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New Jersey Appellate Division Provides Encyclopedic Survey of Hearsay Rule and The Exceptions Thereto

An excerpt from the Court's opinion in Konop v. Rosen, ___ N.J.Super. ___ (2012) (DOCKET NO. A-2908-10T1):

Plaintiff's expert, Dr. Meyer N. Solny, opined that defendant deviated from accepted medical standards by failing "to ensure that the patient was adequately sedated and not moving during the procedure and by [failing] to stop the procedure when excessive patient movement occurred." Solny's opinion rested exclusively upon a notation that appeared in a consultation report prepared by Dr. Victor S. Flores upon plaintiff's initial admission to the hospital.

Before trial, defendant moved to bar the notation, claiming it was inadmissible hearsay. Defendant also argued that, if the notation was excluded from the consultation report, Solny's opinion was factually unsustainable and summary judgment was appropriate. Following oral argument, the judge scheduled a hearing pursuant to N.J.R.E. 104 to consider defendant's application.
Following the hearing, in an oral opinion, the judge concluded that the notation was inadmissible hearsay and should be redacted from the medical records. After originally agreeing to stay his decision so plaintiff could seek appellate review, the judge subsequently vacated the stay and granted summary judgment to defendant. Plaintiff now appeals from the January 26, 2011, order excluding the notation and granting defendant summary judgment.

Plaintiff contends that the judge erred in determining the notation was inadmissible hearsay, and, as a result, summary judgment should have been denied. Defendant counters by arguing that the judge properly excluded the notation because it was hearsay, not subject to any exception in our Rules of Evidence, and otherwise "untrustworthy." Both parties agree that if the notation is inadmissible, summary judgment was appropriate.
We have considered these arguments in light of the record and applicable legal standards. We reverse and remand the matter for further proceedings.

Vacant Property Owner Owes Duty of Care To Warn of Dangerous Condition

The New Jersey Supreme Court has recently reversed an order for summary judgment in a property owner's favor where a police officer was checking on vacant apartment buildings and fell, sustaining injuries.  Instead, the Supreme Court found the officer to be a licensee and remanded for an inquiry into the officer's knowledge of the allegedly dangerous condition.

Fee Shifting Possible in Medicare Reimbursement Hearings Even Where Government Does Not Make a Physical Appearance

The adversary can recover fees as long as the government parties merely "direct some purposeful advocacy at the decision-maker," which can be done in writing, the U.S. Court of Appeals for the Third Circuit held on April 20 in Handron v. Secretary Department of Health and Human Services, 10-1021.

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NJ Law Against Discrimination Held to Cover Claims by Plaintiffs Mistakenly Believed to Be Members of Protected Class

The Court wrote, there is "no reasoned basis to hold that the LAD protects those who are perceived to be members of one class of persons enumerated by the Act and does not protect those who are perceived to be members of a different class, as to which the LAD offers its protections in equal measure."

Ramsey Settles Bullying Suit for $4.2M

A New Jersey school district has entered into a $4.2 million settlement with a student who was permanently paralyzed after being punched in the stomach by a known bully at his middle school.

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