In a watershed ruling by the Supreme Court of Delaware, Dawn Courtney Doherty and Brett Norton successfully established new Delaware law that limits the amount of medical special damages that a plaintiff may recover to the actual amount paid by Medicare, rather than the much higher amount billed. In a unanimous, en banc decision, the Supreme Court of Delaware affirmed the trial judge’s grant of our client’s motion for judgment on the pleadings holding that the collateral source rule does not allow plaintiffs to admit into evidence or recover the amount billed, but only the amount paid. This victory establishes a significant limitation of potentially recoverable damages in Delaware. In the instant case, the ruling reduced plaintiff’s boardable medical specials from $3,683,797.11 to $262,550.17 – a reduction of more than 13 times the amount billed.

Sean X. Kelly in the firm’s New Jersey office recently prevailed in the Appellate Division resulting in a the reversal of the trial court and complete dismissal of all claims against our client, a New Jersey municipality. The underlying suit was a wrongful termination claim arising under the New Jersey Law Against Discrimination. Plaintiff claimed that his termination was in retaliation for the filing of a workers compensation action. The defense case presented evidence that the termination was fully in compliance with mandated Civil Service regulations.

The trial court twice refused to enter summary judgment on behalf of our client. Given the far reaching legal implications for our client and other municipalities, we successfully sought interlocutory appeal to the Appellate Division. The Appellate Division granted the appeal, wholly adopted the defense arguments and reversed the trial court on every issue, ordering that the matter be dismissed with prejudice.

Under the LAD, the burden of persuasion shifts to the defense to establish a legitimate non- discriminatory motive for any adverse employment actions. Too often, trial courts are apt to find that such evidence put forth by the defense merely establishes “issues of fact” which prevent the entry of summary judgment. Such was the case here with two different trial judges. However, we were successful in this case in persuading the Appellate Division that municipalities who are following State Civil Service regulations as a matter of law can not and should not be subject to discrimination claims under the LAD. The Appellate Division recognized that such evidence does, in fact, present a legal defense, not a factual dispute.

If you would like a copy of the opinion, or if you have any questions, do not hesitate to contact us.

This week the New Jersey Supreme Court decided an important issue of first impression governing the scope of the New Jersey Civil Rights Act. The issue before the Court was whether the CRA permits private individuals to bring claims for constitutional deprivation against defendants who are not acting under color of law. Sean X. Kelly successfully sought certification and argued the matter before the Court. In the companion cases of Perez v Zagami and Cottrell v Zagami Justice LaVecchia, writing for the unanimous Court, adopted the defense arguments that both the structure of the Act as well as the underlying legislative history suggested that the Act was not intended to permit causes of action against private individuals who are not acting “under color of law”.

The issue found its way to the Supreme Court after years of underlying litigation between the plaintiffs and our client, a local restaurant. Each plaintiff claimed that the defendant violated their First Amendment free speech rights by filing a defamation action against the plaintiffs for false statements made at public liquor board hearing. The case has important implications in the defense of various claims, including public entity litigation and SLAPP-back suits. This decision also affords consistency between the law governing the NJCRA claims arising under Section 1983.

Sean X. Kelly of the firm’s New Jersey office, recently appeared before the New Jersey Supreme Court on a novel issue regarding the scope of the New Jersey Civil Rights Act.   The case stems from several years of litigation involving the balance between first amendment rights at public hearings and claims for defamation.   The Supreme Court heard argument on whether the New Jersey Civil Rights Act should be interpreted so as to permit claims by private individuals against defendants who are not acting under color of state law. This issue has been the subject of conflicting holdings in the State and Federal courts.   The resolution of the issue could have a significant impact on public and private constitutional claims in the years to come.