December 2008, No. 5

December 2008, Vol. VI, No. 5

Happy Holidays and Happy New Year! We wish you all health, happiness, and no late filings for 2009!!

When Does the Statute of Limitations Accrue Under the Child Sexual Abuse Act? Well, pursuant to the statute, N.J.S.A. 2A:61B-1b, a cause of action for illness or injuries resulting from sexual abuse "shall accrue at the time of reasonable discovery of the injury and its causal relationship to the act of sexual abuse." From that causative link, the prospective plaintiff receives two years to file suit. If you are saying, hmmmm, then join the club because this statute is not clear. Recently, in R.L. v.. Voytac, 402 N.J. Super. 392 (App. Div. 2008), the Appellate Division assessed the statute in a case where R.L. claimed that defendant Voytac sexually assaulted him when he was 10 to 12 years old from 1987 to 1990. Defendant Voytac was R.L.'s mother's husband. Through the years, R.L. experienced cross-dressing, and had other emotional problems and flashbacks about his abuse. In February 2002, he connected his cross-dressing and the sexual abuse and sought treatment for same. The Law Division determined that the cause of action accrued in 1999 when R.L. had a flashback, but the Appellate Division reversed finding that the statute is remedial, and therefore, should be liberally construed. The panel determined that the ultimate issue under the statute is when the plaintiff reasonably discovered the link between abuse and injury. The panel specifically found that awareness or recall of abuse does not mean that the statute begins to run because a plaintiff may not understand that the abuse has caused illness or injury. This case properly assesses the statute of limitations under the Child Sexual Abuse Act, and demonstrates that judges are often required to interpret statutes that are not clearly written. Politicians are too quick to criticize the judiciary for "judicially legislating" when it is in their favor to do so. Such criticism is unfair to our judiciary who are not legislating, but carrying out legislative intent and clarifying ambiguity. Three cheers for this panel for interpreting this poorly worded statute in a fair and just manner.

Is a Herniated Disc a Permanent Injury in a Motor Vehicle Accident? Well, for those of you said yes because of Pardo v. Dominguez, 382 N.J. Super. 489 (App. Div. 2006), think again. Remember that in Pardo, the Appellate Division held that on a motion for summary judgment, a herniated disc seen on an MRI film was a permanent injury sufficient to vault the verbal threshold. Well, in Ames v. Gopal, 2008 N.J. Super. Lexis 252 (App. Div. Oct. 21, 2008), the Appellate Division distinguished Pardo by limiting it to motions for summary judgments and by refusing to apply the ruling to trials. Therefore, the Appellate Division concluded that the trial court erred by instructing the jury that if it found that the plaintiff sustained a herniated disc from the accident, it had to conclude that said injury was permanent and had to award non-economic damages. Well, I think that we can all see the problem with these two cases. How can a herniated disc be a permanent injury for summary judgment purposes but not for a trial? What is wrong with telling a jury that a herniated disc is a permanent injury, and that if the jury concludes that same was caused by the accident, it should find for the plaintiff. Seems logical, no? Well, the Appellate Division does not think so. We are aware of unreported Appellate Division decisions that have gone the other way on this issue. Given that the cases on this issue are inconsistent, you can expect the Supremes to weigh in and advise us of whether a herniated disc is a permanent injury and whether the jury should be instructed that a herniated disc is a permanent injury.

Contributions. If you have an interesting case, rule interpretation, ethics issue, or civil- related story, please contact me at (201) 918-3560, (f) (201) 845-5973, or e-mail mjepstein@theepsteinlawfirm.com.

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