On March 15, 2023 MKCI Partner and trial counsel Steve Toner obtained a defense verdict on behalf of a transportation client in Kings County, New York in the Lanzarotta & Lasala v. Big Apple Livery Leasing LLC, et al. matter. This case involved a rear end automobile accident. The trial was for damages only, and the jury came back with a with a unanimous defense verdict finding that, despite the claim of bilateral knee surgery to the then 24-year year old plaintiff 4 months post-accident, he did not sustain a significant limitation, or a permanent consequential loss of use, to his knees and therefore did not meet the No-Fault Threshold of a “Serious Injury”.

In a precedential opinion, New Jersey’s Appellate Division held that an arbitration clause may be enforced, even where it lacks an acknowledgment of the parties’ explicit waiver of access to the courts, as required in Atalese v. U.S. Legal Services Group, L.P., 219 N.J. 430 (2014), where the contract is between sophisticated parties. In County of Passaic v. Horizon Healthcare Services, Inc. d/b/a Horizon Blue Cross Blue Shield of New Jersey, A-0952-21, the Appellate Division was confronted with a dispute arising out of the parties’ contract, whereby the defendant Horizon had been retained, over the course of a seventeen-year relationship, to administer the County’s self-funded employee health benefit plan. After the contract ended, a lawsuit was filed in 2021 in which the County alleged that the defendant had breached the contract and had not implemented certain modified reimbursement rates.

MKCI invites you to join Joel Clark as he co-chairs and presents on the State of the Docket and Gillian Fisher as she presents on Talc Bankruptcy Updates at the Harris Martin New Jersey Asbestos Litigation Conference on March 3, 2023.

Today, Lawrence McGivney, managing partner of the firm’s New York City office, presented arguments before New York’s highest court, the Court of Appeals, regarding an issue of constitutional magnitude – interstate sovereign immunity. The question before the Court is whether an instrumentality of the State of New Jersey, responsible for transit operations which annually shuttles millions of commuters between New Jersey and New York can be sued in New York’s courts for claims arising from accidents occurring in New York. The issue has been litigated for the last several years in New York’s trial and appellate courts, following the decision of the United States Supreme Court in Franchise Tax Board of California v. Hyatt, 587 U.S. ____ (2019) (also known as Hyatt III), which concluded that interstate sovereign immunity was embedded in the United States Constitution.

MKCI Florham Park General Liability Partners Gary J. Intoccia and Joseph A. Gallo recently obtained a defense verdict in Bergen County Superior Court after a two-week trial involving a claim by a minor Plaintiff that he was injured during a “high-intensity” pre-season workout at a local high school gym that led to the development of rhabdomyolysis, a rare condition involving a breakdown of muscle tissue that releases a damaging protein into the blood. Prior to trial, Plaintiff presented a significant six-figure settlement demand.

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.