The Supreme Court Grants Certification in Five Cases

Late last Friday, the Supreme Court announced that it has granted certification in five more cases.  There are four civil appeals and one criminal matter.

The criminal case is actually two consolidated Megan’s Law appeals, with the lead case being In the Matter of Registrant G.H.   The question presented there, as phrased by the Supreme Court Clerk’s office, is “In this appeal concerning the provisions of Megan’s law, are defendants eligible for relief from their lifetime registration obligations, pursuant to N.J.S.A. 2C:7-2(f), or does subsection (g), which took effect in 2002, preclude their eligibility?”  In a published opinion reported at 455 N.J. Super. 515 (App. Div. 2018), the Appellate Division ruled that subsection (g) did not bar eligibility.

The four civil appeals vary widely.  Privacy is the issue in Friedman v. Martinez, where the question presented is “Must plaintiffs demonstrate that their images were actually captured on a recording device or that they were present when recording devices were active in order to maintain a cause of action for invasion of privacy against an office building owner and property managers?”  The Appellate Division held that plaintiffs need not make such a showing.  The panel’s opinion was reported at 454 N.J. Super. 87 (App. Div. 2018).

Barila v. Cliffside Park Bd. of Educ. presents this question: “Among other issues, do plaintiffs’ challenges to this negotiated collective bargaining agreement, which altered compensation for accumulated but unpaid sick leave, implicate a scope of negotiations issue such that defendant was entitled to dismissal of plaintiffs’ action?”  A three-judge Appellate Division panel, in an unpublished opinion, affirmed the Chancery Division’s grant of summary judgment to plaintiffs.

The question presented in Whelan v. Armstrong International, Inc., a case involving dozens of defendants that was argued before three Appellate Division judges in 2016, re-argued before three other judges in May 2018, and decided by that panel in an August 2018 opinion reported at 455 N.J. Super. 569 (App. Div. 2018), is “In a products liability case arising out of exposure to asbestos, does a manufacturer have a duty to warn about the risk of harm from exposure to asbestos-containing replacement parts integral to the function of the manufacturer’s product, where the manufacturer did not fabricate or distribute the replacement parts?”  The Appellate Division answered “yes.”

The final appeal is Cowley v. Virtua Health System.  The question presented there is “Under the circumstances presented, did the ‘common knowledge’ exception apply to plaintiffs’ claims of medical malpractice, thereby relieving plaintiffs of their obligation to serve an affidavit of merit as required by the Affidavit of Merit Statute (AMS), N.J.S.A. 2A:53A-26 to -29?”  A published opinion of a three-judge Appellate Division panel, reported at 456 N.J. Super. 278 (App. Div. 2018), held that “the unique circumstances of this case” allowed plaintiffs to proceed without an affidavit of merit, under the common knowledge exception.