Document o9n02GZN2Z9wppEwKJDkZ3Low

The Aluminum Association 900 l9lh Si N W W.o'.hinqion, O C 2000G Phono (202) 8G2-5100 1 elex / 10 822 1 1 29 TAX (202) 802 1)10-1 June 10, 1993 Ladies and Gentlemen: The Industrial Disease Standards Panel in Ontario sent us their report to the Wprkers' Compensation Board on Respiratory Complications among Workers Receiving Compensation for Non-malignant Respiratory Disease. A copy is enclosed. Also enclosed is a copy of an article that appeared in the New Jersey Law Journal regarding a claim of aluminum toxicity from occupational exposure to aluminum. The claimant, an employee of Continental Can Company was found to have elevated levels of aluminum in his blood, according to the testimony. SGE/kyg Epstein irector C60776 0001 IJt N J l_J. 449..:w JKHSEV MW 7QHHNAU fT.HWIMKY * 1993 1' ~~61 iwnwma vnu rt f.ppallata OUUIon; StiU v. Bamot. A-245J9ir2. nptmou by SVAInitN. J A D dcoiktj limiiiy 15. 1991. ipptrij (<k puN*riiinn J, 1991 (Write ludget A* tell. (><<* **! Stillman On appeal Ikmi the l.aw Oivin. Somrttet Cramy |^*t hr.>-* |oIk< Coleman | DOS Nn |4 J cum (VlrnljiK i imitcirii fra at KmprJ hutgljry of an suiomidtik. n>l tnnriHf4 iuiuIi upon a l fnl<V(fnvnl offVer A fury n rm ptwN aite ttv piniri *fft dirwird to be irarty M the Wlowmj morning TV ne11 iMMnmf (he t( tiUtM pmuxuKM itvfnrd w the fJviKd (Sc court ih<i her offne *n having dilfifuity turning the victim of the illrpiJ attempted hurfliry The piowutoi toM the court that police ffo h*d bet* km to the kiiai t home hut lhit the was tint there, and that a prmrtuttx i rcprtMttutivc had railed her place of employment but that the ti not there either. The protect#*or alto ttated that there arete no report* of automobtle accidents or hospital admission* heh mtght ca ptain the 'tnest i absence. The prosecutor then requested the nun to continue the trial for one day to that the nhereabouu of (hit victim could be determined. The court denied the prosecutor's application At 10)5 a m the court discharged the jury and declared a mistrial Defendant pre served hit right to make an appropri ate motion regarding he declaration of mistrial (If trial court teneeivc* that difficulty in locating a iwn may require the declaration of a mistrial or other remedial metsure, the court should require a conqricte record of the relevant facts to be placed on the record before it ad*. TV trial court failed to property dis charge this retpontibiiity here ! De fendant's (notion to dismiss the tndionen on the ground that a retrwl is barred by double jeopardy was denied h is firmly established (hat jeopardy attaches when a jury h selected and mom. Therefore, if the court de clares a mistrial without the defen dant*! consent after a jury is sworn. revtal is barred by double jeopardy unless there was a "rrwnifeut neccstrfy" for the mtitnel or the '`ends of public p#Kc" would be defeated by sn acquittal. United States a. Otiu*(, *24 U S 600. 406-07 (1976). "TV underlying hypothesis" of this rule k that "the ual once started should proceed lo ns conclusion " Id at 406. A inal court's failure to consider less dmttic alternatives than tV declara tor** of a mittnal is one circumstance which hai led reviewing courts lo conclude that there was an absence of "manifest necessity '' for a austral. Although (he sudden sersous illness or unetpreted disappearance of a <rua( witness could rst % "mamfeu neentrty" for the dcclaratmn of a miurtaf which would allow the State to tciry a defendant, temporary absence of a witness it an msuffieM Thus, w j*ai< * (97 N I t-fri tan tApp fliv l(Mi, the <*im of the alleged offense. b> rfwrently wt ditmrlmrd m runpei- lie with iV State tur personal re# tons, failed to respond 10 subpoena Defense counsel seceded so the court s request te mo for a mkarsal. State Digests whh the ervurt then glkiwrrt TV rnqwneitog of s new jury tnri retrial of iklrnliM under these c mum uamev wt Saned by dmrMe yr"P a.dy II ibe<e he any essence > ihe drainne of jeopardy, it must be that the Suit may not retreat (tom the field when its case turns sour awl then be permitted V> sally forth on a future day before a new piry when mi cate is refreshed and icmlofced Id at 150 51 field TVte was a similar absence in (hr* ease of the hmd of "manifest necessity' which could justify the dtrbtMiM of a mistrial wnhosn the defendant corsient TV court took ten drastic action solely because an mqmrijAt prosecution witness failed M appear wnhm the first hour and a half of the court day TV court was given no reason so believe that thS wnnets was seriously HI or that Vr absence was more than temporary Therefore, tee court should hast *ntefwd that tee witnest could be produced tf tec State's motion for brief continuance were granted. Al ternatively. the court could have in sisted that the State proceed with the remainder of its case. TV State's proof of tec charge of aggravated assault upon a law enforcement of ficer was not in any way dependent on tec testimony of the missing wit ness. Finally, tee trial court's finding that defendant acquiesced m the dcclaraina of a nwtrnal is (ejected To tee contrary, when the court declared a mmttal sue spnme. defendant epress!y reserved his right so move for a tennul of the charges. evened and remanded for entry of a judgment of arquicul. Far appellant -- McDonald. Rogers 6 Rtuolo (Michael J. Rogers cm tee brief) For respondent -- Nicholas L. Bissell. Jr., Somerset County froaecutor (Nicholas A. Gtudku. III. As sistant Prosecutor, on tee brief). BE0N.THE ALERT... ALERT wwmmmi - For details " / about how to' rocelio this pagooo. WORKERS PENSATION jiidfr't finding that petitioner did nnt suffer fmm aluminum (titlrlly b supported bi substantial credible evidence In the evened. tV comprnsahltity of h claimed psy chiatric disability is not dependent on a prior showing of same physical disability but aw demonstrable ob jective medic at evidence that repeti tive stimuli (here, aluminum dust and fumesl. viewed realistically, were peculiar tc bb workplace and that hk claimed traumatic stress disorder k dwr In material degree lo this stimuli; petitioner's subjective reaction k not la be completely disregarded, and whether a psy chiatric disorder arising from hk perception that he wffmd from a disease dor to devoted krveks bf aluminum In hk Mood ta sufficient kto meet hk burden of proof te be determined by the compensation judge on remand, rawrtdeflng the totality of fadart Including the na- eitcnt of hk actual etpoeure < aluminum, the frasanahkoLu of hk psychological nip tun ta >ta tarsdl lion, and aVthrr aoy unrelated hk disorder. AppoiUto OMtlnrt; Wamawahi v. Canllrsaniol Can Campany. A6I0J-90TS; opinion by Hutj, I.A.O.: decided January g. 199); approved far paWcaio* fanuary 79. 199). Before lodges Gauikin. Navcy and Stem On appeal from tee Divi sion of Workers' Compsmuon. Petitioner Keanctli Wcrnowski worked for respondew* Continental Can from January 1971 te July 1966. He described tec conditions at tee plant at "very mtery. cloudy" and ebaerved dual panicles on his clothing and tkm on a daily bask. On occasion he detected stexr dun pacucfca m hia mucus. In tec carty 1960s. V devel oped nausea, nugramc headaches, and dtaxmess. He began te rnffer weight *ou and a numhiuit an te kft aide of hk body, la October 1965 he ought medical help. Dr. Mthoa Bmuria. sn Internist, conducted a smci of Mood tesu that disclosed ekvated aluminum levels, which he attributed te petitioner's occupation He advised petitioner teat V should not be uortmg with alum inum. Consequently. pclUtener left hk employmew wste Cernmewat Can. Dr. Bronsteio concluded teat he wu totally disabled because of aluminum tetieny and associated aniwry. Dr. Samuel FoAork. pcinioncr't psychiainst, esificf teat he suffered from '`neurotogicst residuals*' and brain damage. anributaMc to bk cs- posurt te nosious aluminum hum and dust. He fssed tetobslny at IS percent partial total, newrepsyehiatric. Dr. Roland Goodman, an imemisl, wi of tec view teat tee ttunmum toikity and pnniowrfs "severe neutopsyehiatr condmon" rendered h-m wily trf pnravariy disabled esgumfcut's espen. Dr Howard Kipprn. rn uunw. (mute m evi dence of aluminum tesy and con cluded teat petumner'a depression und wren disorder wo* aawckted wnh hk employ mew. Respondent's py<hiJHiM agreed, noting that al rtuwgh prtrtmnrr was "pmveepwd' wnh the diagnosis of aluuumwn poisoning he it neuiologKally ' normal In dnmutiAg the clsim. the jwlge i <ompens4tto attiibirtcil giea* *slue to (>i k|vr" l tetumooy rhs* sltlvHigh prii(iorr may have had elevated aluminum levels m hi* titrate Iheie was no evlera e of aluminum prawning ImpJnH in his futeings is that. the absence of eomprient proof that priMNioe* sufleied from aluminum toanity, hi* psychiatry disabiluy ws not compensable Held: The judge's determmaiioA that petitioner did not fuffet from aluminum insK'ity si a result of hi* employment <t supported by tub suntial credible evidence m the rec ord However, (hat finding is nra dtsposrtive o( peltiioaet's sttesi disorder claim The question <t whether pctumeyt's psychiatry disabduy k a "eompenssbte orcvpational dtseaw*' as defined by N 1 $ A X I5 31 .. all diseases nnsmg out of and m tee course of employ mew. which are due in a material degree to eautet and conditions ... charaetcnstac of or peculiar to a purocwlai ... employment It is now settled teat compensable personal injuries include psychiatric mptnes and hence may be an in dependent competttabic worker*' compensation claim. Sowsderfm v. / Okqsonr Co.. 103 N.I. 403 (1966). Neverteelets. claims of psychiatric ditabduy must be based on demon strable objective medical evidence rather than on purely subjective fK. ion The objectivciwbjcctive distinc tion k not resolved by dcicrminmg whether the petniones suffers physical manifestations of psychiatric dkabdky; tec distinction k betwoen kdependew professional analysk arte the bare sutemew of tee patient. The compensability of a psychiatric injury k also not dependem upon whether tec petitioner has suffered a work-related "physical" accident or trauma Moreover: That tec Stimulus k gradual, an tec form of sustained stress ... or har assment does not ... make nervous injury any tee less compqwabte than if k were caused by sudden shock. 18 Larson. The Low of Fsrlnra'i Compensation, j 42 23(b). Wilhomt v. ttVrteru 7rc. Co., 171 NJ. Super 571. 565 (App. Dm 1961). held teat mental Mncss caused by repctitrvc mental stress may be compensable If there ts objective evi dence "when skewed realistically" (hat tec alleged work caposvre "was so a material degree a contributing factor. " Id. at }60 No com pensability wat found hi WiUiomt be cause tee evidence consisted primarily of peimoner's subjective, neurotic reaction to tec demands of hk job. Goyrfen S*ote /adtisty, 256 N J. Super. 4)6 (Apo Div. mi). afTd ob. 126 N.l. 54 (1992), reaffirmed (he WiHioms "objective tnatenaldegree" standard, but added teat tee objectively strestfwl working condi tions must be "peculiar" so tee par dcular workplace, and there must be objective evidence supporting a med ical opinion of 0k resulting p*vchtatnc dtsabilny The question k m. at the judge VKwed a. whether petitioner aufferad from aluminum poisoning (utrimpowiuit #ui C60776 0002 ,, HKW JHiLSKY LAW JOURNAJ, FEBRUARI * \99 'im rjte A tQ -V tS i , -<.> - L w f IV (radge must ifplji fee "flbfmivr M^tiir tew by | focusing on pcisMMVf'l prnrrprron fell V mAcikI (nm fee disease A remand ( new firefutgs n therefore necessary IV mut ts Vikf tVf it >*)n li< rvwlrnte. (rlliunll)' r>nl. huh MUiiM (WIilHWI I hurilr* of proving that K< mimI divxV( n ' <lur tn a material degree" in the irprniivr wmkplKt rtpotuir ( Continental Can | Hit ivl>ll<Miil ri|lM km. isugrasnc VaUtVi, dir nneti, and iwnfM are tin- duputreJ, at t the history at elevtird aluminum level* fnd m hit bhmd aid Or Bsonsient's advising him that V suffered from aluminum pmtoning Rnh ptyrhiiintlt acknowledged that petitioner had become depressed, conrrmed foe hit well bring and peenrcvpird with ho* he could rid hit body ol what he | deemed to he a putomui wbttiMt Thu*. there n a psychiatric disorder anting front die employee'* perception of a "phyt'cai" stimulus On the other hand, there h "evi dence that after petitionee' left hi* employment the ahtminum level in hi* blond normalirod. NcnoVkii, hi* aieii disorder worsened Continental Can argue* (hat hit belief *< not caused by anything in the 'i- vironment but by bit subfre icrprctattont of die medical a- < received. ^ However, hia subjective re' <t not to be eomplcacly diarr <d. Whether he twnatns hi* bu> . of proof it a fad have, which mutt be revolved after considering the totality of factor*.-including die nature of hi* work. the duration and ettent of hi* dual ripmurr I response to hi* condition, and whether any unrelated cause or event may have triggered hi* diaordcr. AfTirmed in partj revenad in part, and rewtandod for Antherproceeding*. (W W n For petitioner -- George F Mend-, nckj (Robin L fcdtriti on the' brief) For rcyondent -- Mk C. eiitzcr (Kid Wafladi). a- CIVIL PROCEDURE -- OISCOVERY !-- EXPERT WITNESSES 4 SUMMARY JUDGMENT The bolding In Crfcaa (on which' lhe trial court railed) disapproved, cowristent whb Role 1:1-4, attaching an warworn factual assertion by a Ur wltwaa lo brief, but Rule 4: I T-4(e| goverat* npert or Ireallogphysicians' raporu U answer to to* irrrogatortc* and H dots not require then* to be *ubmfttd In the form of afftdavH or testimony; ' plaintiff** eapert't letter report on. ptaintlfTi permanently dbcotarad adult teeth provided a HraotmUMiaf link between defendant-doctor, and bb atWgedly having prescribed Ictracycflnc-bmed mrdkotlon to ptalntMT a* a child, and (at In Shafer) k u error for the judge to rafuor to consider informalIon that would preserve plaintiff's ]cause of ortion. fohmltted after fbmtry had bran completed bsrt white defendant** motion for funwnory Judgment w "i(. as pari f the record for the purport of deciding the tnrttan, and (he grant of b Stato Digests Appellolo OMolon;. Baldyga v. Oldman ol ol. A-ill 91-n. ofwwmn by Wallace. ISC (temporarily 'as ( wMaris futwilil'"'*(emrmi. "hut w*i instead #*pm opinion fvidrnrr wh autird <t n adiriulum iu the iend ' t'gnrdl. drenhd January; 6. , approved for. publicarum January J9,* IWI Before fudge* Mu-hdt'jBawe and Wallace On appral from (he Law OivMwn. HwMctdon Cowry (Sat Discovery matertaltj-includiag ,a 'iw**i . ia_ wurrrogatoort. ,wt nm wittwa-ltuic I M. tt (i mwtr cka* by the commrm futlowing the rule.' whose purpose n wramie few fn- below Judge Bernhard J wuness .resnaumy is based on prrsnaat inowlcdgr In (hit mrdteal malpractice cate. plaintiff THomat Baldyga tfteih' from order*' granting summary judgmcm in favor of defendant F.llion Oldman. M D. and denying hit moim for reconsideration Plaintiff's complaint hod alleged (hat defendant ^ negligently .administered .die''drug ` tetracycline to hint during tbldwod. resulting is' pcswfancnl gaining ' and ' discoloration of hia adult teeth Rule 4 17 4 governs fee. foam, scr K sari mk of answers to a party 'sMucrrogsiory request!. (<) ipreifirally deals wsh capert , treating' piywua t reports, and provides feat an casn copy of an etpcrt't rrpon' must hr smarted to the mtcirogatory These it no raquiremem wndcr -Rule 4 I74(t) feat atS'Ctpert phystruu's report mug be mbttsirstid iajfeeTform of aflidavu or tegimowy/ \ Had Feldman's report been timely In repon*e to defendant's looiwy ' padgment motion. plaintifT attempted t to present hit capers'*, term report , after the time had (spared for . the: - completion of ditoovery. The trial : judge refused to consider the iatc eubmined to defeidam in the ordinary course of fee Migetsoa as a respoate to fee g*wdard-wqucg for; the name* of etpert wunaari and fee substance- of feci* opinion, d wodd'haW pre^ (riy been before fee'court tt 'pan of fee record-far purpose* of dredfog the motion. / The trial judge also' slated-feat lie' I960. For die first three year* of hit life..he wat under fee core of-Or. " Paul Coccia, who b now, deceased. He t under die cars of defendant from August 1963 Mil approximately. 1976 or 1971. Pursuant to an earlier order of fee trial judge plaintifT w*t deemed to { have admnsed dwl he dd M know J what, if arty, antibiotic 'medication;'!, would bet colder fee rjfport^ because it contained hearsay, apparently refer ring so pUauifi*t; alatemeM1 to DtV FeUmaa feat bc had beeu given terra- _ cyriinc' Since ptafoiifT kid edmirted he had. no fint-hand knowledge of this. it. may reasonably ;be attumed feat he was trissutg-an earlier-diag nosis by Steven G.' Fhden.'D.D.S. feat his' Ud 'cthdhted tetracycline . was admintnered to him- by either ; Coccia or defendant, md did not However.'Or. Fridman's report; know whether cither doctor hod ad- . mintitercd tetracycline- or non-J tetracycline bated medication to Mm. { lion, and emnmgion 'bf plaintiff, which serealed' feat piamtifT* teefe. eahibsted "characterirtic binding" The report of Ira Feldman. D.M.D. j associated wife tetracycline. An.-capert m*y kguimately use hearsay v" on which plaintiff unshod to rrfyin sdence to^ confirm an opinion 'reached opposition to defendant'* mnunary, | by mdepchdcsn means. judgment mcrion auaod dtat: "Wife reasonable dental certainly ... Thome i j received fee drag tetracycline between fee ages of 3 and 6.** Plaintiff argued/ feet, since be wo* under defendant's The trial ledge;principally'refased r Ojr. FFrti'dwian't. rep' ort be- casrte It was eijbmimd alVrfee dose of ditoovery and while the motion for care during .feat rime. Fridman's; re aemmary jadgmeae was pending.' ' port defeated defendant's motion'for ' /, jhririi v. Am. Cymuaiiid Ce. ; .23l' * summary judgment. j N J Super f. 16-11 .(App.* Div. ' 1989), a cate very similar to this one.' -The trial judge gated dwt under held fern it * a mistaken eVrei*e of Rule * 46-2 and Rule 1:64. Frid dberetion to eefote so consider sup-" man's repots wot required so"be fa- plemewtaf affidaviu from- -fact .wst-'. cither affidavit or legsmany form, and' hesses mbnuned by plaintiffs' fo op-. ugg*v-d feat fee appropriate vessuc poehicM *o a.tmnmary jadfmeM aw-^ for r? -?.wo* on appeal lo fee Ap-- 1 llo* " thr diretwert ' petiste . Hvision. '`-'am Held, facts founded o be relied upon m response lo a motion.*whirit are not of record and are not jadiri' ^ ally noticeable; ore tombed *a ;be submitted in die form of affidavit or testimony. R. 4:46-2; R. 1:64. ` In this rate, fee bid cowl retted on Crtiaa v. Cm. Aceidtat hr. Gs. 311.; N.l. Super. 331. S44 (App. Div. 1916). which reversed gmitmnry psdgntem fo favor of a defend*to who had attached on foreranct netke^of cancellation lo fee brief 5. without properly tuthewttesting k by affidavit or certification. The issue m Crime w*s an unf'ora factual assertion made-by s lay mness, and feus fee court's holding w** of Rule 1.44. b fen care. Dr. Fridman'* report did not contain by- ftled feeu brief 'fo oppoaition to feie Viewing fee record vife all;factual, inferences fo faur of plaimifT a* fee fepliiiid > fo 0*. . Fridman's' report would have'preserved'plamrifTe cause, 'of action, 'll ptuemad evidence feat Thus.-'' fee report provide* a cb* cumuannat hak b and fee aAegud .fof A* gated fo Strict eitabrifeed by fee mi Id g | - *' ** a . Under these <H(MHu,,n fudge should have granted a ***** hh pnwponcriirm to recce* p-'fl report of Dr, Feldman and an* J!r certification by drlrndam ' fee rr(UHt.wat riros - ' h Thr^lrtri fudge did n re*, m ptainiiffs tequett So shift fee Vj,/* nl-proof so dcfcndantlo shW fe^jj* d*d nos .prrtcrthc witaryclu^ plaintifT during 'his chihtt^^ .fore, no dccitmn oh this T 'trached here. -At.srial. ^1 : should dcicsmmc (hr pfopei chargTm fee jury. wh.ch may or fo,y ^ saefode m smtrtictson sfofia^ trodhsonal burden of proof.- - Reversed and rrmandrel' - tymt, ra i ' For appelUnt . - Philip Tonrre*,* .(Garvuto.^Galet A Cantor; RsdMd 1 Gales on fee brief). For itspmlcu -- , Pescr J. McDonald (Rones. MeOon. aid A Manley; Robert-1. Kovmt an : fee brieO- " : ^CORPORATIONS - FRAUD. j_ 3*T*ertvdefendanito (rsadrmf fo Ktsbati of lire corporation iflcea judgment wus ubTalned egahut nd defendnnta derided,1# eenee fo htg burlnear ire a corporation hoi* did nut file o certHVate of flriule H. defendant* ora, personalty for eblc for (he M emouM of fog* a Irtndcrrid carii hoard on ritkicrJl `"fraudofonl convey msec or yimlm (he corporate faff; their wufoj raeponstbRNy fo meuorad hy (he valsre of (he ' transferred torb, which mny Inchrde pbrtdransfcr. racriyad from (Ire acceuela. * AppoOale DlvUlon; AYR ConspoaHfott," Inc'' *, Rtitttbtrg ot 1. A-I7474ITI; per corfom opfo-" son; decided Jonwuy t. 1993;'ap proved for publication January 29. ' -1993. . Before . Judges. Oreser ` and Skilknan. .On appeal, from fee Law' Division^ Union CeuMy. (Sat below: lodge Mem*.| . %r . . ] In 1989. pfosmiff AYR Compin'-. ' tion.. Inc. filed a oemplatni againg . ' Roscnberg/Marguecio. Inc. (R/M) far 'collection of mm fere and *wiq to . AYR.. Plaintiff .recovered final judg ement by defauh on January 24, 1990 , fo fee amoure of SdOjOO.TQ plus fcocu of $129.90. Fog-judgment cse- ' ration M i balance -doc `of over ^ $70,000 on fee-judgment; inriuduq pen-ptdgmcre fotcrc. " On July 23. 1990. plaimiff fo- fori fee current action agairM Roseufocrg, Marguctie and Cherra- son. Carsoll A Hdttf. a corporation, alleging violation of fee Uniform Fraodulenr Transfer, Are, NJ.SA. 23:2-20 (t teg. PUmtifT also ririmaf .fee right to pierce fee corporate`ved and afoain judgment* againg defen- danr* Rosenberg astd Margucrio for : (ha amoure of fee Judgment obtained '-againg R/M. - ' CVreason war dismissed wife 'prjaks. Thc jwwfi. gtmrfud AY*`t . motion for gusunary judgment ageing Rosrnberg.end Msrg* ^io. but limned pUintilT* damagri to fee amoure of cowrasuaoonra*>o~