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February 2017 Archives

In a High-Low Agreement, the Sky (or the Ceiling) is Indeed the Limit

AdobeStock_117586360-1-768x512.jpegIn Serico v. Rothberg, M.D., 2017 WL 631813, - A.3d -- (N.J. Super. Ct. App. Div. Feb. 16, 2017), the plaintiff in a medical malpractice case appealed from the trial court's order denying her motion for attorney's fees under the offer of judgment rule ("Rule"), R. 4:58-1 et seq. While awaiting a trial date, the plaintiff made an offer to accept a judgment against defendant in the amount of $750,000, inclusive of costs and prejudgment interest, to which defendant did not respond. Later, while awaiting the jury was deliberating, the parties entered into a high-low agreement with minimum of $300,000 and a maximum of $1 million. No mention was made during the negotiation of the agreement of the Rule itself or the plaintiff's intention to either waive or pursue remedies under the Rule. The jury returned a verdict of $6 million, which was then reduced down to $1 million by the high-low agreement. Since this $1 million was more than 120% of her offer of judgment, plaintiff would have been potentially entitled to fees and costs under the Rule. The trial court denied the motion for fees, explaining that the custom and usage in the New Jersey legal practice was that, failing a reservation of rights, a claim for fees under the Rule was waived by entering into a high-low agreement. Since there was no evidence to suggest that such a reservation was made, and "several colleagues [of the judge] . . . informed him that successful parties who entered into high-low agreements rarely, if ever, made an application for fees under the Rule, and in the rare instance when they did, the motion was denied," the plaintiff was not entitled to fees under the Rule.

Birth Injuries

baby-499976_960_720-300x240.jpgWhen a child is born, families expect to celebrate the birth of a healthy baby. Unfortunately, medical errors and other mishaps can occur during the birth that can bring this exciting time to a screeching halt. If a physician fails to take all of the necessary precautions and perform every step correctly during the delivery, the child may be seriously injured and feel those effects for the rest of his or her life.

Nursing Home Neglect

Fotolia_66897361_L-1-768x512.jpgA major concern people have when making the decision to move their loved one into a nursing home is that he or she will be neglected. As much as you want to trust that your loved one will be properly cared for by attentive staff in homes with sanitary conditions, there are many deficiencies in the system that may result in injury or death. Some of the most commonly seen signs of neglect in a nursing home include bedsores, contractures, and poor sanitary conditions. There also may be instances when the home fails to administer the appropriate medication or provide patients with meals in a timely manner.

Noren v. Heartland Payment Systems, Inc.

courtroom-898931_960_720-300x226.jpgNoren v. Heartland Payment Systems, Inc, 2017 WL 476216 (App. Div. Feb. 6, 2017) involved breach of contract and CEPA claims. Plaintiff signed two different employment agreements during the course of his employment with Defendant. The agreements contained a jury-waiver provision, a fee-shifting provision, and specified that he was an at-will employee. The jury provisions purported to "irrevocably wave any right to trial by jury in any suit, action or proceeding under" both agreements. Defendant terminated Plaintiff's employment in 2005, Plaintiff brought suit, and the trial court denied Plaintiff's demand for a jury trial. After a bench trial, the trial court dismissed Plaintiff's complaint, and awarded Defendant just over two million dollars in fees and costs.

Medication Errors in New Jersey

Fotolia_74198154_M-1-300x214.jpgWhen you go to the doctor or you are admitted to the hospital because of an illness or a routine procedure, you expect that you will receive excellent care from trusted medical professionals. You never think that you will be prescribed the improper medication or administered the incorrect dosage by a nurse. These instances can have negative effects on your health that can cause further illness or even death.

Fair Labor Standards Act

shutterstock_75385903-300x200.jpgThe Fair Labor Standards Act (FLSA) provides minimum wage, overtime pay, recordkeeping, and child labor standards for certain full-time and part-time employees.

A Roadmap to the Proper Admission of Nontestimonial Documents

Fotolia_52956667_M-768x503.jpgIn State v. Wilson, the Supreme Court of New Jersey considered whether a map, admitted into evidence and prepared by the Union County Board of Chosen Freeholders, violated the Confrontation Clause of the Sixth Amendment to the United States Constitution, and the analogous provision in the New Jersey Constitution. The defendant was charged with second degree possession of CDS with intent to distribute in or within 500 feet of a public park. During the trial, the State sought to admit into evidence, among other documents, a map of Leggett Park and the surrounding area, which indicated the boundaries of the drug-free-zone around the park, and an affidavit by an assistant Union County Prosecutor offered for authentication. The defendant objected to the admission of these documents, challenging the authentication, and arguing that he did not have an opportunity to cross-examine the individuals involved in preparing the maps. The court disagreed and admitted the documents into evidence. The Appellate Division affirmed the conviction, holding that the map was nontestimonial evidence and that its admission did not violate the defendant's confrontation rights.

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