June 2008, No. 4

June 2008, Vol. VI, No. 4

Are Portee Claims Subject to the Verbal Threshold? For those of you who said, why should a witness to a motor vehicle accident have to meet the permanency standard of the verbal threshold for the emotional injuries sustained from watching a family member become injured, you have raised an excellent question. The Supremes agree. In Jablonowska v. Suther, 2008 N.J. LEXIS 605 (2008), the plaintiff was involved in an accident while driving with her mother who died from a severed aorta. The plaintiff sued for post-traumatic stress disorder, but the trial court and the appellate division dismissed the case. The Supremes reversed finding that Portee claims, i.e., claims for emotional injuries from watching a family member die or suffer physical injuries, transcend the permanency requirement of the verbal threshold. They also concluded that the Legislature was aware of Portee v. Jaffee, 84 N.J. 88 (1980), when it enacted AICRA in 1998, but chose not to overrule it. Therefore, the Supremes determined that AICRA had no impact on Portee claims. The Supremes nailed this case – if the Legislature is going to limit a person's right to sue, the limitation must be explicit in the statute. Also, placing a permanency requirement on a person's emotional injuries from watching a loved one die or suffer from serious personal injuries does not further the interests of AICRA.

Can a Chiropractor Manipulate Body Parts Other than the Spine? For those of you who said that chiropractic treatment is limited to the spine, you are wrong. In Bedford v. Riello, 2008 N.J. LEXIS 772 (2008), a medical malpractice action against a chiropractor, the Supremes held that when the body part is a "related structure" to the spine, a chiropractor may treat the area. The Supremes also concluded that related structure has to be determined on a case-by-case basis. Not really sure what "related structure" means, and the Supremes have dumped this issue back to the trial courts to rule pre-trial whether the chiropractor's treatment to a limb was a related structure to the spine. Trial courts will be reluctant to rule on summary judgment that the treatment was not a related structure. Thus, the Supremes have created more work and more motions by not defining related structure. Expect this case to spawn future litigation and interpretations of related structure.

What To Do When Supreme s Order You to Show Cause for a Disciplinary Matter? Ahhh, how about show up? Well, believe it or not, an attorney thumbed his nose at the Supremes in In re Kivler, 189 N.J. 192 (2008), and the Supremes are none too happy about it. In fact, as a result of the no show, the Supremes doubled the penalty for the attorney from a three-month suspension to six months. Bottom line is that if you have an ethics issue, be contrite and do everything that the Supremes ask you to do.

MCLE Update: Like it or not, continuing legal education is coming. The Supreme Court appointed a special committee to investigate the issue, and the committee concluded that lawyers will have to complete twenty-four 24 hours of continuing education every two years. Although MCLE is a hot-button issue, we believe that classes make lawyers better in their respective fields, and thus, we endorse the Committee's proposal.

Does the Torts Claims Act Apply to an Alleged Violation of the Civil Rights Act? Drum roll please . . . . . No. In Owens v. Feigin, 194 N.J. 607 (2008), the Supremes harmoniously and unanimously stated that the legislative history of the Civil Rights Act did not contain any reference to the Torts Claims Act (TCA), and thus the TCA does not apply to civil rights claims. This ruling is consistent with the Supremes' ruling that the notice requirement of the Tort Claims Act is not required in LAD cases. Less paper work for some of you out there!

Enjoy the summer and happy July 4th.

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 [email protected].