This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To learn more, visit njsba.com.
Appellate Division Holds Two-Year Statute of Limitations Should Apply to Separate Causes of Action Arising from Common Facts
The Appellate Division held that the improper disclosure of a person's HIV-positive status to a third party without the plaintiff's prior consent may constitute a violation of the AIDS Assistance Act, an invasion of privacy by public disclosure of private facts, and medical malpractice, all governed by a two-year statute of limitations. The New Jersey State Bar Association participated as amicus curiae in the matter of Smith v. Datla, et al., A-001339-16, arguing against a single application of the most restrictive statute of limitations. NJSBA Trustee William H. Merger Jr. of Leary, Bride, Tinker & Moran PC, argued the matter on behalf of the association. Mergner also authored the brief, along with Liana M. Nobile, also of Leary, Bride, Tinker & Moran PC.
The underlying matter involves an allegation of inappropriate disclosure of highly sensitive medical information in front of a third party by Dr. Arvind R. Datla, in the plaintiff's hospital room. Datla apparently revealed that the plaintiff, who uses a fictitious name in the complaint, is HIV positive. Smith filed a complaint just prior to two years after the alleged incident, ultimately pleading three causes of action invasion of privacy, medical malpractice and a violation of the New Jersey AIDS Assistance Act. Medical malpractice carries a two-year statute of limitations. The defendants argue that a one-year statute of limitations should apply to all claims because the claims pled out of a common set of facts are akin to a false light or defamation claim, both subject to a one-year statute of limitations.
The Appellate Division noted that "the focus is on the nature of the injury, not the underlying legal theory of the claim when determining which statute of limitations applies." The opinion echoed the NJSBA's arguments that the defendants' fundamental argument that a single statute of limitations the most restrictive statute of limitations should apply where multiple claims are pled finds no support in the case law. "The NJSBA is not aware of any reported decision in which multiple claims were distilled to the shortest applicable statute of limitations, as is urged here," said the NJSBA. "To do so would be in stark contrast to the current handling of civil causes of action, and would prevent the advancement of many viable and meritorious claims."
The association further argued that the defendants' argument to fix a one-year statute of limitations to disclosure of HIV/AIDS actually results in less protection, in direct contradiction to the purpose of the NJ AIDS Assistance Act. Arguing that an unauthorized disclosure the AIDS Act is more akin to a Health Insurance Portability and Accountability Act (HIPAA) action, the Law Against Discrimination, or common law medical malpractice all of which have a two-year statute of limitations the NJSBA urged the Court to reject the defendants' argument likening such disclosure in this matter to a defamation claim which has a more restrictive one-year statute of limitations.
"Unlike a typical defamation claim, the information protected from unauthorized disclosure under the act is true," stated the association in its briefing. "In addition, unlike a defamation claim where a lawsuit provides the opportunity for the defamed person to vindicate his or her reputation, the damage caused by an unauthorized disclosure of an individual's HIV/AIDS status cannot be undone by ordinary damages for reputational harm recoverable in a defamation lawsuit, as evidenced by the Legislature's decision to provide for other damages to one so aggrieved." Under the AIDS Act, a person may recover equitable relief, attorney's fees and punitive damages in some cases.
The NJSBA cautioned the court against a uniform application of a statute of limitations, which would "denigrate the ability of citizens to access justice."
Supreme Court Issues Directive on Requests for Dash Cam Recordings of Fatal Shootings
The Supreme Court issued a directive on best practices for handling requests for dash cam recordings of fatal shootings following the Supreme Court's decision that North Jersey Media Group was entitled to them under common law. Directive #21-17 directs assignment judges to treat common law right of access requests for dash cam video recordings "as expeditiously as the court would address a sensitive [Open Public Records Act] filing."
"OPRA provides that a requestor who believes he or she has been unlawfully denied access to a public record may institute a proceeding challenging the denial in Superior Court; furthermore, 'any such proceeding shall proceed in a summary or expedited manner,'" said Acting Administrative Director of the Courts Judge Glenn A. Grant (quoting N.J.S.A. 47:1A-6). Rule 4:67 provides for summary actions in superior court, comparable to the timeframe set out in the Open Public Records Act (OPRA).
The decision in North Jersey Media Group v. Township of Lyndhurst, ___ N.J. ___ (Docket No. A-35-15) (July 11, 2017) involved the newspaper group's request for materials related to the Sept. 16, 2014, shooting of an alleged burglar who led police on a high-speed chase that ended in a crash. The group received varied responses to their requests, but no records were produced, resulting in the media group's filing of a complaint and order to show cause alleging violations of OPRA and the common law right of access.
The trial court held that the defendants had improperly withheld the requested records, concluding that neither OPRA's criminal investigatory records exception nor the ongoing investigation exception applied. The Appellate Division reversed and remanded the decision, holding that the 9-1-1 recording, motor vehicle accident report and portions of the computer-aided dispatch reports and other logs were disclosable, but that other records fell within the criminal investigatory records exception. The court remanded the matter to the trial court to consider the request under N.J.S.A. 47:1A-3(a) and the common law. On remand, the trial court ruled the defendants were not required to release the names of the officers or disclose two remaining use of force reports, three dash cam videos, and three police reports, relying on the need to maintain the integrity of the ongoing investigation.
The Supreme Court held that the use of force reports were disclosable under OPRA and the dash cam recordings were disclosable under the common law. The investigative reports, witness statements, and similarly detailed records were not subject to disclosure at the outset of the investigation.
Supreme Court Issues Directive on Certain Former Judges Returning to Law Practice
The Supreme Court issued a directive barring certain superior court judges who separate from the Judiciary from appearing in the vicinage in which they sat for one year after separation. The directive applies to judges who separate from the Judiciary and return to the practice of law without a judicial pension or who elect to defer collection of a judicial pension. The former judge will not be permitted to appear as the attorney of record in the vicinage in which he or she sat, rather the matter will be transferred to a different vicinage.
