Client Advisories

The United States Supreme Court’s recent decision in Berk v. Choy confirmed that state statutes cannot create a higher pleading standard than Fed. R. Civ. P. 8, which requires that a plaintiff make only a “a short and plain statement of the claim showing that the pleader is entitled to relief.” In Berk, a medical malpractice action filed in federal court on the basis of diversity, defendants tried to make use of Delaware’s affidavit of merit statute, which requires that all medical malpractice actions include an accompanying affidavit of merit from a medical professional stating there are reasonable grounds to find the defendants committed medical negligence.

Pursuant to Delaware law, the defendants moved to dismiss plaintiff’s complaint for failure to provide an accompanying affidavit with his complaint. The District Court granted the motion to dismiss, and on appeal, the Third Circuit affirmed, again holding the Delaware statue applicable in federal court.

The Supreme Court reversed, explaining that when a federal court hears a state law claim and the state law and a valid, on-point Federal Rule of Civil Procedure conflict, the Federal Rule of Civil Procedure displaces the state law. In a 9-0 decision, the Supreme Court held that because Fed. R. Civ. P. 8 establishes a “ceiling” for the amount of information a plaintiff must plead on the merits to commence a lawsuit, and the Delaware state law required more than Rule 8, Rule 8 superseded Delaware’s law requiring plaintiffs to submit affidavits of merit with their complaints sounding in malpractice.

Key takeaway: While federal court is often an advantageous forum for defendants, before removing state court actions to federal court, defendants should consider whether the state law has beneficial pleading requirements that conflict with Rule 8. Certainly, defendants facing medical malpractice claims in states like Delaware, where an affidavit of merit is required at the pleading stage, should consider whether removal to federal court is advantageous.

The Connecticut Supreme Court has issued a significant decision that reshapes the timing and scope of insurer subrogation rights. In Orlando v. Liburd, the Court held that an insured may bring an unjust‑enrichment claim for premature subrogation immediately, without first obtaining a judgment against the tortfeasor or proving the tortfeasor’s inability to satisfy that judgment. The ruling clarifies the operation of the Make‑Whole Doctrine in Connecticut and creates new litigation exposure for insurers that receive policy‑limit tenders before fully compensating their insureds.

The decision reverses both the trial court and the Appellate Court, which had previously concluded that such claims were not ripe until the insured’s damages were adjudicated and the tortfeasor’s ability to pay was known. The Supreme Court reframed the injury as occurring the moment the insurer accepts subrogation funds that reduce the pool available to make the insured whole.

The case arose from a 2018 motor‑vehicle collision in which Plaintiff, Rocco Orlando, sought damages for diminished vehicle value and rental‑car expenses. The tortfeasor, Ernest Liburd, carried a $25,000 property damage limit with State Farm Mutual Insurance (State Farm). Orlando was insured by Nationwide Mutual Insurance Company (Nationwide).

During the claims process, State Farm tendered its full $25,000 limit to Nationwide, allegedly based on a representation that Orlando had been “made whole.” Orlando disputed that assertion and amended his complaint to allege that Nationwide’s acceptance of the funds violated his priority right under the Make‑Whole Doctrine by exhausting the coverage available to satisfy his remaining uncompensated losses.

Nationwide moved to dismiss, arguing that Orlando’s claim was speculative until he obtained a judgment against Liburd and demonstrated that Liburd could not satisfy it. Both lower courts agreed, concluding that the unjust‑enrichment claim was not ripe because Orlando’s injury depended on future events that might never occur.

However, The Connecticut Supreme Court rejected that reasoning and held that the claim was ripe as soon as Nationwide accepted the $25,000. The Court emphasized that the Make‑Whole Doctrine operates as a default rule in Connecticut, restricting an insurer’s ability to enforce subrogation rights until the insured has been fully compensated.

The Court explained that the harm in this case was not about calculating how much money the insured ultimately lost—it was the fact that his priority right under the Make‑Whole Doctrine was violated the moment Nationwide took the subrogation payment. By accepting the tortfeasor’s policy‑limit tender, Nationwide immediately reduced the pool of funds that should have been available to cover the insured’s remaining damages. The Court emphasized that even if the exact amount of the insured’s losses is still uncertain, the injury itself is already clear, so the claim is ripe. Requiring the insured to first win a judgment and then prove the tortfeasor cannot pay would create the kind of unfairness the Make‑Whole Doctrine is meant to prevent. In short, Nationwide’s early subrogation shifted the financial risk from the insurer to its own insured, and that is enough to make the claim actionable right away.

The Insurance Association of Connecticut and the American Property Casualty Insurance Association filed an amicus brief warning that expanding the make‑whole doctrine could: 1) increase litigation against insurers, 2) expose carriers to new categories of unjust‑enrichment claims, and 3) risk double recovery by plaintiffs.

The Supreme Court acknowledged these concerns but held that equitable principles required allowing insureds to challenge premature subrogation immediately. The Court emphasized that the doctrine exists to prevent insurers from recovering ahead of their insureds when available coverage is insufficient to make the insured whole.

Ultimately, this ruling introduces several operational and litigation risks for carriers: First, Insurers may now face unjust‑enrichment claims as soon as they accept subrogation funds without confirming the insured has been fully compensated. Second, since the Court repeatedly emphasized that Nationwide allegedly took the money without confirming whether the insured had been made whole, carriers must carefully document loss valuations, communications with other insurers, and the insured’s uncompensated damages. In other words, representations that an insured has been “made whole” may carry significant liability if inaccurate. Lastly, there needs to be clear protocols when exchanging information about loss valuation and subrogation rights, particularly in cases involving modest policy limits.

With the dismissal reversed, the case returns to the trial court for adjudication of the negligent‑subrogation claim against Nationwide and continued litigation of the underlying negligence action against Liburd. The plaintiff’s counsel has indicated the matter will likely proceed to a bench trial.

The New Jersey Appellate Division affirmed the trial court’s grant of summary judgment in favor of a defendant grocery store and denial of a plaintiff-customer’s motion for reconsideration in Cvetanka Neceva v. Stop and Shop #0820, when the testimony of the plaintiff’s expert failed to establish his methodology to determine that the outstretched leg of a store employee stocking the shelves was a hazard amounting to negligence.

In ruling on the motions, the trial court considered plaintiff’s expert report, submitted by a doctor with expertise in “human factors” who detailed arbitrary requirements constituting a “trip hazard.” The trial court excluded the doctor’s proposed testimony as net opinion because he failed to provide any code, regulation, or manual governing shelf-stocking procedures that the defendant store violated.

On appeal, plaintiff argued the trial court erred by excluding the report. Upon review, the Appellate Division explained that the net opinion rule requires experts to identify the factual bases for their conclusions, explain the methodology used, and demonstrate that both are reliable. In assessing the reliability of an expert’s methodology, the Appellate Division relied on Daubert v. Merrell Dow Pharmacy, Inc.

With this framework in mind, the Court determined the expert’s report referenced no methodology or scientific materials subjected to peer review or publication, nor were his conclusions supported by identified standards, data, or regulations. Finding none of the Daubert factors were present, the doctor’s expected testimony was not reliable. Moreover, the subject matter of the suit was not beyond the common knowledge of lay jurors, and accordingly, the expert testimony was unnecessary in addition to being inadmissible. Therefore, the Appellate Division affirmed.

In addition to affirming the decision on the inadmissibility of the expert, the Court separately determined that the outstretched leg of an employee stocking shelves was not a dangerous condition because it did not create an unforeseeable risk of harm, and there was no defect in the property itself.

Key Takeaway: This case reaffirms the principle that plaintiffs’ experts cannot offer conclusions without grounds to overcome summary judgment. Defendants should take advantage of poorly-written and poorly-supported plaintiffs’ experts’ reports to secure summary judgment.

The Superior Court of Pennsylvania affirmed the decision of the Philadelphia Court of Common Pleas to deny a skilled nursing facility’s Preliminary Objections to transfer a resident-on-resident sexual assault case to binding arbitration. Defendant Ambler Extended Care Center and their parent company, Saber Healthcare Group LLC, filed Preliminary Objections to enforce an arbitration agreement signed by plaintiff, Jane Doe, who allegedly was sexually assaulted by another resident.

Although Ambler Extended Care attached the signed arbitration agreement to their Preliminary Objections, Doe argued that she did not actually sign the arbitration agreement. In opposition to Ambler Extended Care’s Preliminary Objections, Doe propounded an affidavit, stating that she did not remember signing the arbitration agreement or discussing it with a representative of Ambler Extended Care. She argued that Ambler Extended Care copied her signature from another document. The Court of Common Please found that Doe had not executed the Arbitration Agreement, relying exclusively on Doe’s affidavit.

The Superior Court of Pennsylvania held that Ambler Extended Care did nothing to refute Doe’s affidavit, including cross-examining Doe or submitting their own affidavit of a witness affirming Doe’s execution of the arbitration agreement. As a result, the Superior Court deferred to the trial court’s finding of fact that Doe did not sign the Arbitration Agreement.

Key Takeaways: Skilled nursing facilities and other defendants should be prepared to come forward with affirmative proof of the execution of arbitration agreements to ensure their enforceability. Additionally, consideration should be given to have witnesses to the signatory page of arbitration agreements.

In a recent unpublished opinion from the New Jersey Appellate Division, the court emphasized the procedural requirements governing jurisdictional discovery when defendants move to dismiss a complaint for lack of personal jurisdiction.

In Llauger v. Klein Products Inc., the plaintiff alleged the court had personal jurisdiction over the defendants under a stream of commerce theory. The defendants moved to dismiss the plaintiff’s complaint for lack of jurisdiction. The court denied the motion, and the parties consented to a period of jurisdictional discovery, after which the defendants again moved to dismiss. The plaintiff cross-moved to compel discovery, arguing the defendants’ discovery responses were incomplete. The plaintiff alleged the defendants objected to providing information related to the identity of their “middlemen,” who sold the defendants’ equipment in New Jersey. According to the plaintiff, this information could have uncovered further links between the defendants and New Jersey. The court denied the defendants’ motion, extended jurisdictional discovery, and ordered the defendants provide complete discovery responses.

After jurisdictional discovery ended, although the defendants had not provided the identities of their “middlemen,” they again moved to dismiss for lack of personal jurisdiction. The trial court granted the defendants’ motion, finding the record incomplete as to determine whether it could exercise personal jurisdiction over the defendants. The plaintiff appealed.

The Appellate Division reversed, concluding the trial court erred in granting the defendants’ motion. Because the defendants failed to respond to some of plaintiff’s jurisdictional discovery demands, which may have revealed sufficient ties between the defendants and New Jersey, the court could not properly ascertain whether it had personal jurisdiction over the defendants. As such, since fact discovery was not set to close for another five months, the plaintiff was permitted to continue engaging in discovery or to file a motion to compel discovery.

Key takeaway: Where jurisdictional discovery is permitted to resolve issues raised by a motion to dismiss on personal jurisdiction grounds, defendant should ensure the completeness of discovery before renewing the motion. To address the issue before renewing the motion, consider seeking written confirmation from plaintiff as to completeness of discovery or allow a motion to proceed so the court can rule on the issue.

The Third Circuit reversed the District of New Jersey in Dawn Valli, et al. v. Avis Budget Group, Inc., et al., finding that a car rental company did not waive its contractual right to compel arbitration through its litigation conduct in a class action. A class of car renters asserted that their rental agreements deprived them of the opportunity to contest traffic violations by paying the fines (and therefore admitting liability) before notifying renters of the infractions.

The parties disputed class certification for several years, with the District Court terminating and reinstating certification motions while discovery continued and mediation remained unsuccessful. Appellant, Avis Budget Group, Inc. (and its related entities) (“Avis”) continued to assert its arbitration rights while opposing certification. The District Court ultimately certified a subclass pursuant to Rule 23(c)(4)(B), and in its analysis, the Court determined Avis waived arbitrability by engaging fully in the underlying litigation for five years without having formally moved for arbitration. Avis then moved to compel arbitration and disputed its waiver, arguing that any earlier motion to compel directed at an unnamed class would have been futile before certification of a class. The District Court denied Avis’s motion to compel, concluding its pre-certification activity demonstrated waiver, and found fault in Avis for failing to formally seek to enforce arbitration until after a class had been certified.

On appeal, the Third Circuit considered the interplay of the doctrines of waiver and futility and turned to Chassen v. Fidelity National Financial, Inc., in which the Third Circuit determined that a financial investment company did not waive its right to arbitration despite years of litigation because any attempt for the defendant to formally move for arbitration would have failed due to then-controlling New Jersey law barring arbitration in adhesion contracts like the contract in Chassen. Avis argued Chassen was dispositive, foreclosing any consideration of its pre-certification conduct because it could not enforce its arbitration right until the District Court certified a class containing arbitration-bound members. Appellees argued Chassen was distinguishable because the futility in that case stemmed from controlling law, whereas here it turned on party status.

The Third Circuit ultimately determined that when enforceability of a right to arbitration hinges on the occurrence of a foreseeable procedural event, like the certification of a class, pre-litigation conduct is considered by the Court. With this in mind, the Court found that Avis’s intent to arbitrate was clear when reflecting upon the record, as evidenced by incorporating operative arbitration and class-waiver language into its rental terms; consistently asserting its prospective arbitration rights in opposing certification while discovery and mediation proceeded; and promptly moving to compel once it was no longer futile to do so. The Third Circuit therefore found Avis’s motion to enforce arbitration timely and remanded the matter back to the District Court to address the enforceability of the arbitration clause, which was not originally ruled upon at the district level.

Key Takeaway: It is important to act consistent with arbitration rights pre and post suit and clients may consider seeking a ruling early in the litigation as to the timing of enforcement at the trial court level.

In a significant discovery ruling with implications for nation-wide cosmetic-talc litigation, the New York Supreme Court has compelled Northwell Health Inc. (“Northwell”) to produce internal research data related to two scholarly articles authored by Dr. Jacqueline Moline – publications that have been central to plaintiffs’ causation theories in mesothelioma cases. The decision follows nearly two years of interstate litigation under the Uniform Interstate Depositions and Discovery Act (UIDDA) and marks the latest development in defendants’ efforts to uncover the truth behind Dr. Moline’s litigation-born opinions.

In early 2024, in the New Jersey case Clark v. Johnson & Johnson (J&J), J&J and related entities issued subpoenas seeking information identifying the unnamed subjects in Dr. Moline’s 2020 and 2023 articles linking cosmetic talc use to mesothelioma. The company argued, similar to defendants in other cases, that the articles – widely cited in talc litigation – rested on a false premise: that the individuals studied had no asbestos exposure other than cosmetic talc. A review of anonymized biographical information for the subjects referenced in Dr. Moline’s articles suggested that multiple subjects were plaintiffs with talc claims who had documented non-talc asbestos exposures, including cigarette filters, degrading pipe insulation, and asbestos-containing materials.

Northwell, which employs Dr. Moline and maintained the research database used for her publications, resisted the J&J subpoenas, as it had with other defendants’ attempts to subpoena the information, asserting jurisdictional, procedural, and privacy-based objections. After the New Jersey court directed J&J to proceed through New York’s UIDDA process, the company filed a special proceeding in New York County Supreme Court to enforce the subpoena.

Justice Silvera initially denied the enforcement, but the Appellate Division, First Department reversed in October 2024, holding that the identities of the article subjects were “clearly relevant” to the underlying New Jersey action. The Court of Appeals later denied Northwell’s motion for leave to appeal, clearing the way for enforcement.

Despite the appellate rulings, Northwell produced only an alphabetized list of names – stripped of the case-number correlations necessary to determine which individuals corresponded to which case descriptions in the articles. J&J argued that this production was deliberately scrambled and unusable, noting that Dr. Moline herself testified that she could only match names to article subjects by using the full dataset stored on Northwell’s servers.

At a November 18, 2025 hearing before Justice Gerald Lebovits, the court pressed Northwell on its position. J&J emphasized that Northwell had previously produced a redacted version of a “key” linking names to case numbers in unrelated litigation and that Dr. Moline had testified she had accessed the unredacted version at Northwell’s direction. Northwell countered that J&J’s subpoena lacked specificity and that it had complied with J&J’s literal request to “identify” the individuals.

Justice Lebovits rejected the narrow reading. In an interim order issued the same day, the court directed Northwell to produce “the entirety of the information on its databases concerning Dr. Moline’s 2020 and 2023 articles” as described in Dr. Moline’s deposition testimony. The court set a firm deadline of November 25, 2025, warning that failure to comply could result in contempt.

Northwell subsequently produced the unredacted keys, and, on November 26, 2025, J&J notified the court that the production appeared complete. As a result, Northwell withdrew its request for sanctions. On December 2, 2025, Justice Lebovits issued a final order marking the motion “granted in part and withdrawn in part,” formally disposing of the special proceeding.

This ruling represents a significant judicial directive requiring disclosure of research subject identities in the context of litigation-generated scientific publications. It also highlights the growing scrutiny of purported “scientific” opinions developed through mass torts litigation.

In State Farm Fire Casualty Company v. Brownstones Coffee, Inc., et al., the Second Department of the New York Appellate Division held that insurers cannot contradict positions previously taken by their insureds in related litigation, reinforcing the importance of consistent legal strategies in subrogation claims.

This claim arose in August 2015 when a fire destroyed commercial property owned by New Age Management, LLC, which was insured by State Farm, and leased to tenants Brownstones Coffee, Inc. and Country Fare Market, Inc. After paying out insurance benefits to New Age for the damage, State Farm commenced a subrogation action against the two tenants seeking to recover its payment. The tenants’ insurers, Utica First Insurance Company and Graphic Arts Mutual Insurance Company, counter-sued against New Age seeking to recover their own payouts to the two tenants. The three separate subrogation actions were consolidated for all purposes in the Supreme Court of Suffolk County.

The key point of contention became a waiver of subrogation clause contained within the tenants’ leases with New Age, by which the parties waived their rights to sue each other’s insurance companies for covered losses. Based on this clause, New Age moved for summary judgment to dismiss the claims by Utica First and Graphic Arts, claiming that the waiver clauses precluded their actions. The lower court granted this motion. After New Age’s success, State Farm then attempted to contrarily argue that the waiver clauses should not preclude its ability to recover from the tenants. The tenants challenged the contradictory position in a summary judgment motion of their own. The lower court granted the tenants’ motion.

When State Farm appealed, the Second Department affirmed, applying the doctrine of judicial estoppel. Under this doctrine, a party is precluded from assuming a position in one legal proceeding, prevailing on that position, and then assuming a contrary position simply because its interests have changed. As the Court explained, the doctrine protects judicial integrity by preventing inconsistent results. Further, the Court noted that, “an insurer can only recover if the insured could have recovered and its claim as subrogee is subject to whatever defenses the third party might have asserted against its insured.” The Court found that State Farm’s position directly contradicted the position already successfully assumed by New Age, its subrogor, and accordingly held that State Farm was precluded from assuming the contrary position.

The Second Circuit in Ziparo v. CSX Transportation revived a retaliation lawsuit under the FRSA, finding that the trial court should have applied the lenient “contributing-factor” causation standard that the Supreme Court applied in Murray v. UBS Securities, a retaliation suit arising under the Sarbanes-Oxley Act. Appellant Ziparo alleged that CSX supervisors asked him to falsify records, and that after he reported it, he was subjected to retaliatory threats and mistreatment. He was fired approximately a month later, after he made a mistake that led to property damage and could have led to a catastrophic derailment or collision. The trial court granted summary judgment to CSX, in part because Ziparo had failed to demonstrate a causal connection between his reporting and his termination.

The Second Circuit reversed, explaining that the FRSA causation standard required Ziparo to meet only a “contributing-factor causation standard,” meaning that the protective activity must be a factor that alone, or in combination with other factors, contributed to CSX’s adverse actions against him. It explicitly overruled several of its related conclusions in Tompkins v. Metro-North Commuter Railroad, 983 F.3d 74 (2d Cir. 2020), explaining that the Supreme Court’s reasoning in Murray required the Second Circuit to adopt the Murray causation standard. Specifically, FRSA plaintiffs no longer need to demonstrate an employer’s retaliatory motive, intent, or animus. Instead, they need only demonstrate that their protected activity “contributed” to the employer’s adverse employment action, including by circumstantial evidence such as sufficiently close temporal proximity.

In Hood v. Kindred Hospital, the trial court issued a decision dismissing a plaintiff’s case for non-compliance with New Jersey’s affidavit of merit (“AOM”) statute, relying on Hargett v. Hamilton Park for the proposition that an AOM referring generally to the defendant hospital’s nursing staff was an impermissible blanket AOM because it did not specifically identify the individuals who had purportedly deviated from the standard of care.

The Appellate Division reversed, clarifying that the Supreme Court in Hargett v. Hamilton Park did not establish a brightline rule requiring every individual identified as a defendant to be identified by name. Instead, the statute, as interpreted by Moschella v. Hackensack Meridian, requires only that the AOM “give[ ] reasonable notice of the class of professional whose conduct is challenged,” particularly when only one facility and its staff is involved, the claims are rooted in classic vicarious liability principles, and it is difficult to identify which personnel engaged in what conduct.

With this more relaxed reading of New Jersey’s AOM statute, healthcare clients should anticipate receiving more complaints that name more general categories of licensed professionals and even less information in AOMs.

In Poling v. Atlantic Mobile Health, the New Jersey Appellate Division affirmed that an expert report is required to prove a negligence claim arising from the professional care of an emergency responder.

The case arose from a March 23, 2019 emergency transport of the plaintiff to the hospital. The emergency responders had responded to a 911 call for an individual “too intoxicated to take care of herself.” When the emergency responders arrived on scene the plaintiff was already agitated. During the trip to the hospital plaintiff was agitated and arguing with the emergency technician. At some point she unbuckled herself from her stretcher and at some point stood up and sat on the bench without buckling herself. Plaintiff then threatened to exit the ambulance, at which point she was grabbed and held to the floor. Plaintiff sustained an ankle fracture at some point during this interaction.

Plaintiff made a claim that defendants, including an ambulance company and two EMTs, were responsible for her ankle injury due to the negligent care of her in the ambulance. Defendants submitted expert reports, including of an expert in emergency care, but Plaintiff did not serve any expert reports to support the claim that Defendants violated any standard of care.

The trial court granted summary judgment to defendants, explaining that plaintiff had alleged negligence by professionals in the course of discharging a duty in a professional capacity. The Appellate Division affirmed that plaintiff needed “an expert to prove that defendants breached the applicable standard of care for EMTs in this situation.” Without an expert the average juror would not know what a similarly situated emergency responder was required to do in these complex circumstances.

For these reasons the dismissal was affirmed by the Appellate Division.

Key Takeaway: In developing a case for the purpose of pursuing summary judgment it is important to establish through discovery that the claim arises out of alleged violations of professional standards, where the plaintiff attempts to pursue the claim under a theory of general negligence.

On October 21, 2025, the Appellate Division in Orlando v. Williams confirmed that plaintiffs cannot use their subjective complaints to satisfy the requirements to overcome the verbal threshold under N.J.S.A. 39:6A-8(a). As the Appellate Division explained, to overcome the verbal threshold at the summary-judgment stage, a plaintiff must present objective medical evidence of a permanent injury. In Orlando, the plaintiff provided no objective evidence, though he did refer to (but did not include) an MRI report. The Appellate Division confirmed that this was insufficient; even if Plaintiff had included the MRI report, it would not have sufficed, as MRI reports must be interpreted by a qualified physician and cannot be “bootstrapped into evidence.”

Key Takeaway: In assessing summary-judgment strategy, clients should examine whether the plaintiff has disclosed in discovery any objective evidence (radiology films and expert declarations, for example) of a permanent injury. If not, consider filing a motion for summary judgment on that basis.

The Massachusetts Supreme Judicial Court affirmed dismissal of a plaintiff’s claim under Mass. Gen. Laws Ann. Ch. 149, Section 148 (“MA Wage Act”), holding that a retention bonus is not considered “wages” under the MA Wage Act. Associate Justice Wolohojian authored the October 22, 2025 decision, which was joined by all Justices except Chief Justice Budd who authored a separate concurring opinion.

In Nunez v Syncsort Inc., 496 Mass 706 [2025] The Plaintiff and Defendant entered into an agreement for retention bonuses to be paid to the Plaintiff on two separate dates, provided that he was still employed by those dates and in good standing without any reduction in his work schedule. Plaintiff was actually paid both bonuses, but he was terminated on the same date that the second bonus was to be paid, and the bonus was paid eight days later. Under the MA Wage Act, wages due are to be paid on the date of termination. Plaintiff sued his employer under the theory that the MA Wage Act was violated in that he should have received the second bonus, which he argued is “wages,” on the date he was terminated.

The Court noted that the MA Wage Act does not specifically define “wages,” and the only “contingent compensation” expressly recognized in the MA Wage Act is commissions under certain circumstances. The Court further noted that prior attempts to construe other forms of contingent compensation as “wages” have failed primarily due to those types of compensation being contingent upon something other than the services or labor the employee is expected to provide. For example, accrued, unused sick time was held not to be wages because it was contingent upon a departing employee having worked a certain length of time and having not been terminated for cause. Similarly, discretionary stock option plans and/or distributions were held not to be wages because they were either contingent upon the length of time the employee remained with the company, or upon revenue.

The Court characterized the retention bonus at issue as, “additional compensation that was contingent, or conditioned, on [plaintiff’s] continued employment to dates set by [defendant] to which the plaintiff agreed.” Accordingly, the Court held that, “[t]he bonus payments were not made solely in exchange for the plaintiff’s labor or services[,]” and were therefore not “wages” contemplated by the MA Wage Act.

The general rule arising out of this decision can be found in the Court’s conclusion: payments which “[are] not made solely in exchange for the [employee’s] labor or services, but rather depend[ant] on additional contractual conditions, [are] additional contingent compensation outside the scope of the Wage Act[,]” although this may be further informed by the Chief Justice’s concurring opinion.

Chief Justice Budd’s concurring opinion seeks to, “…emphasize that the reason that the retention bonus does not qualify as a wage under the Wage Act is that it was offered in addition to the plaintiff’s regular pay, in exchange for something more than his regular work.” The concurring opinion discusses the proposition that, “…the mere existence of a contingency is not a reliable way to determine whether a payment is a wage,” hypothesizing that, “…if an employee could collect her weekly paycheck only by wearing a red shirt on payday, presumably the court would conclude that, notwithstanding the contingency, the payments would count as wages…” The Chief Justice’s conclusion is that, “[c]ontingencies matter to the analysis only to the extent that they inform the function of the underlying payment.”

In Chislett v. New York City Department of Education, the U.S. Court of Appeals for the Second Circuit held that mandatory implicit bias training can give rise to a race-based hostile work environment claim under Section 1983 if the training discusses a particular race “with a constant drumbeat of essentialist, deterministic, and negative language.”
This claim arose during Leslie Chislett’s employment from 2017 to 2019 with the New York State Department of Education (“DOE”) in the Office of Equity & Access (“OEA”). DOE employees were required to participate in implicit bias trainings, which were facilitated by both DOE staff and outside vendors. Chislett alleged that these “exacerbated [an] already racially-charged workplace.” Over the next two years, instructors during bias trainings mentioned several times that the “values of [w]hite culture are supremacist.” In sessions, there was persistent messaging to the effect that white culture is generally “defensive,” “entitled,” “paternalistic,” “power hoarders,” and “privileged.” During one training session, the Senior Executive Director of the OEA declared, “There is white toxicity in the air, and we all breathe it in.” In another, there was physical segregation of white employees and singling out of staff by race as participants physically “lined up to reveal the dividing ‘color line of privileges that favored whites.’” Outside the trainings, when Chislett disciplined or managed subordinates, she was allegedly called racist and labeled “white and fragile.” Chislett resigned from the DOE in September 2019.

The next month, Chislett initiated suit, alleging race discrimination under 42 U.S.C. § 1983, claiming that the DOE had a racially discriminatory policy that caused her demotion, created a hostile work environment, and led to her constructive discharge. The district court granted Defendants’ motion for summary judgment, dismissing all claims. Plaintiff appealed.

The Second Circuit found that a rational juror could find that Plaintiff experienced a racially hostile environment, therefore presenting an issue of fact precluding summary judgment. There were also questions of fact as to whether the racial harassment could be imputed to the DOE and as to whether the racial hostility stemmed from a municipal policy. However, the Court stated there was no evidence that Plaintiff was demoted or constructively discharged because of her race. The case was remanded for further proceedings.

Key Takeaway: Employers should review internal trainings including those outsourced to vendors to ensure the trainings do not include themes that could be interpreted as biased toward any protected group.

In Tranter v. Z&D Tour, Inc., the Supreme Court of Pennsylvania reversed the ruling of the Superior Court of Pennsylvania and held that a case was properly transferred from the Philadelphia Court of Common Pleas to the Westmoreland County on the basis of forum non conveniens. The Supreme Court of Pennsylvania held that transfer out of Philadelphia was appropriate, where the accident in question occurred 200 miles from Philadelphia and dozens of witnesses would be inconvenienced by travel to Philadelphia for trial.

This case arose from a multi-vehicle accident in Westmoreland County, in western Pennsylvania. The accident resulted in multiple emergency personnel responding to the accident from Westmoreland County as well as accident investigations by individuals residing in or around Westmoreland County. Yet, the plaintiffs filed their complaint in Philadelphia County on the eastern border of the state. The defense filed petitions to transfer the case to Westmoreland County, which was granted by the Court of Common Pleas of Philadelphia County. The trial court relied on the number of potential witnesses who would be forced to travel a significant distance to litigate the case.

The Superior Court reversed the trial court’s decision on the basis that the defendants had not identified individuals who were “key witnesses” who would provide “relevant and necessary” testimony that would be “critical to their defenses.” In reversing this decision and upholding the transfer of the case to Westmoreland County, the Supreme Court explained that the” key witness” standard articulated by the Superior Court was beyond the legal standard established for forum non conveniens motions.

The Supreme Court also explained that the heightened evidentiary requirement set forth by superior court was improper. Specifically, it noted that while such motions must be supported by detailed information on the record, no particular form of proof is required, including witness affidavits. It noted that specific evidentiary requirements would be impractical since these motions must be filed early in the case pre-discovery.

Key takeaway: Defendants should develop a record on forum non conveniens issues early, identifying potential fact witnesses, including non-parties that would be inconvenienced by the plaintiff’s choice of venue. In developing this record witness affidavits and other formal evidentiary proofs are not necessary but would be helpful to support the motion. It is not necessary that these witnesses are key or primary to the case

In Estate of Bainlardi v. Home Depot, the New Jersey Appellate Division held that the trial court had misused its discretion in admitting evidence of plaintiff’s prior medical history and falls where no competent medical opinion had been introduced attributing the subject injury to her medical condition or falls. The Court vacated the jury’s verdict and remanded the case for a new trial.

This claim arose when Bainlardi, a 79-year-old woman, fell while shopping at Home Depot. She was using a rolling walker when its front wheel collided with a bolt of a structural column situated in the middle of the store’s garden center. Before trial, the court denied Bainlardi’s limine motions to bar evidence of her prior falls, medical history, and use of a handicapped placard. At trial, defense counsel read Bainlardi’s deposition testimony regarding two prior falls, and an expert witness was cross-examined as to her prior medical history and falls. The jury found for Home Depot, finding that, although Home Depot was negligent, its negligence was not the proximate cause for Bainlardi’s fall.

The Appellate Division vacated the jury’s verdict and remanded for a new trial, finding that the evidence had the capacity to create an unjust result. The Court explained that evidence of plaintiff’s medical conditions and prior falls required expert testimony, especially where a reasonable explanation was provided for the cause of her fall: the bolt. Without competent medical opinion that plaintiff’s fall was attributable to her medical conditions or prior falls, the Court found this evidence was not probative and was highly prejudicial.

Key Takeaway: Additional consideration and caution should be given to the decision to proceed to trial without a responding expert where the opinions at issue relate to medical causation or other specialized issues.

In Slatowski v. Sig Sauer, the Third Circuit was called to determine whether Pennsylvania law requires a plaintiff in a products liability case to put forward a causation expert. Their answer? Not always.

When Slatowski, an immigration agent, drew his Sig Sauer P320 from his holster, it fired, discharging a bullet into his hip. He alleges that he did not touch the trigger, and that it fired because of Sig Sauer’s defective design. He presented two experts, both of whom explained the design of the gun and opined that it was defectively designed. Neither, however, could testify as to whether the defective design caused the discharge.

The Third Circuit found that, under Pennsylvania law, whether a question is too complicated for a jury depends on whether, given all the admissible evidence, the jury could answer the question without speculating. It further held that a plaintiff does not need a causation expert, even if the subject matter is complex, when lay testimony can tell the story of causation. In applying that standard to Slatowski, it explained that while the technical design of a gun is not common knowledge (and therefore required expert testimony), the causation question turned on questions answerable without expert testimony: whether Slatowski was telling the truth; whether something could have gotten into the holster; and whether the alternative safeties would have stopped debris or the holster from triggering the gun to fire.

Key Takeaway: In products liability matters it is more important than ever to explore the credibility and viability of factual claims, since those claims alone will be enough to bring the question of causation to the jury.

In Palmisano v. New Jersey Admin. Off. of the Cts., the New Jersey Appellate Division ruled that court administrators for municipal courts are employees of the municipality in which the court sits, not the State.

This claim arose when Palmisano, a municipal court administrator, was allegedly subjected to sexual harassment by Municipal Court Judge James B. Sloan, including sexist comments and an incident in which he grabbed her hair and yanked it back forcibly. Palmisano first sought relief via the N.J. Administrative Office of the Courts and Municipal Division (“AOC”). When the AOC declined to take action against Sloan, viewing it as a municipal matter, Palmisano sued both Sloan and the AOC under the N.J. Law Against Discrimination (“LAD”), N.J.S.A. 10:5-1 to -49, claiming that the AOC aided and abetted Sloan. The AOC moved to dismiss the complaint as against it, arguing that Palmisano failed to establish the employee-employer relationship requisite for a LAD claim. The trial court granted the AOC’s motion.

The Appellate Division affirmed the trial court’s order, primarily relying on statutes directing municipalities to “provide for an administrator” and “for their compensation.” N.J.S.A. 2B:12-10(a). Although Palmisano had pointed out that the AOC is responsible for certifying court administrators, this did not mean the AOC was her employer, as it does not have the power to hire or terminate her.

The Connecticut Appellate Court handed a win to rental companies facing negligent entrustment claims in Connecticut, refusing to impose upon them a duty to inspect their customers’ driver’s licenses.

In Stanford v. Nogiec, 233 Conn. App. 862 (2025), defendant Nogiec rented a vehicle from Enterprise. Before renting the vehicle to Nogiec, an Enterprise employee confirmed that Nogiec’s license was facially valid, contained no restrictions on its face, and had not expired. He also observed that Nogiec did not demonstrate any signs of impairment or other signs of unfitness to operate a vehicle. However, Nogiec, unbeknownst to Enterprise, was restricted from operating a vehicle without an Interlock device, which would prevent him from driving unless he was sober. Later that day, Nogiec struck Stanford, a pedestrian, while under the influence.

Plaintiffs asserted a negligent entrustment claim premised on Enterprise’s duty to inspect Nogiec’s license. Plaintiffs claimed that Enterprise was required investigate whether Nogiec’s license was suspended or restricted him from driving without the use of an Interlock device, a significant extension beyond the requirements outlined in Conn. Gen. Stat. § 14-153, which requires only that rental companies inspect the license and compare its signature to the signature on the contract.

Enterprise filed for summary judgment, arguing that it did not have a duty to investigate Nogiec’s driver’s license status, motor vehicle history, or criminal history. The trial court granted summary judgment, agreeing that Enterprise had no duty to do anything more than Conn. Gen. Stat. § 14-153 required.

The Appellate Court affirmed the trial court’s view that inspecting a license under the statute requires only that rental car companies confirm the license’s facial validity, explicitly rejecting the plaintiffs’ claim that the statute requires rental car companies to use an online database to investigate the status of a facially valid license. The Appellate Court also rejected the plaintiffs’ attempt to create a common-law duty that would require rental car companies to investigate the status of a facially valid license. Ultimately, the Court determined that Enterprise satisfied its duty when the employee who rented the vehicle to Nogiec confirmed he did not demonstrate any signs of impairment or unfitness. Therefore, Enterprise was entitled to summary judgment.

Key Takeaway: A rental car company’s duty under a negligent entrustment theory depends on whether readily apparent facts give the company a reason to suspect that the driver is incompetent to drive.

The Appellate Division of the New York Supreme Court, First Department, ruled that, where a plaintiff has made a prima facie case, defendants cannot defeat summary judgment by pointing to a contradictory statement made by the plaintiff in hospital records, where it has not been shown the plaintiff was provided with a translator, where the records are uncertified, and where the statement was not germane to the diagnosis or treatment.

In Berrones v 130 E. 18 Owners Corp., plaintiff Berrones sought partial summary judgment on his claim pursuant to Labor Law § 240(1) (relating to scaffolding in construction). Berrones had been performing bricklaying work on an elevated pipe scaffold when he fell through a gap between the scaffold and the building façade, hidden by plastic nailed to the scaffold and building. Defendants opposed plaintiff’s motion for summary judgment partly by disputing the way plaintiff was injured. Defendants put forward the testimony of two of defendants’ witnesses, which relayed the account of Berrones’s foreman that Berrones was injured while walking on top of a sidewalk shed carrying bricks. In addition, defendants pointed to records from Berrones’ treating hospital, which noted that Berrones “slipped and braced himself by bending the left knee.” The trial court granted summary judgment for Berrones.
Upon appeal, the First Department affirmed, echoing the trial court’s reasoning that the contractor’s testimony was inadmissible hearsay, and the notations in uncertified hospital records do not rebut plaintiff’s showing where no evidence was adduced that the information was properly translated for plaintiff and the disputed cause of plaintiff’s injury was not germane to his diagnosis or treatment.

Key Takeaway: This case demonstrated the value in pursuing record certification or authentication through subpoenaed testimony where the statements in the records are germane to defending a critical element of the claim.

The New Jersey Supreme Court defended the constitutionality of Daniel’s Law as applied to protect the home address of a police director from publication, even in a news story of legitimate public interest.

Daniel’s Law, passed in honor of a judge’s son who was shot and killed at his family home, protects current and former judges, police officers, prosecutors, and child protective investigators, as well as their immediate family members residing in the same household. The law empowers such people to send notice to those in possession of their home address or phone number, requiring them to refrain from disclosing that information. The law imposes criminal penalties for reckless or knowing disclosures of such information after due notice.

In Kratovil v. City of New Brunswick, Kratovil, the editor of a local news outlet in the City of New Brunswick, challenged Daniel’s Law as it applied to his intended disclosure of information relating to Caputo, a retired police officer and the Police Director and a Parking Authority Commissioner for the city. Kratovil obtained Caputo’s home address from Caputo’s voting profile at the Board of Elections in the City of Cape May and sought to publish a story arguing that Caputo could not properly administer to New Brunswick while living two hours away. After Kratovil shared Caputo’s address at a meeting of the New Brunswick City Council, Caputo sent Kratovil a notice pursuant to Daniel’s Law requesting that Kratovil cease the disclosure of his information. Kratovil filed suit arguing that Daniel’s Law is unconstitutional as applied to him under the freedom of speech and press guarantees of Article I, Paragraph 6 of the N.J. Constitution, and seeking injunctions barring the imposition of criminal or civil penalties against him for publishing Caputo’s full home address.

In affirming the decisions of the trial court and the Appellate Division, the N.J. Supreme Court was guided by the principles set forth by the U.S. Supreme Court in Smith v. Daily Mail Publishing Co., 443 U.S. 97, 98, 102-03 (1979) and Florida Star v. B.J.F., 491 U.S. 524, 530 (1989).

Applying the Daily Mail framework, the Court found that, first, Caputo’s home address was truthful, lawfully obtained, and related to a matter of public concern—namely, the issue of whether he lived too far away to effectively discharge his public duties. Second, the Court found that Daniel’s Law serves a state interest of the highest order—the safety and security of certain public officials in the justice system. Third, the Court found that Daniel’s Law is “carefully calibrated” to serve the state interest “by the least restrictive means,” as it is limited to discrete categories of public officials viewed to be at particular risk, implicates only addresses and phone numbers, and imposes no liability for publishing such information unless and until a covered person invokes the protection of the law by providing notice. Further, it is not so underinclusive and inadequate as to be struck down for that reason.

In a unanimous decision, the New Jersey Supreme Court clarified that municipalities and municipal corporations that engage in frivolous litigation are subject to sanctions under the FLS.

Borough of Englewood Cliffs (Borough) commenced a lawsuit against former attorneys who represented the Borough in a prior litigation. As part of that prior litigation, the attorneys advised the Borough to settle, but the Borough ultimately proceeded to trial and did not prevail. After turnover of members within the Borough’s Council, however, the Borough filed suit against the attorneys asserting, inter alia, malpractice. The Borough’s lawsuit against its former attorneys was ultimately dismissed with prejudice on a motion to dismiss for failure to state a claim. Additionally, the trial judge granted the defendants’ motion for sanctions and awarded attorney fees and costs totaling $216,484.45, finding that the Borough acted in bad faith to harass, delay, and cause malicious injury by filing frivolous pleadings in violation of N.J.S.A. 1:1-2, otherwise known as the New Jersey Frivolous Litigation Statute (FLS).

The Borough appealed the award of sanctions, arguing that the plain text of the FLS refers to a “party” or a “person,” and not a “public entity”. The Borough further argued that state sovereign immunity, which it argued the Legislature has not expressly waived in the FLS, insulates the Borough from liability.

The New Jersey Supreme Court assessed the legislative history and the historical text of the FLS and found that the Borough, as the plaintiff, is a “party” as contemplated by the FLS, and that the word “person” as it is found in the statute is interchangeable with “party.” The Court further held that, in any event, the Borough would be considered both a “party” and a “person” under the statute, which itself defines “person” to include “corporations,” and further defines a municipality as a “municipal corporation.” Finally, the Court rejected the Borough’s argument that it is immune through state sovereignty by, inter alia, citing Jinks v. Richland County, 538 U.S. 456, 466 (2003), which states that, “municipalities, unlike States, do not enjoy a constitutionally protected immunity from suit.” The Court addressed judicially created immunity. which protects municipalities from liability when carrying out governmental functions, as well as the New Jersey Tort Claims Act, which addressed the immunity of public entities and circumstances in which immunity is waived in negligence actions, but held that the instant case arises from a context entirely outside the New Jersey Tort Claims Act, and judicially created municipal immunity is not a barrier to holding the Borough liable under the FLS.

Key Takeaway: Municipalities should consult with counsel who are familiar with frivolous litigation rules when pursuing affirmative complaints or crossclaims and should ensure they are following all procedures and steps to protect their interests when served with notice pursuant to N.J.S.A. 1:1-2, during the course of litigation.

A New Jersey appellate panel has revived a wrongful death claim against New Jersey Transit, finding that statutory railroad immunity does not shield the agency when a pedestrian is lawfully using a designated crossing.

The appellate decision overturned a February 2024 summary judgment ruling in favor of New Jersey Transit and remanded the case back to the lower court over the fatal 2019 collision near Jersey City’s Exchange Place Light Rail Station.

The plaintiff was struck by a light rail train while crossing at a marked pedestrian path regulated by traffic signals. The crossing, located on New Jersey Transit’s Hudson-Bergen Light Rail system, was equipped with pedestrian control devices and monitored by video surveillance.

New Jersey Transit sought immunity under N.J.S.A 48:12-152, a statute which limits railroad liability from injuries or death as a result of trespassing and misuse of railroad property. The trial court granted summary judgment in favor of New Jersey Transit holding that the plaintiff was a trespasser on railroad property.

The Appellate Division disagreed. The Court held “property” within the meaning of the statute was not intended to include cross walks or other rights of way. Judges Marczyk and Paganelli asserted that the plaintiff’s alleged distraction did not equate to misuse of railroad property, let alone the crossing. The Court explained that negligently failing to observe the train before crossing the street does not equate to use of the cross-walk in a manner for which it was not intended. The two-judge panel emphasized that immunity under N.J.S.A 48:12-152 applies in limited circumstances – especially when a pedestrian is lawfully using a designated, signal-controlled crossing.

The Superior Court of New Jersey Appellate Division held that the elimination of the notice requirement of the Tort Claims Act (TCA) applies to common law claims directly related to the sexual abuse of a minor, and that the removal of the requirement under the Child Sexual Abuse Act (CSAA) that a passive abuser be “within the household” of the victim applies to any action filed after December 1, 2019, and is not limited to claims that accrued after December 1, 2019.

Plaintiff sued Warren Hills Board of Education (Board), Warren Hills Junior High School (School), and F.M. alleging sexual abuse by F.M. who was a custodian and wrestling coach at the School and asserting claims under, inter alia, the CSAA and common law claims of negligence. The Board and School moved for summary judgment arguing that the TCA barred plaintiff’s common law claims against them because plaintiff had not given notice of the claims and the 2019 amendment to the TCA removing the notice requirement did not apply to common law claims. They also argued that they were not passive abusers as contemplated by the CSAA because they were not a member of plaintiff’s household and the 2019 amendment to the CSAA eliminating the “within the household” requirement was intended to be applied prospectively and did not apply to plaintiff’s claim which accrued before 2019. The trial court denied the motion, and Board and School moved for leave to appeal.

The Appellate Division affirmed and remanded for further proceedings consistent with its decision. In reaching its holdings, the Court applied canons of judicial legislative interpretation and relied on the rationale of a prior decision which held that the elimination of the notice requirement of the TCA applied to a CSAA complaint filed after December 1, 2019 but expressly left open the question of whether the waiver of the TCA’s notice requirement also applied to common law claims that did not arise out of the CSAA. The Court held that the language of the 2019 amendment to the TCA providing that procedural notice requirements “shall not apply to an action at law for an injury resulting from the commission of sexual assault…” (emphasis added), is construed to include common law claims, and that the 2019 amendment to the CSAA should be applied to any case filed after December 1, 2019, regardless of when the claims accrued.

The New York Court of Appeals affirmed summary judgment in favor of the defendant employer, Madison County, holding that, “the evidence was insufficient to prove the [defendant] was on notice of the abuse.” In doing so, the Court provided guidance on the sufficiency of evidence proffered to establish an issue fact as to a defendant’s constructive notice of an employee’s misconduct. The decision was 6-1, with Judge Rivera dissenting.

Plaintiff was an 11 year old in the care of Madison County’s Department of Social Services. He alleged that over a period of three years he was sexually abused by his caseworker who had also abused several other children to whose cases he was assigned. The alleged sexual abuse occurred in the caseworker’s employer-issued car or at roadside stops or motels as the caseworker was driving Plaintiff to court proceedings, appointments, and placements. It was undisputed that Madison County had no actual knowledge.

Plaintiff filed suit against Madison County under the claim-revival provision of the Child Victims Act for its negligent hiring, supervision, and retention of the caseworker. Madison County moved for summary judgment and submitted testimony which included that of a caseworker supervisor who testified that while she reviewed caseworkers’ files she did not do so as regularly as she should have, and that the County had no handbook for how caseworkers should perform their duties.

Plaintiff opposed the motion relying, inter alia, on this testimony to demonstrate deficient and “lax” supervision, absence of caseworkers’ notes, and absence of policies sufficient to create an issue of fact regarding Madison County’s liability for negligent supervision. Plaintiff argued that if the supervisor had been more attentive in reviewing employees’ case notes, she would have realized that the caseworker in question was not taking any notes of his time with Plaintiff, thereby realizing the caseworker’s untoward behavior.

The Court rejected that argument, noting the faulty assumption that the absence of notes would itself be suspicious. The Court further noted that Plaintiff did not claim that any records kept by the caseworker would have contained any evidence of the abuse, and highlighted the fact that the primary role of caseworkers in this context was to transport children and monitor their progress with the only demonstrated expectation of documentation requirements being for the purpose of vehicle availability, inventory, and usage purposes, and not to monitor the whereabouts of the children being transported.

The Court held, “[i]t is simply too speculative to suggest that increased review of those kinds of records would have put the County on notice of the abuse.” The Court further held, “…we have never held that a party can prove negligent supervision by stating the employer should have known an employee was likely to engage in dangerous conduct without evidence showing that any prior conduct, warnings, or signs of risk to that effect. References to generalized norms or practices alone are not sufficient where, as here, there is nothing in the record that indicates the County had any opportunity or reason to know about the abuse.” (internal quotation marks and citations omitted). Finally, the Court held that Madison County’s practices should be analyzed within the context of the standard of care that was reasonable at the time, stating, “[c]ontrary to the dissent’s position, we must evaluate the reasonableness of the County’s supervision and training by the then-prevailing standards, not today’s…”

Key Takeaways: The Court’s decision establishes that deficiencies in an employer’s policies and/or procedures may not in themselves evince the employer’s constructive notice of an employee’s misconduct. Clients should consider summary judgment in CVA claims where the Plaintiff has no evidence of known suspicious behavior akin to abuse or no evidence that had the employer’s policies and/or procedures been followed, they may plausibly have led to the employer’s notice of abuse or a propensity commit acts of abuse.

In a unanimous decision, the New York Court of Appeals established that Plaintiffs wishing to bring suit against the State of New York under the claim-revival provision of New York’s Child Victims Act of 2019 must meet the “substantive pleading requirement” detailed in Section 11(b) of the Court of Claims Act (Section 11(b)). Section 11(b) requires Plaintiffs, inter alia, to, “state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained,” and provide a verified notice of intention to file a claim which must “set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated.” The Court noted Section 11(b)’s “guiding principle” that a claim “must be sufficiently definite to enable the State to investigate the claim promptly and to ascertain its liability under the circumstances.” (internal quotation marks, punctuation, and citations omitted).

Plaintiff alleged that he was subjected to various types of sexual abuse at a State-owned performing arts center by numerous male perpetrators during the years of 1986 through 1990. The complaint did not state the number of instances or the frequency of the alleged abuse, nor the identities of the alleged abusers beyond alleging they were State-employed teachers, coaches, and counselors as well as members of the public. Plaintiff alleged the abusers were known among the community as sexual predators.

The State moved to dismiss the claim for failure to comply with Section 11(b). The Court of Claims granted the State’s motion, holding that the CVA does not relax the requirements of Section 11(b) and that Plaintiff’s claim did not meet Section 11(b)’s standard. The Appellate Division, Third Department reversed, holding similarly that the CVA did not relax the requirements of Section 11(b), but that Plaintiff’s claim did meet Section 11(b)’s requirements in that the time period alleged was sufficient in light of the length of time, over four decades, that had passed since the alleged conduct, and that the allegations were otherwise sufficient to provide the State with the information necessary to conduct an investigation of the claim.

The Court of Appeals reversed the Third Department’s decision. The Court held, consistent with both lower courts, that the CVA did not relax the requirements of Section 11(b), but held that the allegations in Plaintiff’s claim did not meet the requisite specificity. The Court found that Plaintiff’s claim lacked information about the alleged abusers and whether they were Plaintiff’s teachers, coaches, or counselors; about whether adult supervision should have been provided and the extent to which the State was responsible for Plaintiff’s contact with the abusers; and about what brought Plaintiff repeatedly to the performing arts center during the time period in question or why he was frequently in the company of both members of the public and state employees while there. The Court held, “the allegations are too spare to enable the State promptly to investigate and ascertain the existence and extent of its liability…”

The Court noted the Appellate Division’s concern that, “it may still be difficult for victims of abuse that occurred decades ago to plead their claim with the specificity section 11(b) requires,” but stated it, “do[es] not have the leeway to exempt claims brought under the CVA from the limitations the [Court of Claims Act] imposes on the State’s waiver of immunity.” The Court found that, “[t]he CVA lacks any indication, let alone a clear expression, that the Legislature intended to exempt CVA claims from section 11(b)’s conditions; indeed, it does not amend or even mention the [Court of Claims Act’s] pleading requirements.”

Key Takeaway: State entities should scrutinize complaints filed against them under the CVA, and pursue pre-discovery motion practice for those complaints that do not comply with section 11(b).

The Connecticut Appellate Court was called to clarify Executive Order No. 7G’s impact on the two-year statute of limitations set forth in Conn. Gen. Stat § 52-584 in Marks v. GLT Development Corp., 230 Conn.App. 871. Executive Order No. 7G suspended the statute of limitations effective March 19, 2020 and lifted the suspension on March 1, 2021.

Marks, whose claim arose May 24, 2020 when he was injured by a garage-door malfunction, did not file his complaint until March 24, 2023. The trial court dismissed his complaint on the defendant’s motion due to the expiration of the statute of limitations, interpreting Executive Order No. 7G to suspend the statute of limitations until March 1, 2021, after which point the statute would begin to run again. Plaintiff appealed, arguing that he was entitled to a credit the length of the stay.

The Court affirmed the trial court’s interpretation, explaining that for claims arising between March 19, 2020 and March 1, 2021—when the suspension was in effect—the statute of limitations had begun to run on March 1, 2021 and thus expired on March 1, 2023.

In a unanimous decision, the New Jersey Supreme Court held that the evidentiary record was insufficient to establish the minimum contacts required to authorize a New Jersey court to exercise specific personal jurisdiction over the Archdiocese of Philadelphia for alleged sexual abuse that occurred during an overnight trip to a private home in New Jersey.

Plaintiff commenced a lawsuit under the New Jersey Child Victims Act alleging that the defendant priest (priest) sexually abused him during an overnight trip to a private home in New Jersey. The priest was assigned by the Archdiocese of Philadelphia to a Pennsylvania parish. The Archdiocese maintained its principal office in Philadelphia and operated parishes, schools, and other facilities in five counties located in Pennsylvania. Discovery revealed that the Archdiocese previously owned property in New Jersey, but that it no longer owns property, nor conducts business in New Jersey. A witness for the Archdiocese testified that priests in the Archdiocese are supervised by the Archbishop of Philadelphia and that priests have sometimes accompanied parishioners traveling outside of the geographical boundaries of the Archdiocese. The priest testified that his family vacationed in Margate, New Jersey where his family owned two residences. and where the alleged abuse occurred.

Plaintiff did not argue as a basis for personal jurisdiction that the Archdiocese knew that the priest had taken him to New Jersey. Rather, he argued that the Archdiocese enabled the defendant priest to take plaintiff to New Jersey and sexually assault him by conferring the status of priest upon him, a status that allegedly played a large role in plaintiff’s mother granting permission for plaintiff to go on the trip. Plaintiff additionally argued that the priest was an agent of the Archdiocese by virtue of its authority over the priest’s work.

The Trial court held that the Archdiocese’s past ownership of property in New Jersey was not sufficient to authorize personal jurisdiction in that the Archdiocese had not purposefully availed itself of the privilege of conducting activities in New Jersey by owning property. The Appellate Division similarly found that the Archdiocese’s former ownership of properties in New Jersey did not have any relation to plaintiff’s allegation of abuse by the defendant priest. The Appellate Division further held that the defendant priest was not acting within the scope of his responsibilities as a priest when he sexually assaulted plaintiff, thereby rejecting personal jurisdiction based on an agency theory that the Archdiocese employed and controlled the priest.

The Court agreed with the trial court and the Appellate Division that the record does not support findings that the Archdiocese purposefully availed itself of the privilege of conducting activities in New Jersey and that the action arose from or relates to the Archdiocese’s contacts with New Jersey. The Court rejected plaintiff’s theory that the defendant’s status as a priest facilitated his sexual assault and that the Archdiocese’s authority over the priest’s work rendered the priest an agent of the Archdiocese when he traveled to New Jersey, thus subjecting the Archdiocese to personal jurisdiction. The Court held that agency principles governing the question of a principal’s liability for the acts of an agent do not displace the minimum contacts due process analysis in a personal jurisdiction inquiry of whether the Archdiocese purposefully availed itself of the privilege of conducting activities in New Jersey, and whether the claims arose from or related to the Archdiocese’s contacts with new Jersey. The Court held that the Archdiocese’s oversight of the defendant priest did not establish the requisite nexus with New Jersey.

Conn. Gen. Stat § 31-51q allows employees to recover against an employer who “subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution” and certain state constitutional provisions, “provided such activity does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer.” In Michel v. City of Hartford, the Connecticut Appellate Court resolved a Superior Court split, making it the employer’s burden to plead interference with the employee’s job or working relationship as a special defense, rather than requiring a plaintiff to plead noninterference.

In February 2016, a Hartford Police Department detective reported to Plaintiff, a sergeant, that the detective’s supervisor was discriminating against him on the basis of his race. Plaintiff reported the allegations to his lieutenant, who ordered him not to get involved and that he would take care of the complaint. After Plaintiff learned that the lieutenant had told the detective he could not help him, the Plaintiff voiced disagreement with the lieutenant’s approach and recommended that the detective contact their union or internal affairs.

Subsequently, Plaintiff was removed from supervisory roles, denied assignments that would result in overtime, assigned to inconvenient shifts, and given undesirable assignments. After giving testimony supporting the detective’s complaint, he was denied a promotion to commander, assigned to unfavorable shifts, and threatened with discipline for taking medical leave. Plaintiff then sued Defendants for retaliating against him on the basis of his opposition to racial discrimination and providing truthful testimony in support of the detective. The trial court dismissed Plaintiff’s claims under § 31-51q, finding that Plaintiff had not sufficiently established that his speech was on a matter of public concern and that he had not adequately pleaded noninterference (i.e., that his speech had not interfered with his job performance or working relationship).

In overturning the trial court’s ruling, the appellate court explained, first, that the plaintiff’s testimony on behalf of the detective constituted speech on a matter of public concern. The appellate court held, as a matter of first impression, that plaintiffs do not carry the burden of proving noninterference under § 31-51q; instead, defendants must raise interference as a special defense.

Key Takeaway: Employers intending to discipline employees for conduct implicating § 31-51q claims should seek counsel on whether the effects of the conduct satisfy the interference requirement before undertaking the discipline. In responding to a claim pursuant to § 31-51q employers must be prepared to plead interference as a special defense and put forth evidence related to interference at the time of trial.