blog.cuyler.com

After 21 years, the puck will finally drop for the “Greatest Game Never Played”. In 1989, the New Jersey State Ice Hockey Championship between Delbarton School of Morristown and St. Joseph’s School of Montvale was cancelled due to a measles outbreak. The teams were declared “Co Champions” by the NJSIAA. As one of the most highly anticipated hockey championships in State history, this game generated great debate over who would have won. On April 3rd, 2010, the debate will end. Both teams have reassembled and will battle it out one last time for Charity. – http://www.frozenflashback.com

Cuyler Burk director, Andy Craig, played for Debarton in 1988 and he’s playing for them again.  We stopped by their practice earlier and grabbed some footage and then asked our video editing program to make it look slick.  No matter how hard we tried, we couldn’t get it to focus on Andy.  He’s in the green jersey, number 19.

Cuyler Burk is pleased to announce that SuperLawyers magazine has once again seen fit to include five of its lawyers in their 2010 issue.

Returning to the list are Richard Crooker (2010, 2009), Stephen Cuyler (2010, 2009, 2008, 2007) and Barry Osmun (2010, 2009, 2008).

For the third year in a row, Jaclyn DiLascio Malyk has been named as a “Rising Star” and joining her for the first time in those ranks is Tanya Mascarich.

You can get further infomation from the SuperLawyers site:  http://www.superlawyers.com

On March 12, 2010, the Special Masters of the United States Court of Federal Claims issued decisions on the second round of test cases in the Autism Omnibus Proceeding.  The Special Masters found that the petitioners did not meet their burden of proving that thimerosal-containing vaccines contributed to the development of autism.

The Omnibus Autism Proceeding consists of over 5,500 cases alleging that certain childhood vaccinations caused or contributed to the child’s diagnosis of autism or autism spectrum disorder.  As part of the proceeding, three test cases were selected and tried under two general causation theories:  (1) that the MMR vaccine and vaccines that contained thimerosal (a compound consisting of 49.6% mercury used a preservative in certain vaccines) combined to cause autism; and (2) that thimerosal-containing vaccines alone caused the childrens’ autism.  The decisions on these two general causation theories will then be applied to the over 5,500 individual cases.

In February 2009, the Special Masters decided the first general causation theory against the families and on Friday rejected the second causation theory.

In the second causation theory decided on March 12, 2010, the petitioners asserted that the thimerosal in the vaccines substantially contributed to the causation of autism in genetically susceptible individuals.  The petitioners contended that the mercury contained in thimerosal, known as “ethylmercury,” made its way into the brain, converted into inorganic mercury and that the inorganic mercury then triggered a process of “neuroinflammation,” including “oxidative stress,” in the childrens’ brains.  Petitioners contended that the neuroinflammation impaired and disrupted brain function, resulting in autistic symptoms.

The Special Masters found that Petitioners did not meet their burden of proving that thimerosal-containing vaccines can contribute to the cause of autism.  The lengthy decisions may be found on the United States Court of Federal Claims website. www.uscfc.uscourts.gov.

Motions for review of the February 2009 Special Master decisions on the first general causation theory were filed with the Court of Federal Claims and denied in July and August 2009.  Two of the three February 2009 Special Master decisions on the first general causation theory were then appealed to the Court of Appeals of the Federal Circuit and are still pending.  It is likely that the Special Masters’ decisions on the second general causation theory decided on March 12, 2010 will also be appealed.

In this declining economy, those who have a financial obligation to support a former spouse or children, may be finding it harder and harder to meet their obligations.  Unfortunately, many people do not know that they may be able to reduce their alimony and/or child support obligations due to their economic circumstances.  It may not be easy to accomplish, but under the right circumstances and with the right guidance and direction, it can be done.   

If you are seeking to modify your obligations, you must demonstrate to the court that you qualify for modification.  The law states that anyone who has a substantial change in circumstances may be entitled to modification of their alimony and/or child support obligations.  So what constitutes a sufficient “change of circumstances?”  Whether there is a sufficient change of circumstances to warrant a modification is a determination made on a case by case basis.  However, parties typically seek downward modification of alimony where there has been:  (1) a reduction in income; (2) retirement; (3) illness; and/or (4) cohabitation of the spouse receiving alimony with another person.  A party seeking downward modification of alimony has the burden of proving his/her inability to pay.

What does this mean and how does this affect you?  We all know that the economy has resulted in a financial downturn for many people.  If you are someone who is no longer employed or has experienced a loss of income, for example, a reduction in hours at your place of employment and mounting debt, you may qualify.  However, as noted above, modification is an issue determined on a case by case basis and you must demonstrate to the court that your economic downturn constitutes sufficient changed circumstances.

As a note of reference, an application for modification of child support is similar to an application for alimony in that you have to show changed circumstances for both.  However, the substantial change in circumstances standard for modification of child support is usually based upon a change in income of the parties at the time the application is filed as well as the child support guidelines.  As a result, a child support award takes into account the current lifestyle of the parties rather than the marital lifestyle, making it is a little easier to modify child support.  Therefore, reasons that a court may consider a sufficient change in circumstances for the purposes of modifying child support include a change in either party’s income, including one party receiving a raise, additional children being born (more dependents), or even a simple passage of time. 

On the other hand, when dealing with the issue of modification of alimony, the standard still takes into account the marital standard of living and the court will consider the same circumstances it considered at the time of divorce, including the age and health of the parties, the length of the marriage, the income of the parties, the assets received by way of equitable distribution in the divorce, the dependent spouse’s needs, the other spouse’s ability to pay, and the ability of the dependent spouse to contribute to his/her own needs. 

In this economy, more and more applications for reduction of alimony are being made because of job loss or income reduction.  So how does one demonstrate changed circumstances to the court?  In order to be successful on an application, the party seeking the reduction has to demonstrate several things.  First, the spouse seeking modification must show that the loss of employment or income reduction was in good faith and not purposeful so as to avoid paying alimony.  If the court determines that the party’s unemployment is in bad faith, or that the party is underemployed, it can impute income to the party.  Especially now, when applications are so common and any change may be viewed as temporary, courts may also consider the paying party’s income other than salary and wages as well as any assets to determine whether the application is warranted or whether payment can be made from some other source accessible to the payor spouse.  Second, the payor spouse has to demonstrate that he/she put in enough time and effort to find another job.  In order to show this, you may want to submit copies of letters and resumes sent to employers, along with any rejection letters, and show that you expanded your job search in terms of location or the type of position sought if no comparable job was found.  The court may also look at your lifestyle to determine whether you have had to downgrade it to get by.    

The bottom line is you should know your rights.  Do not wait and do nothing.  While the standard is tough, the biggest mistake a party can make is to stop paying and not do anything, which can lead to further monetary problems.  If you are no longer able to pay alimony and/or child support, you should file an application for modification with the court.  However, since the courts are wary of parties who are using the economy to reduce or terminate their alimony obligation where there is insufficient evidence to demonstrate a real need to do so, if you are seeking downward modification you must be prepared to prove that a substantial change in circumstances has occurred, which is involuntary despite your reasonable efforts.

As of September 1, 2009, the New Jersey Court Rules require that personal identifiers be redacted in papers filed with the Court, largely due to the new rules allowing public access to court documents. This is similar to what practitioners have been doing in the Federal Courts. There are, however, some differences between the State and Federal requirements.

New Jersey State Court

Attorneys must certify that personal identifiers have been and will be redacted in all filings. The certification language is on the new Case Information Statement, so signing the new CIS satisfies the certification requirement. If you are filing an initial pleading in a court that doesn’t use a CIS (e.g. Special Civil Part), then you have to add the following language to your first filed pleading: “I certify that confidential personal identifiers have been redacted from documents now submitted in the future in accordance with Rule 1:38-7(b).”

Per Rule 1:38-7(a), the following are considered confidential personal identifiers and  must be redacted: Social Security number, driver’s license number, vehicle plate number, insurance policy number, active financial account number and active credit card number. In the event an active financial account is the subject of litigation, the number should be redacted except for the last four digits. R. 1:38-(b). By extension, insurance policy and credit card numbers likewise could be identified by only the last four digits.  Although Rule 1:38-7 does not address the identification of minors, it is a good practice to identify them only by their initials.

Federal Court

Federal Rule of Civil Procedure 5.2 requires that the following be redacted in any filed document: Social Security number, taxpayer identification number, date of birth, the name of a minor, and a financial account number.  The following information, however, may remain: the last four digits of a Social Security or taxpayer identification number, the year of a person’s birth, a minor’s initials, the last four digits of a financial account number.

Quick Reference Guide

The U.S. Department of Justice recently filed an action seeking to recover conditional Medicare payments paid on behalf of certain individuals who also received compensation as part of a $300 million PCB settlement entered into almost six years earlier. The complaint seeks to recover damages from the plaintiffs’ attorneys, the defendant PCB manufacturers and two of their insurers for the conditional payments Medicare made on behalf of approximately 900 individuals. (Medicare will pay certain expenses on a conditional basis where the party primarily responsible has not paid, and then it can recover such conditional payments from the primary payer.) In addition to recovery of the conditional payments, the complaint also seeks double damages. Consequently, if all these claims are successful against them, the insurers could have to pay certain claims or portions of claims three times over.

In 2003 Monsanto, Pharmacia and Solutia settled several related suits in Alabama involving approximately 20,000 plaintiffs alleging injuries caused by the manufacture, release and disposal of PCBs. The $300 million Abernathy portion of the settlement involved several consolidated lawsuits filed on behalf of approximately 3,500 Anniston, Alabama residents who claimed that PCBs released in the Anniston area lowered their property values and caused them personal injury.

The Abernathy settlement involved the creation of a $300 million fund to process the settlement payments. The PCB manufacturers, along with two of the insurers of one of the PCB manufacturers, namely Travelers and AIG, paid monies into the Abernathy Settlement fund.  Medicare alleges that no provision was made for reimbursement of the conditional Medicare payments made on behalf of the approximately 900 plaintiffs that received these Medicare benefits.

The complaint is venued in United States District Court for the Northern District of Alabama. United States v. James J Stricker, et.al CV-09-PT-2423E.  Filed pursuant to the Medicare Secondary Payer Statute and the regulations promulgated under the statute, the complaint alleges that 42 CFR §411.25 obligated the defendants to notify Medicare of any settlement, award, judgment or other payment that was made when the case was settled. The complaint alleges that the defendants’ failure to notify Medicare entitles Medicare to a double recovery for any payments that are owed pursuant to 42 U.S.C. § 1395y(b) (2) (B) (ii) and 42 C.F.R. § 411.24 (c) (2).

There has been significant effort and focus recently in industry to address the Medicare Reporting requirements that became effective as of January 1, 2010. These efforts have been concentrated on avoiding the imposition of certain statutory fines for failing to properly report settlements. However, the Stricker case cautions that such fines are only one potential financial detriment that can result from failing to report liability settlements. Medicare has now made it abundantly clear that it will seek double damages for recovery of any conditional payments where Medicare was not properly notified of a liability settlement. Medicare’s potential double damages recovery for non-reported claims also predates the new Medicare Reporting requirements. Indeed, the Stricker case is not based on the newly effective Medicare Reporting requirements. Given the six year statute of limitations, there is potential for double damages liability for such settlements going back as much as six years.

A PDF of the complaint is available here: United States v. James J Stricker, et.al CV-09-PT-2423E.

In its November 12, 2009 decision in Baughman v. United States Liability Insurance, Civil No. 08-290 (JBS/KW) the New Jersey Federal District Court made a number of significant rulings in the environmental and toxic tort insurance coverage area.  The insureds had sought defense and indemnity for claims made in a number of related lawsuits arising out of mercury contamination of the insureds’ day care center. 

The Court found:

1. Claims for medical monitoring of children exposed to mercury contamination at the center that was formerly a thermometer manufacturing building are “damages” under the CGL policy issued to the wife of the couple who owned the center. Relying on the New Jersey Supreme Court case in Ayers v. Twp. of Jackson, 106 N.J. 557 (1987), Judge Simandle found that medical monitoring, when court ordered, is no different than the clean up costs at waste sites recognized as “damages” in Morton Int’l., Inc. v. Gen. Accident Ins. Co., 134 N.J. 1 (1993).  The Court stated at p. 15 that New Jersey courts have not directly addressed this issue, but then goes on to cite cases from other jurisdictions in support of its decisions.  See p. 15 of Baughman decision.
2. The underlying suits constitute claims for Bodily Injuries even when there are no allegations that physical symptoms have yet manifested.  Instead at p. 18, Judge Simandle states: “Regardless, all underlying plaintiffs allege that they were exposed to mercury and that this exposure has increased the risk of illness for those plaintiffs.  {citations omitted}  This constitutes ‘bodily injury’ under the CGL policy.”  The Court cites the New Jersey continuous trigger cases as the basis for this ruling, which appears inappropriate since the science behind those cases was that there was injury at the time of exposure to, for example, asbestos, and the claimant now had manifested physical symptoms tied to the exposure.  See Owens-Illinois, Inc. v. United Ins. Co., 138 N.J. 437 (1994).
3. The absolute pollution exclusion does not bar coverage because the mercury exposure claims do not involve traditional environmental pollution.  In this case, “Indoor Pollution” was distinguished by the Court from the pollution covered by the exclusion.  What that means is something the Court concedes is not defined in the cases.  Instead it is defined more by what it does not include.  On p. 22 of Baughman, Judge Simandle relies on the New Jersey Supreme Court case in Nav-Its, Inc. v. Selective Ins. Co., 183 N.J. 110 (1999) to conclude that mercury exposure confined within a building is not a traditional pollution claim.  Nav-Its involved fumes in an office building caused by a floor sealant.  Judge Simandle, from that case and a review of the facts from cases cited in Nav-Its from other jurisdictions, then makes the broad pronouncement that the exclusion does not apply to indoor pollution.  There is nothing in the language of the exclusion that suggests the limitation found by the Court.  The fact that the previous thermometer manufacturer failed to clean up the premises when it left appears to be no different from the everyday traditional actions to clean up or remediate when a company leaves a site or closes operations.  It is noted on p. 5 of the decision that in June 1996 the NJDEP added the site to its known contaminated sites where it remained until 2004 (why it was removed from the list is not known from the decision).  The history and facts of the site and contamination fall more within the traditional pollution case.

Whether an appeal will be taken is not known.  But this case again weakens the absolute pollution exclusion in New Jersey.

A PDF of the Opinion is available.

Cuyler Burk is pleased to announce that SuperLawyers magazine has included five of its lawyers in their 2009 issue.

Richard Crooker and Peter Petrou make their debut on the SuperLawyer list this year.  Joining them are returnees Stephen Cuyler (2007, 2008) and Barry Osmun (2008). 

For the second year in a row, Jaclyn DiLascio Malyk has been named as a “Rising Star.”

You can get futher infomation from the SuperLawyers site:  http://www.superlawyers.com

The Special Masters of the United States Court of Federal Claims issued its highly anticipated decisions today on the first three test cases in the Autism Omnibus Proceeding. In all three cases, the court found insufficient evidence of a causal link between the vaccines and autism.

The Omnibus Autism Proceeding consists of over 5,000 cases alleging that certain childhood vaccinations caused or contributed to the child’s diagnosis of autism or autism spectrum disorder. As part of the proceeding, three test cases were selected and tried under two general causation theories: (1) that the MMR vaccine and vaccines that contained thimerosal (a compound consisting of 49.6% mercury used as a preservative in certain vaccines) combined to cause autism; and (2) that thimerosal-containing vaccines alone caused the childrens’ autism. The decisions on these two general causation theories will then be applied to the over 5,000 individual cases.

The three test cases decided today pertained to the first general causation theory. The Special Masters issued separate decisions on each of the three test cases. The lengthy decisions may be found on the United States Court of Federal Claims website.

Hearings on the three test cases on the second general causation theory, that thimerosal-containing vaccines alone can cause autism, were completed in July of 2008. Decisions on the second general causation theory are not expected for a few months.

In recognition of the economic power of privately held businesses, DiversityBusiness.com, the nations’ leading business-to-business internet site, recently named Cuyler Burk, P.C. one of the Top 100 Women Owned Businesses in the State of New Jersey.

“Entrepreneurs are a growing force in the U.S. economy, and a force to be reckoned with,” said Kenton Clarke, CEO of Computer Consulting Associates International, the company that built DiversityBusiness.com. This is a whole business segment that can carry its own, that provides jobs, products and services, and generates wealth for their communities. These are the new leaders in American business.”

“We are honored to be counted among such extraordinary women,” said Jo Ann Burk, CEO of Cuyler Burk, LLP.

The List

This List is a classification that represents the top small businesses in the U.S., in sectors such as technology, manufacturing, food service and professional services. Large organizational buyers throughout the country that do business with multicultural, small and women-owned businesses use the list. The List is produced annually by DiversityBusiness.com, the nation’s leading multicultural B2B Internet portal that links large organizational buyers to multicultural product and service suppliers.

The winning companies will be honored at a special awards ceremony at DiversityBusiness.com’s “9th Annual Multicultural Business Conference”, taking place April 29 – May 1, 2009 at the Disney’s Contemporary Resort in Orlando, Florida.

For the complete list of winning companies, please visit: www.diversitybusiness.com

Launched in 1999, DiversityBusiness, with over 46,000 members, is the largest organization of diversity owned businesses throughout the United States that provide goods and services to Fortune 1000 companies, government agencies, and colleges and universities. DiversityBusiness provides research and data collection services for diversity including the “Top 50 Organizations for Multicultural Business Opportunities”, “Top 500 Diversity Owned Companies in America”, and others.

Its research has been recognized and published by Forbes Magazine, Business Week and thousands of other print and internet publications. The site has gained national recognition and has won numerous awards for its content and design. It is a leading provider of Supplier Diversity management tools and has the most widely distributed Diversity magazine in the United States. DiversityBusiness.com is produced by Computer Consulting Associates International Inc. (CCAii.com) of Southport, CT. Founded in 1980.