FALL 2023 LEGISLATIVE REPORT

By: Carmela L. Novi, Esq.

For your information, helpful websites:

www.njleg.state.nj.us/ the New Jersey Legislature’s site; enables you to find bills by subject and track where any proposed bill is in the process.
www.judiciary.state.nj.us/ the New Jersey judiciary site; includes a legislative news site that lists new laws by subject (e.g., family, criminal), bills on the Governor’s desk and legislative updates. There is also a report opinions site where recent New Jersey Supreme Court and Appellate division opinions are posted.
www.ca3.uscourts.gov. The United States Court of Appeals (Third Circuit) discontinued issuing printed Slip Opinions. They are now available free of charge through the Court’s website as noted.

Sampling of New Jersey State Legislature Bills Passed after June 1, 2023

Property Taxes – Senior Citizens

A1/S1 (P.L. 2023 c. 75) (June 30, 2023) The “Stay NJ Act” providing a property tax credit of up to one-half of property taxes due for primary residences of senior citizens in the State, expanding eligibility for the homestead property tax reimbursement program, establishing a senior property tax relief task force.

Pharmaceutical pricing/transparency

A5410/S4132 (P.L. 2023 c.107) (June 30, 2023) Establishes new transparency standards for pharmacy benefits manager business practices. Requires PBMs to disclose their negotiated reimbursement rates for pharmaceuticals sold by their pharmacy networks alongside the fees they charge individual pharmacies.

Students, Suicide prevention

S503/A2293 (Amends P.L. 2016 c.18)(June 30, 2023) Requires institutions of higher education to implement suicide prevention programs and raise awareness of mental health services.

State Juice

A2271/S3442 (P.L. 2023 c. 134) (August 7, 2023) Designates cranberry Juice as the State juice of the State of New Jersey.

Sampling of Reported Decisions

Family Law – Cohabitation

Cardali v. Cardali NJ Supreme Court August 8, 2023 (A25-22) (087340)
Facts: Parties divorced in 2006 with an Agreement that included a provision that, upon Wife’s cohabitation (as defined by NJ law), alimony would terminate. Husband filed application to terminate his alimony obligation to Wife, the same which was dismissed by the trial level, with the Court finding that the Husband had not made a prima facie showing of cohabitation. The Appellate Division upheld the trial level’s decision. The evidence presented by the movant at the trial level included a private investigator’s report that showed the supported former spouse’s paramour present at her home on all 44 nights of a 44-night surveillance spread out over a five-month period (May – September of 2019) and that they had been together one-half of all overnights in October of 2020. The supported spouse and her paramour had been in a relationship for 8 years. The private investigator also noted that the paramour had access to the supported spouse’s home when she was not at home.
Held: In its opinion, the Cardali Court noted that in cases governed by N.J.S.A. 2A:34-23(n), a movant need not present evidence on all of the cohabitation factors in order to make a prima facie showing; and that intertwined finances (one of the statutory factors that a Court must consider in analyzing whether cohabitation has been shown) is not required to be shown in order to make a prima facie showing. Reversed and remanded for further proceedings.

Criminal Law

State v. Perry Appellate Division: July 28, 2023 (A-0919-20) (Not approved for publication; consult the Court Rules with regard to citing non-approved opinions)
Facts: Defendant was charged with two counts of second degree sexual assault and one count of third degree endangering the welfare of a minor. Defendant was accused of touching his fiancé’s niece while she slept at his house. In pre-trial proceedings, trial court denied motion to introduce evidence that the child had been sexually abused by her father. At trial a detective testified that his interpretation of a recorded conversation in which defendant was a participant illustrated defendant guilty.
Held: Where the sole evidence of defendant’s guilt was the victim’s testimony, and where during summation the State highlighted defendants’ purported confession as interpreted by the detective, defendant was prejudiced and deprived of a fair trial, requiring reversal of the conviction. Court also reversed based upon trial court’s denial of defendant’s pre-trial motion to introduce evidence of the victim’s prior sexual abuse by father.

Products Liability

Hrymoc v. Ethicon Inc. New Jersey Supreme Court; July 25, 2023 (A-21/23-21) (085547)
Facts: This matter involves consolidated appeals. Plaintiff Mary McGinnis was treated by a North Carolina surgeon who implanted two of Defendant Bard’s pelvic mesh devices. In the months following surgery, McGinnis had to undergo numerous invasive surgeries to remove the mesh and repair internal damage, with limited success. Plaintiffs sued in Atlantic County asserting products liability claims against defendant Bard under North Carolina law. Counsel agreed that the substantive issues would be tried under the law of North Carolina but that the issue of damages would be tried under New Jersey law. Plaintiffs moved in limine to bar defendant from presenting any evidence of the devices’ 510(k) clearance to the jury. Bard was able to sell the devices in question under “510(k)” clearance meaning that, for reasons which involve FDA requirements and waivers to conduct clinical trials prior to taking the devices to market. At trial, plaintiffs’ counsel repeatedly referred to Bard’s failure to conduct clinical trials and studies prior to marketing the devices as demonstrative of its unreasonableness. Defendant contended on appeal that it was unfair for the trial court not to allow Bard to explain in response that it received 510(k) clearance to market the devices without clinical studies or trials; and that in making Bard’s failure to conduct clinical trials or studies of its devices a central theme of their case, Plaintiffs “opened the door” to the admission of 510(k) evidence.
Held: 510(k) evidence is generally inadmissible because the 510(k)clearance process solely determines substantial equivalency, and not safety and efficacy. However, in a products liability claim premised not only on principles of negligence, but particularly on the reasonableness of a manufacturer’s conduct in not performing clinical trials or studies, evidence of 510(k) clearance has significant probative value under N.J.R.E. 401 that is not substantially outweighed by the risk of prejudice and potential juror confusion under N.J.R.E. 403. Therefore, under the specific facts and circumstances of this case, the Court affirmed the judgment of the Appellate Division.

Constitutional Law

State v. Wade Appellate Division; August 10, 2023 (A2377-22, A2378-22)
Facts: The defendants were pulled over on a public road and found to be in possession of loaded handguns without handgun permits and were charged with unlawful possession of a handgun. Defendants moved the trial Court to dismiss the charges based upon the U.S. Supreme Court’s ruling in New York State Rifle & Pistol Association v Bruen, 142 S.Ct. 2111, arguing that the gun permit statute in effect at the time of their arrest was unconstitutional. The trial court agreed with the Defendants and granted their motion to dismiss the charges. The state appealed the dismissal of the charges.
Holding: The Defendant’s lacked standing to challenge the constitutionality of the law governing possession of handguns, as neither defendant had applied for a permit and therefore there was no record for the Court to examine as to the basis for a denial. The Court also held that the gun permit statute is facially constitutional. The Court noted that the gun permit statute had been amended in the wake of the Bruen ruling