In Morris v. Rutgers-Newark, et al., the Superior Court of New Jersey, Appellate Division, held that Law Against Discrimination hostile educational environment and retaliation claims can be based on cumulative acts experienced by multiple members of a “small and cohesive unit” and rejected the Defendants’ argument that hostile educational environment claims required an individual analysis pertaining to each discrete protected trait of race and sexual orientation. It also reversed the trial court’s dismissal of Plaintiffs’ retaliation claims by viewing the “constellation of surrounding circumstances” in a light most favorable to Plaintiffs.

On May 3, 2022, in a published decision captioned as Kathleen DiFiore v. Tomo Pezic, et al., the Appellate Division considered consolidated appeals relating to the conduct of “Independent Medical Examinations” – sometimes referred to as “defense medical examinations” – within the context of bodily injury litigation. This decision puts to rest years of confusion and disagreement between the plaintiffs’ and defense bar regarding when third-parties should be permitted to observe forensic examinations, or when those examinations should be recorded, and also yields a clear rule of law that allows defense medical experts a meaningful opportunity to examine allegedly injured claimants. Given the fact that, by the time defense medical experts are involved in a typical case, plaintiffs have usually spent significant time presenting to numerous experts of their own, without defendants being aware of these proceedings, let alone observing them, this ruling further balances the expert scales in bodily injury litigation.

On June 30, 2022, the New Jersey Supreme Court decided Fowler v. Akzo Nobel Chemicals, Inc. The Supreme Court considered two issues: first, whether a manufacturer or supplier that places a defective warning on asbestos products may satisfy its duty to warn by providing adequate information about the product to employers, with the intention that the employer pass along that warning to its employees; and second, whether a trial court must instruct the jury on medical causation of injury using the Sholtis v. American Cyanamid Co., 238 N.J. Super. 8, 28-29 (App. Div. 1989) medical causation test which requires the jury to consider the “frequency, regularity, and proximity” of an injured plaintiff’s exposure to an injurious substance, rather than the traditional substantial factor test.

Yesterday, May 23, 2022, the New York Assembly passed the Adult Survivors Act (“ASA”) (S.66/A.648). The bill now heads to the Governor who has indicated that she intends to sign it as early as today. The bill allows adult survivors of sexual abuse an opportunity to sue their abusers and institutions.

In a much anticipated decision in the matter of Jeter v. Sam’s Club, A-2-21, decided on March 17, 2022, New Jersey’s Supreme Court declined to extend the mode-of-operation rule to a case where a food product from a sealed container allegedly spilled and caused a dangerous condition.

MKCI is proud to announce that Jeffrey Kluger, the firm’s co-founder and Director of our Toxic Torts/Hazardous Substances Practice Area, will be presenting at the American Bar Association’s Tort, Trial & Insurance Practice Section’s “Toxic Torts & Environmental Law Committee” on April 9, 2022 in Scottsdale, Arizona. Jeff will be speaking on the “Benzene Contamination in Consumer Products” panel, addressing in part the state of the litigation nationally.

On January 18, 2022, New Jersey’s Supreme Court published a decision in the matter of Lapsley v. Twp. of Sparta, A-69/69-20 (Jan. 18, 2022), determining that an injury sustained by the plaintiff on a parking lot adjacent to her place of work was a “compensable” injury in the state’s workers’ compensation system – and thus, was not able to be raised in a liability action due to the “exclusive remedy” provision in New Jersey’s Workers’ Compensation Act (the “Act”).

On December 22, 2021, the Supreme Court of Pennsylvania issued a significant decision in the matter of Mallory v. Norfolk Southern Railway Company, holding that Pennsylvania’s general jurisdiction statute, 42 Pa.C.S. § 5301(a)(2), which conveys general jurisdiction over foreign corporations who register to do business in Pennsylvania, is unconstitutional.

On December 16, 2021, New Jersey’s Appellate Division issued a published decision in E.C., a minor, et al. v. Leo Inglima-Donaldson, et al., A-2752-20, clarifying the application of New Jersey’s newly adopted standard for public entity liability in cases of claims alleging childhood sexual abuse.

Please be advised the New Jersey Supreme Court issued a notice on November 18, 2021 that permits virtual court proceedings in New Jersey after the pandemic ends. The Court noted “attorneys, parties, and judges have praised the reduced time and cost associated with virtual proceedings for brief and straightforward matters.” The Court invited comments from the bar on how to conduct court proceedings based upon their experiences during the pandemic. It was noted there were fewer scheduling conflicts and requests for continuances. Others highlighted the value of bringing parties together in person at certain critical junctures, including settlement conferences and proceedings that involve especially serious penalties or consequences. Chief Justice Rabner stated “it is important to balance consistency and predictability in court operations with the need to exercise discretion based on the facts and circumstances of individual cases.”