posted on Tue, Feb 05, 2013 @ 02:59 PM
SUIT AGAINST FORD OVER GAS TANKS PRONE TO RUSTING CAN GO FORWARD
ord Motor Co. may have to stand trial in a putative class action over rusting fuel tanks in certain of its vans and pickup trucks. A federal judge in Newark declined to dismiss claims for breach of express warranty and breach of the implied covenant of good faith and fair dealing, though he dismissed counts of common-law fraud, violation of the New Jersey Consumer Fraud Act and breach of the implied warranty of merchantability. The suit, Coba v. Ford Motor Co., 12-cv-1622, alleges the tanks suffer from delamination, in which their inner lining flakes off, allowing rust particles from the tank to become lodged in the fuel lines, fuel filter and fuel injection system.
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Posted on Mon, Jan 21, 2013 @ 12:50 PM
GANGSTER LIFE TOO COMMON TO COPYRIGHT, CIRCUIT SAYS IN RULING FOR 50 CENT
Gang life marked by death and prison is a common theme not subject to copyright, the U.S. Court of Appeals for the Third Circuit held in affirming dismissal of a suit by an author who claimed recording artist 50 Cent stole from his autobiography. The "story of an angry and wronged protagonist who turns to a life of violence and crime has long been part of the public domain," the court ruled in Winstead v. Jackson, 11-3771. Shadrach Winstead of Newark — author of Preacher's Son — But the Streets Turned Me Into A Gangster — alleged that 50 Cent, a.k.a. Curtis Jackson, used plot lines and dialogue from the book in "Before I Self-Destruct," a 2009 CD and DVD.
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Posted on Sat, Jan 19, 2013 @ 12:36 PM
WAL-MART HELD LIABLE FOR INJURY OCCURRING BEYOND ITS PROPERTY
The Appellate Division upheld a personal-injury verdict against Wal-Mart for a contractor's slip and fall in an area the store wasn't contractually obligated to maintain. Imposing liability on Wal-Mart "advances important policy interests by fostering the land occupier's constant vigilance" and "encourages a business owner ... to alert the contractually responsible entity about hazardous conditions," the court said in Nielsen v. Wal-Mart Store #2171, A-2790-11, taking exception to another panel that two months ago declined to extend a commercial tenant's liability to a shopping center's common parking area.
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