New Jersey Injury Lawyers Blog

Concussions, if not properly managed, can have serious long-term effects and, in the most severe cases, can even result in death. On September 30, 2010, the House of Representatives, by a majority vote, approved a bill that would help protect student athletes from these serious ramifications. (1)

The Concussion Treatment and Care Tools Act (ConTACT Act) was written by Democrat Rep. Bill Pascrell. It would require that the Department of Health and Human Services hold a conference of professionals from the athletic, medical and educational fields to set guidelines for managing concussions, including setting standards for when student athletes should be allowed to return to their sport following a concussion. The bill would also allow for grants to be issued to states looking to purchase concussion testing equipment and institute concussion management policies. (1)

A concussion occurs when the brain is pushed around inside the skull and can be caused by a direct hit to the head or a sudden stop. Not every concussion causes unconsciousness. Symptoms, however, include dizziness, nausea, sensitivity to light/noise, headaches, and trouble concentrating. (2)

Pascrell was inspired to write the ConTACT Act following incidents involving two New Jersey student athletes: Ryne Dougherty, who died in 2008 as a result of returning to a football game too soon after suffering a concussion; and Nikki Popyer, a former basketball player who still suffers the ramifications of multiple concussions, including constant headaches and the inability to drive. (3)

Concussions among school athletes are widespread. In the 2008-2009 school year, high school athletes suffered more than 400,000 concussions, according to the Center for Disease Control. (4) Pediatric Magazine published a study which found that, among 8- to 13-year olds, emergency room visits for concussions doubled in the 10-year period 1997-2007; the visits tripled for 14- to 18-year-olds in the same period. (2)

Currently about 175 New Jersey high schools required neurological baseline testing for students participating in sports. Parcell hopes that the new bill, through grants, would enable the remaining New Jersey schools to provide such testing. (4)

The ConTACT Act has now been referred to the Senate. Senate approval of the same legislation is required before the bill can be signed into law by the President.

(1) http://gantdaily.com/2010/09/30/concussion-legislation-to-protect-young-athletes-moves-forward/

(2) http://www.google.com/hostednews/ap/article/ALeqM5hE6o2SK8Kk5L7XjzRt7KQgcZZajAD9I40S780

(3) http://www.washingtonpost.com/wp-dyn/content/article/2010/09/30/AR2010093003378.html

(4) http://newyork.cbslocal.com/2010/09/08/nj-lawmaker-seeks-to-combat-sports-related-concussions/#

It was supposed to be the forgetful woman’s answer to birth control but now the Ortho Evra patch is the subject of an ongoing investigation and basis for numerous lawsuits against its manufacturer, New Jersey-based pharmaceutical company Johnson & Johnson. The question is whether or not Johnson & Johnson did enough to warn consumers about the higher risks associated with the patch. (1)

When it was first introduced in 2002, the patch was lauded as one of the year’s best inventions. But as popularity of the patch grew, so did evidence about the higher risks associated with the product. (1)

In 2005, the Food and Drug Administration (FDA) issued a warning to consumers that exposure to higher levels of estrogen put them at greater risks for serious side effects, including blood clots and strokes. A warning was then added to the label on the patch advising women that use of the product would expose them to approximately 60% more estrogen than if they used the pill. (2) Medical experts seem to think that is due to the fact that the patch delivers estrogen straight into the bloodstream on a continuous basis whereas, when in pill form, the hormone is dissolved and digested before entering the bloodstream in more diluted levels. (3)

Medical records from the period between 2002 and 2004 indicated that risks of strokes were higher than with the pill (by 12%), as were risks of blood clots (by 18%). Over 2,400 women have claimed injuries from the patch and about 24 deaths have been attributed to it. One of those who died was 17-year-old college freshman Adrianna Duffy. Her mother, Leslie Niedner, is currently involved with others in a lawsuit against Johnson & Johnson. Reports estimate that Johnson & Johnson already has paid an estimated $68 million in settlements to victims of the patch. Niedner vows not to settle but instead to see the case to trial. (1)

Separately, a former Johnson & Johnson vice-president, Dr. Joel Lippman, is suing the company for unlawful termination, claiming that he was fired after “blowing the whistle” on the product even before it was put on the market. (1)

Whether Johnson & Johnson’s warnings about the potential dangers of the patch were clear enough is now a question for the courts to answer.

(1) http://today.msnbc.msn.com/id/39306467

(2) http://www.cbsnews.com/stories/2005/11/11/earlyshow/health/health_news/main1037611.shtml

(3) http://www.aol/health.com/2010/09/23/did-johnson-and-johnson-hide-dangers-of-its -birth-control-patch/

New Jersey lawmakers are considering legislation that would provide stiffer penalties for people who talk or text on their cell phones while driving – a move that would make New Jersey’s laws among the toughest in the country. (1)

New Jersey has had laws against the use of cell phones while driving in place since 2004. In late 2007, those laws were amended to make using cell phones without a hands-free device a primary offense. Prior to that, drivers could be cited for cell phone use only if they were pulled over for another violation. (2)

Last Monday, the Senate Law and Public Safety Committee in a 4-to-1 vote approved a bill increasing the penalties for cell phone use while driving. Under the proposed Law, penalties would be imposed on a graduating scale: the first offense would carry a fine of $200; a second offense within 10 years, $400; and the third offense, $600, plus suspension of a driver’s license for 90 days. (3) Current penalties carry a $100 fine.

Studies have shown that cell phone use has a significantly greater impact on drivers’ reflexes and reaction times than driving while intoxicated. “Car and Driver” magazine reported that it takes drivers sending text messages an extra 70 feet to stop, compared with an extra four feet for intoxicated drivers. An insurance company estimated that drivers who text while driving are nine times more likely to get into an accident than non-distracted drivers. (4)

Critics of the changes say the current penalties are sufficient. Supporters, however, say distracted drivers pose a risk not only to themselves but to those around them. While it has been reported that the number of traffic accidents attributed to cell phone use did decrease about 10 percent between 2006 and 2008, records show that police issued almost 10,000 citations a month since March 2008, clear evidence that current laws do not provide enough incentive for drivers to break this risky habit. (1)

The new legislation requires full Senate consideration before it can become law.

(1) http://www.newjerseynewsroom.com/style/senate-committee-approves-proposal-to-toughen-penalties-for-using-cellphone-texting-while-driving

(2) http://www.drivinglaws.org/jerseylaw.php

(3) http://www.landlinemag.com/todays_news/Daily/2010/Sept10/091310/091510-03.htm

(4) http://www.bizjournals.com/philadelphia/blogs/stimulus_tracker/2010/09/nj_legislators_move_to_toughen_hands-free_cell_phone_law.html

A former stage manager for the “Late Night with Jimmy Fallon” television show filed a sexual discrimination complaint with the U.S. Equal Opportunity Employment Commission (EEOC) alleging that he was demoted and later terminated from his job with the show because the late-night comedian preferred working with women.

Paul Tarascio of Oradell, NJ, filed the complaint against Fallon and the show’s producers alleging that the producers lied about Tarascio’s performance in order to remove him from his position and replace him with a woman. Tarascio alleged in the complaint that Fallon prefers to be directed by women and to work with female technicians only. (1)

Sexual or gender discrimination is no laughing matter. Last month a volunteer firefighter received a $15,000 settlement for her gender discrimination suit against the Clementon Fire and Rescue Company. The firefighter, Merrissa Garretson, alleged she was the victim of repeated derogatory comments from another firefighter. Garretson claimed that she was told an investigation of her complaint would be conducted, but instead her gear was taken from her locker and she was replaced on the fire truck by firefighters with less experience. In addition to the monetary settlement, members of the fire department were required to attend sexual harassment prevention training sessions. (2)

While the EEOC provides federal protection against sexual discrimination, the New Jersey Law of Discrimination (LAD) provides protection at the State level. The LAD protects against intentional discrimination, including conduct or statements discriminatory in nature, or differential treatment based on gender. (3)

Under the Law, employers may not sexual harass or permit sexual harassment of their employees. Earlier this year, the State Appeals Court expanded the Law to apply to business owners and their clients as well as to employers and their employees. This decision was the result of a complaint filed by the female owner of a Middlesex County tire distribution company against a branch manager from United Rentals North America Inc. That complaint alleged that the manager stopped doing business with the woman’s company after she refused sexual advances he made toward her. This decision extends protection against sexual discrimination to areas not previously explored. (4)

(1) http://www.nj.com/entertainment/celebrities/index.ssf/2010/07/jimmy_fallon_accused_of_sexual.html

(2) http://www.dailyrecord.com/fdcp/?1284317524030

(3) http://www.judiciary.state.nj.us/factsheets/fact_sexhar.pdf

(4) http://www.nj.com/news/index.ssf/2010/01/state_court_overturns_decision.html

Simply having leave policies in place is not enough to satisfy the Americans With Disabilities Act (ADA) if those policies are not flexible enough to “reasonably accommodate” employees with disabilities, contends the U.S. Equal Employment Opportunity Commission (EEOC).

The EEOC filed suit against Princeton HealthCare System, a Mercer County, NJ company last month for failure to “reasonably accommodate” its employees with disabilities in regards to its leave policies, which is a violation of the ADA. (1)

The EEOC recognized that Princeton HealthCare does have leave policies for its employees as required under the Family Medical Leave Act (FMLA) such as a 12-week leave. However, according to the suit, Princeton HealthCare does not approve extensions beyond the 12-week leave provided for under FMLA for its employees with disabilities. Per this lawsuit, Princeton HealthCare also has terminated employees with disabilities who did not qualify for leave under FMLA when they could not get back to work within the company’s seven-day deadline. (1)

ADA protects disabled workers on the federal level and requires companies to provide “reasonable accommodations” for their workers with disabilities unless those accommodations would pose undue hardships for the company. (2)

New Jersey State Law also makes it unlawful for a person to be harassed or discriminated against because of a disability. The New Jersey Anti-Discrimination Law protects people with mental and physical disabilities. Earlier this year, that Law was amended to include people with neurological disorders such as autism and other related disorders. (3) The Law mandates that people with disabilities have the right to seek jobs based on merit and that they are considered “qualified” as long as they can perform all the essential requirements for the job. It also provides that people with disabilities be eligible for the same opportunities and benefits as all other employees. Under both state and federal law, employers are required to make accommodations for employees with disabilities that would help them perform their jobs. Such accommodations could include, but are not limited to, modified schedules. (2)

This EEOC suit against Princeton HealthCare emphasizes that policies that are not flexible enough to accommodate all qualified employees, including those with disabilities are illegal under both federal and New Jersey State law.

(1) http://ohsonline.com/articles/2010/08/13/princeton-healthcare-sued.aspx?sc_lang=en

(2) http://www.judiciary.state.nj.us/factsheets/fact_dis.pdf

(3) http://www.nj.com/news/index.ssf/2010/01/nj_targets_autism_discriminati.html

The second phase of a six-year battle finally came to an end this month when an African-American family was awarded $120,000 in settlement of a racial discrimination lawsuit against the Sea Isle City School Board. Previously, the family was awarded $550,000 in settlement of the portion of the suit involving the Town of Sea Isle City and its Police Department. (1)

The lawsuit was filed in 2004 by Doretha Waters-Rice and her son and granddaughter. According to the suit, Ms. Waters-Rice claimed that her son and granddaughter had been victims of racial slurs by teachers at the city’s schools. The suit also alleged that the granddaughter had been denied a part in a Christmas play because she was African-American. In addition, Ms. Waters-Rice claimed that the Sea Isle City Police filed false charges against her after she complained about the alleged racial harassment. (2)

In an unrelated case earlier this summer, the Justice Department announced that it had reached a consent decree that was expected to settle a case in which Green Brook Township was charged with discriminating against an African-American employee in its Department of Public Works. (3)

The decree, which was subject to approval by the U.S. District Court for the District of New Jersey, calls for $35,000 in compensatory damages to be paid to the employee, Anthony Rivera. According to the suit, Rivera had been the victim of repeated racial discrimination including racial slurs, jokes and other remarks, by his supervisor while on the job. The suit also claimed that when Rivera complained about the harassment, he was retaliated against by the Township. Because Green Brook cooperated with the Civil Rights Division, this case was resolved without litigation. (3)

The New Jersey Law Against Discrimination (LAD) protects people against racial discrimination in employment, public accommodations and housing. The LAD states, in part, that people cannot be denied service or turned down or harassed when using public facilities. It also covers situations where people are harassed verbally or physically while on the job or in school. In New Jersey, the Division of Civil Rights is authorized to investigate racial discrimination complaints. (4)

(1) http://www.nj.com/news/index.ssf/2010/09/nj_family_reaches_100k_settlem.html

(2) http://www.newyorkinjurynews.com/2010/07/25/sea-isle-city-new-jersey-racial-discrimination-partial-settlement-reached_201007254421.html

(3) http://www.justice.gov/opa/pr/2010/June/10-crt-691.html

(4) http://www.judiciary.state.nj.us/factsheets/fact_rac.pdf

Even though New Jersey is an “at will” employment state, the New Jersey State Supreme Court this past summer ruled that failure to renew a contract because of age is against the New Jersey’s Anti-Discrimination Law. (1)

The case involved Rose Nini, a former dean at Mercer County Community College, who claimed the College refused to renew her contract because of her age – 73. Nini had worked at the College for a total of 26 years under several contracts. In the spring of 2005, the College announced it would not renew her contract. (2) According to Nini, this was solely due to her age. The school, however, contended that since Nini was an “at will” employee, they acted within their rights in choosing not to renew her contract. (1)

“At will” employment basically means that employees have the right to resign from a job for any reason and employers have the right to terminate employees for any reason provided, of course, those reasons do not violate other rights protected under state or federal law. (3)

Nini filed suit against the College in September 2005. In the suit she alleged that the College’s former president let her know he did not believe she should be working at her age. The trial court decided that, because Nini’s employment was contractual, the New Jersey's Law Against Discrimination did not protect her. According to the court, Nini was not terminated; she just wasn’t rehired. (1)

The case was later appealed and the trial court’s decision was overturned. The matter was then brought to the State Supreme Court. In the meantime, Nini and the College reached an agreement and asked that the case be dropped. The Court, however, recognizing the extent of public interest in the case, ruled on the matter anyway. (4)

In its ruling, the State Supreme Court found that while employers do have the right to refuse to hire people over 70 years of age that exception applies only to new hires. The court’s ruling made it clear that refusing to renew contracts because of an employee’s age is discriminatory. (1)

(1) http://www.nj.com/news/index.ssf/2010/06/nj_supreme_court_rules_refusal.html

(2) http://www.newjerseynewsroom.com/state/nj-supreme-court-rules-against-mercer-county-community-college-on-age-discrimination-case

(3) http://employeeissues.com/wrongful_termination.htm

(4) http://chronical.com/blogPost/NJ-Supreme-Court-Sides-With/24461/

Bullying among adolescents is serious behavior that requires serious attention. This was confirmed recently by the State Division on Civil Rights.

Reports on August 31 stated the Division found sufficient evidence to indicate that the Old Bridge Township Board of Education failed to take adequate action to stop reported incidents of bullying at its Jonas Salk Middle School and that the mother of the victim of that bullying may continue her suit against the Board. (1)

The mother’s complaint alleges her son was harassed by other students because of his religious affiliation and what they perceived to be his sexual preference. About 11 individual incidents involving 14 students reportedly occurred against the boy between September 2006 and January 2007. No disciplinary action was taken in two of the incidents because of insufficient information, but the school did dole out punishments ranging from warnings to in-school suspensions in the other incidents. Because these punishments did not stop the bullying, the Division determined the Board had not done enough. (1)

In 2007 the New Jersey Supreme Court ruled schools had an obligation to provide safe and non-hostile environments for their students, much like companies have the obligation to provide such workplaces for their employees. This decision was in response to a Toms River, NJ, case in which a student sued the school district, claiming he was bullied to the extent he had to change schools. The disciplinary action the school took in that case also failed to stop the harassment. (2)

Prior to the Supreme Court ruling, schools followed guidelines set in Title IX Amendment of the Federal Education Law, which put the onus on the complainant to prove the seriousness of the harassment and that the actions were intentionally ignored by the specific school board. Responding to the Toms River suit, the Division on Civil Rights determined that the Law Against Discrimination (LAD) applied in that situation and the State Supreme Court agreed. (3)
Under LAD, a case can be made against a school district when the district knows about the harassment but does not take quick and effective action to stop it. The court wanted school districts to address the school environment on the whole and not just address case-by-case issues. (3)

In Old Bridge Township, the Division found the school addressed only the individual incidents and did not take proactive measures to prevent this behavior school-wide. (1)

(1) http://www.nj.com/news/index.ssf/2010/08/bullying_lawsuit_against_old_b.html

(2) http://www.aclu.org/lgbt-rights_hiv-aids/new-jersey-supreme-court-rules-schools-must-protect-students-bias-based-bullyin

(3) http://www.law.com/jsdp/law/LawArticleFriendly.jsp?id=1172570588274