A state appeals court on Monday vacated a $7.4 million judgment for a pedestrian hit by a driver who had been drinking at a pool party at an apartment complex.
The judges, in Lau v. Seabring Associates, A-3864-10, found the trial court had given erroneous charges to the jury on social host liability and respondeat superior.
Henry Lau, now 69, was walking his dog in the early morning on Dec. 27, 2006, when hit by drunken driver David Figueroa, who had been drinking during an after-hours pool party at the Excelsior, a Hackensack apartment complex owned by Seabring.
Figueroa's blood-alcohol concentration was .192 percent, far in excess of the legal limit of .08. He pleaded guilty to third-degree assault by auto and fourth-degree leaving the scene of an accident, and was sentenced to five years' probation and 180 hours of community service.
Lau, a cardiologist at Hackensack University Medical Center, broke both legs, his pelvis, back and several ribs. He was unable to return to work.
A Bergen County jury awarded Lau $5 million and his wife $350,000 per quod. It also awarded Lau $1.73 million, under a stipulation by the parties, for lost future wages, and the verdict was molded to include $365,000 for past and future medical expenses.
The jury apportioned 55 percent of liability to Seabring, 25 percent to Figueroa and 20 percent to Gabriel Ortiz, an Excelsior front-desk concierge who let the party-goers enter the building, left the door to the pool unlocked and permitted consumption of alcohol despite a no-drinking policy at the pool.
Figueroa settled for $15,000 before trial and Ortiz defaulted.
A judgment for the entire $7.4 million in damages, minus the $15,000 settlement paid by Figueroa, plus $1.2 million in pre-judgment interest, was entered against Seabring under the joint and several liability statute.
Seabring's 55 percent share, and its respondeat superior liability for Ortiz's 20 percent share, placed it over the 60 percent threshold for full liability under the statute, according to Lau's attorney.
On appeal, Seabring argued that Superior Court Judge Alexander Carver III wrongly submitted the questions of respondeat superior liability and social host liability to the jury and gave erroneous instructions on the issues.
In their per curiam decision, Appellate Division Judges Susan Reisner, Harris and Margaret Hayden said the factual picture was "insufficient to present the jury with a viable dispute regarding vicarious liability based on respondeat superior."
The decision by Ortiz, a member of the security staff, to admit trespassers was clearly outside the scope of his employment as it "directly undermined the security of the building that Ortiz was hired to provide," the panel said.
The judges further held the "record does not warrant the inclusion of a stand-alone charge on a social host theory of liability because Seabring was not a social host. It was an employer."
Figueroa was only 20 at the time of the party and liability for providing alcohol for people under 21 is governed by traditional negligence principles under common law, not social host liability, the panel said.
In addition, the pool party was not sponsored or condoned by Seabring, and there was no evidence it provided the alcohol, the panel said.
Seabring asked the appeals court to find that an accumulation of errors required a new trial on liability and allocation of fault.
Again the panel sided with the company, finding that Carver "improperly fused" respondeat superior and social host liability, and jurors were never asked to consider the differences between vicarious and primary liability.
The panel said it had "no confidence" that the jury properly evaluated the actors' liability and assigned appropriate percentages of fault.
"When viewed under the totality of the circumstances, the material surplusage of issues presented, the trial court's overlapping instructions, and the unnecessarily narrow-focused verdict summary form combined to create a misleading deliberative environment, fully capable of engendering an unjust result," it said.
The appeals court ordered a new trial on liability and apportionment of blame. But that is now moot as the plaintiff will receive $5 million under a high-low agreement with defendant Seabring Associates while the appeal was pending, according to his lawyer, Rosemarie Arnold, who heads a firm in Fort Lee.
Arnold says she disagrees with the ruling but her client would have prevailed if the case had been retried solely on a negligent supervision theory of liability against Seabring. "The evidence was in abundance that they negligently supervised" Ortiz, she says.
As for the high-low settlement, "no one likes to lose, but when the booby prize is north of $5 million, it's not that bad," she says.
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A federal jury in Trenton has found in favor of Merck & Co. Inc. in the first suit to go to trial over claims that its osteoporosis drug Fosamax causes fractured femurs.
After an hour and 20 minutes of deliberation on Monday, jurors voted 8 to 0 that the plaintiff failed to prove by a preponderance of the evidence that her fracture was of the so-called atypical type said to be caused by the drug.
The verdict in Glynn v. Merck, Sharp & Dohme Corp., 11-cv-5304, is important because 3,330 of 4,560 pending Fosamax suits are over fractured femurs or other bone-related injuries. The rest pertain to jaw-related problems.
The drug is designed to slow bone loss and make bones more dense. But some plaintiffs say it interferes with the normal bone-healing process in such a way that microfractures are not repaired.
Atypical femur fractures are defined as near the hip or in the middle section of the long bone of the femur, with a straight, rather than uneven, fracture, and usually occurring while the subject is simply standing or walking.
Bernadette Glynn, now 58, of Cohoes, N.Y., claimed she began using the drug in 2001 and continued until 2009, when she bent over while gardening and felt a pinch in her right leg.
She later learned she fractured her femur and underwent surgery to repair it with a rod and screws.
She claimed the company failed to adequately disclose risks associated with long-term use of Fosamax.
Her suit included counts for failure to warn and defective design, both under the New Jersey Product Liability Act; negligence; negligent misrepresentation; breach of express warranty and breach of implied warrant of fitness and merchantability; and violation of the New Jersey Consumer Fraud Act. She also included a claim for loss of consortium by her husband, Richard.
The company contended that Fosamax didn't cause Glynn's injury, that it made the proper disclosures to the public and physicians, and that it acted responsibly in researching, developing and monitoring Fosamax.
Jurors answered "no" to the first question on the verdict sheet, which was, "did Bernadette Glynn prove by the preponderance of the evidence that she experienced an atypical femur fracture in April 2009?"
Their answer of "no" meant they did not proceed to questions on adequacy of Merck's warning and the proper amount of compensation.
The verdict was reached after 15 days of trial before U.S. District Judge Joel Pisano.
Merck hailed the victory, which brings its record to six wins and two losses among Fosamax cases — over jaw-bone problems — tried to completion.
Bruce Kuhlik, executive vice president and general counsel of Merck, said in a statement: "The company provided appropriate and timely information about Fosamax to consumers and the medical, scientific and regulatory communities."
He added, "We remain confident in the efficacy and safety profile of Fosamax."
Merck was represented by Chilton Varner and Andrew Bayman of King & Spalding in Atlanta and Karen Confoy of Fox Rothschild in Princeton.
The lead plaintiff lawyer in the case, Paul Pennock of Weitz & Luxenberg in New York, says, "as far as the atypical fracture finding, there are appellate issues concerning the verdict sheet presentation of that question, among other issues." He declines to elaborate.
To date, two Fosamax cases have been tried before Superior Court Judge Carol Higbee in Atlantic County Superior Court. Defense verdicts were returned in both cases, in which plaintiffs linked necrosis of the jawbone to use of Fosamax.
Higbee also began a trial in another Fosamax case involving a broken femur in March. But Higbee declared a mistrial in that case March 18 after the plaintiff suffered a heart attack.
Five other Fosamax trials have been conducted to date, all in the Southern District of New York. Plaintiffs have prevailed in two.
In one, Scheinberg v. Merck, the jury awarded $285,000. In the other, Boles v. Merck, the jury awarded $8 million, but the judge reduced the award to $1.5 million. When the plaintiff sought a new damages trial, Merck settled for an undisclosed amount.
Merck introduced Fosamax in 1995, and it remains on the market. In 2005, at the recommendation of the Food and Drug Administration, the company amended its labeling to disclose risks that it can cause necrosis of the jawbone.
The labeling was changed again in 2011 after the FDA issued a safety announcement and studies linking the drug with femur fractures, exposed and rotting jawbones, fractures, gum lesions, severe jaw pain, loose teeth and secondary infections.
Suits filed in New Jersey, other than those seeking medical monitoring, were consolidated before Higbee in October 2008.
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PARTY'S DELETION OF FACEBOOK PAGE FOUND TO BE SPOLIATION OF EVIDENCE
A personal-injury plaintiff who deleted his Facebook account while the defendants were trying to access it has been sanctioned for spoliation.
The plaintiff "had a duty to preserve his Facebook account at the time it was deactivated and deleted" and the defense would be prejudiced by loss of the evidence U.S. Magistrate Judge Steven Mannion ruled Monday in Gatto v. United Airlines, 10-cv-1090.
But Mannion, who sits in Newark, declined a request for legal fees, finding the adverse-inference jury instruction he ordered was a sufficient penalty.
Frank Gatto of Brooklyn, N.Y., a baggage handler at John F. Kennedy Airport, claims he suffered serious injuries when a set of stairs used for aircraft refueling crashed into him on Jan. 21, 2008. He returned to work for a while but left that July. He claims he is permanently disabled, unable to work and limited in physical and social activities.
Gatto sued Allied Aviation Services, which owned the stairs, and United Airlines, whose plane allegedly caused the accident. The suit, filed in Middlesex County Superior Court, was removed to federal court.
The defendants first sought social media discovery in July 2011, asking for documents or records of "wall posts, comments, status updates or personal information posted or made by Plaintiff on Facebook and/or any social media website from 2008 through the present."
They also requested the same type of information about the accident and any eBay business operated by Gatto during that time frame.
United later sent forms for Gatto's signature that would authorize Facebook, MySpace, eBay and PayPal to release his information. On Nov. 21, 2011, Gatto sent them back signed, for all but Facebook.
During a conference on Dec. 1, U.S. Magistrate Judge Cathy Waldor ordered Gatto to execute the Facebook authorization, and he agreed to enable access by changing his password to "alliedunited."
The parties disagree on how the defense was supposed to access the Facebook data.
In opposing sanctions, Gatto and his lawyer, J. Silvio Mascolo, certified to their understanding that defense counsel would not access the account online but would obtain the information from Facebook's corporate offices.
Mascolo claims the defense lawyers assured him that there would be no online access and Gatto asserted that if he had known there would be, he would have objected because it would enable the lawyers to look at unrelated private information, especially his e-mail.
Gatto stated his account had been "hacked into and compromised on numerous occasions" in the past, including during his "contentious divorce."
The defendants, on the other hand, denied providing such assurances.
On Dec. 5, 2011, United lawyer Laurie Kachonick of Connell Foley in Roseland, e-mailed Mascolo, pointing out that Gatto had not changed the password and asking that it be done that day.
Kachonick admittedly went online to check on the password change and printed out some materials.
On Dec. 6, Facebook notified Gatto that his account had been accessed by an unknown IP address in New Jersey.
He told Mascolo, who e-mailed Kachonick, asking for confirmation that the records would be sought from Facebook headquarters.
Kachonick did not reply until Dec. 15. She apologized for the delay, saying she was on vacation, and explained the "account was accessed to confirm the password was changed, but will not be accessed again as we have sent the authorization to Facebook."
In response, Facebook said the Stored Communications Act barred it from disclosing the data but suggested having Gatto download the account contents.
During a telephone conference with Waldor on Jan. 6, 2012, it was agreed that Gatto would do so and turn over a copy, along with a certification that he had made no changes since the Dec. 1 conference.
Two weeks later, Mascolo e-mailed Kachonick that Gatto had deactivated the account and while he had instructed him to try to reactivate it, "I am told that once an account is deleted/deactivated, it cannot be reactivated."
It proved impossible, as he advised Kachonick on Feb. 1.
Gatto claimed he deactivated the account on Dec. 16 because "unknown people were apparently accessing my account without my permission," and Facebook automatically deleted the data 14 days later.
He claims he did not learn it was Kachonick until afterward.
The defendants moved for sanctions on June 29, contending the deletion was intentional. The lost postings would have helped refute Gatto's damage claims based on the materials printed out, which showed trips taken by Gatto, social activities and an eBay business, they claimed.
Mannion rejected the argument that the deletion was accidental.
Even if Gatto did not intend to permanently deprive the defendants of the data, he intentionally deactivated the account and failed to reactivate it within the necessary time, causing permanent loss of evidence potentially relevant to his damages and credibility, Mannion said.
He declined to award legal fees because Gatto's "destruction of evidence does not appear to be motivated by fraudulent purposes or diversionary tactics, and the loss of evidence will not cause unnecessary delay."
Mascolo, of Rebenack Aronow & Mascolo in New Brunswick, did not return a call.
Neither did defense lawyers Stacie Powers of Connell Foley in Roseland, for United, and Kenneth Gormley of Locke Lord Bissell & Liddell in New York, for Allied.
New Jersey Law Journal 3-28-13
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IN PHARMA ARGUMENTS, HIGH STAKES FOR GENERIC DRUG MAKERS
Nearly two years ago, the Supreme Court ruled that manufacturers of generic drugs were immune from liability in "failure to warn" lawsuits in state courts, in part because under federal law, generics are powerless to have warnings or labels that are different from their brand-name counterparts. On Tuesday, it was unclear whether the court would extend that protection from Pliva v. Mensing to generics manufacturers in a different kind of suit — namely a claim of harmful "design defects" in the generic drug. The stakes are high for generics, which account for more than 80 percent of all prescriptions.
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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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TORTS — RES IPSA LOQUITUR
36-2-8863 Mayer v. Once Upon a Rose Inc., App. Div. (Sabatino, J.A.D.) (15 pp.) This negligence case arises from the personal injuries that a caterer sustained when a glass vase shattered. The vase contained a floral arrangement, which a florist working at the same catered event had been carrying across the room. Invoking the doctrine of res ipsa loquitur, the injured caterer sued the florist and the floral company, contending that either the florist had been gripping the vase in a dangerous manner or that the vase had not been adequately inspected for cracks before it was brought to the site. The trial court granted defendants a directed verdict at the close of the caterer’s proofs before the jury, mainly because the caterer had not retained a liability expert to explain why the vase had shattered. We reverse, concluding that it was not essential for this plaintiff to have retained a liability expert in these circumstances, and that the jury should have been allowed to evaluate plaintiff’s claims based on res ipsa loquitur principles.
Article from New Jersey State Bar Association 1/31/13
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The state Supreme Court held Thursday that two 9-1-1 operators are statutorily immune from liability for bungling calls about the fatal stabbing of a woman and her two children. But the Court remanded the case, Wilson v. Jersey City, A-61/62-10, for a determination on whether the operators' actions constituted "wanton and willful disregard for the safety of persons," conduct that would not be immunized. At issue was the interpretation of N.J.S.A. 52:17C-10, which immunizes those who provide 9-1-1 services, including telephone companies and equipment manufacturers, unless there was a "malicious purpose or a wanton and willful disregard for the safety of persons and property."
IMMUNITY PROTECTS 9-1-1 OPERATORS FROM SUIT OVER MISHANDLED CALLS
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