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We are pleased to present to you the list of top 20 plaintiff's verdicts obtained in the State of New Jersey in the year 2014. The list is comprised of various case types that were tried either in state or federal courts.
Case: Mylan Inc. v. SmithKline Beecham Corp.
Case: Avaya Inc. v. Telecom Labs Inc.
Attorneys: Michael Brusca of Stark & Stark, P.C.
Attorneys: Patrick D'Arcy of D'Arcy Johnson Day, P.C.
Case: Tufaro v. Schindler Management Ltd.
Attorneys: Arther Lynch of Lynch Lynch Held Rosenberg, P.C.
Attorneys: Roy Goldberg of Kim & Bae, P.C.
Case: Nationwide Management Service LLC v. MP Fashion Inc.
Case: Diaz v. North East Linen Supply Co.
Attorneys: James Dezao of Law Offices of James C. DeZao, P.A.
Case: Kwityn v. Port Authority Trans-Hudson Corp.
Attorneys: Carin O'Donnell of Stark & Stark, P.C.
Case: Estate of Master v. Tar Heel Enterprises Inc.

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In a 3-2 decision in Lombardo v. Park Tower Mgt. Ltd., a majority in the First Department awarded summary judgment to the defendant dismissing plaintiff's Labor Law 240(1) cause of action. The Court held that the collapse of the middle step of a three step staircase was not a Labor Law violation. The Court found that the staircase was neither a safety device nor a temporary stairway that was intended to protect a worker from an elevation-related risk within the meaning of the Labor Law. Moreover, being only 18 inches above the floor, the modest height differential of the middle step did not expose the plaintiff to an elevation-related risk.
In dissent, Justice Moskowitz noted that the permanency and height of the staircase were irrelevant to the determination. Instead, the only relevant inquiry was whether plaintiff's injury flowed directly from the application of gravity. Citing Runner v. NYSE (13 N.Y.3d 599 ), Justice Moskowitz found that, since it was undisputed that plaintiff's injury was caused by the application of gravity on his body while he stepped on the weakened stair, summary judgment should have been awarded to plaintiff.
In Arrieta v. Shams Waterproofing, Inc., plaintiffs appealed from a jury verdict that awarded them damages for future pain and suffering, but no damages for past pain and suffering. Counsel for plaintiffs properly preserved his objection by raising the issue of inconsistency in the jury's verdict prior to the jury's discharge. In his concurring opinion, Justice McGuire observed that plaintiffs were not required by law to again raise in their post-trial motion the issue of inconsistency. Justice McGuire further observed that the timeliness of a post-trial motion is irrelevant with respect to an appeal from a judgment, but timeliness is relevant and outcome determinative with respect to an appeal from an Order denying the motion.
In April we reported on Salazar v. Novalex Contr. Corp., a Labor Law 240(1) and 241(6) action for injuries sustained when the plaintiff stepped backward into a four foot deep trench in a basement. The First Department reversed the trial court's grant of summary judgment to the defendants and reinstated claims under both statutes, with Judge Friedman dissenting. The First Department has now granted leave to appeal to the Court of Appeals.
With respect to Labor Law 240(1), the majority followed its prior decision in Carpio and concluded that the accident was gravity related because it was created by "the 'difference between the elevation level of the required work' . . . and 'a lower level.' " The Court then distinguished its holdings in Romeo and Geonie, as well as the Court of Appeals holding in Rocovich v. Consildated Edison Co. (78 N.Y.2d 509 ) stating that in "each of these cases the dimensions of the opening in the floor were not sufficiently significant that the worker could be said to have been working at an elevation." In each of those cases the depth did not exceed two feet.
The majority further held that the plaintiff's claim fell within the meaning of "hazardous opening" within 12 NYCRR 23-1.7 and that there was no proof that the trench had to remain open in order to do the work.
The dissent argued that the majority's holding was inconsistent with prior decisions within the Department, the other three Appellate Divisions and the Court of Appeals holdings in Rocovich and Toefer (finding no liability under Labor Law 240 where a worker fell four to five feet from the trailer of a flatbed truck). The dissent called for Carpio to be overturned arguing that the defendants did not violate Labor Law 240(1) because none of the safety devices contemplated by the statute could have prevented the accident. Furthermore, the dissent argued that there should be no liability under Labor Law Sec. 240(1) and 241(6) where the injury producing activity was an integral part of the work. In that regard, the dissent sharply disagreed with the majority's characterization of the work being performed and whether the trench could have been covered.
Consistent with the mid-year analysis for the Court of Appeals we provided in July, the New York Law Journal reported earlier this week that when the Court is split "Judge Lippman is most apt to join Judges Ciparick and Jones." The Law Journal then went on to explore whether this alignment reflects an ideological bent based on political philosophy, noting that Judges Lippman, Ciparick and Jones were each appointed by Democratic governors, while Justices Read, Graffeo, Smith and Pigott were appointed by Republican governors. The Law Journal did not reach any conclusions, but did offer that Professor Stewart Sterk from Cordozo School of Law stated that "no Court of Appeals' judge has shown a slavish adherence to a political philosophy that can be counted on to produce predictable results."
In January we will have our end of the year review and we'll see if the trend has held. The Court of Appeals also provides their yearly report with all of their statistics sometime in March or April. Here is their 2009 report.
1. If a party consents to the submission of the matter to the alternate jurors as well as the regular jurors, she fails to preserve her argument that the court committed reversible error by submitting the case to a jury of eight persons rather than six.
2. Timely objection must also be made under CPLR 4113(a), that 5/6ths of the jurors constituting the jury must agree (here, the vote was 6-2), or such objection will again be deemed unpreserved.
3. Since all eight jurors deliberated from start to finish, their deliberations would not be invalidated, as in a situation where alternates are substituted for regular jurors after deliberations have begun (see Gallegos v. Elite Model Mgt. Corp., 28 AD3d 50 ).
Arrington v. Bronx Jean Co., Inc., reminds insurance defense practitioners that a carrier's delay in assigning defense counsel may constitute a reasonable excuse for the defendant's default in appearing.
In Melendez v. City of New York, the plaintiff was injured when she fell into a waterfall in Bronx River Park. The waterfall was considered a "natural feature of the landscape." The plaintiff fell when she slipped on wet rocks on the edge of the waterfall. The First Department found that both the waterfall and the wet rocks were open and obvious and the hazard of kneeling near the waterfall should have been anticipated by the plaintiff.
In affirming the granting of defendant's motion to set aside the jury's verdict on liability, the First Department distinguished this case from its prior holding in Westbrook v. WR Activities-Cabrera Mkts. (5 AD3d 69 ). In Westbrook, the Court had joined with the other Departments in dispensing with the "open and obvious" doctrine as a defense to readily observable conditions such as a carboard box left in a supermarket aisle. Here, however, since the alleged condition was a "natural geographic phenomena," the Court indicated that it was again joining with the other Departments that, post-Westbrook, have held that the open and obvious doctrine is available for such natural conditions as a whirlpool, a ten-foot cliff and a ravine.
In Storper v. Kobe Club, the plaintiff tripped on a broken portion of sidewalk adjacent to a vault cover owned by the MTA. By Rule (Rules of City of New York DOT) the MTA was solely responsible for maintaining the vault and the sidewalk area extending 12 inches outward surrounding the vault. Pursuant to the Administrative Code, however, property owners abutting a sidewalk are responsible for maintenance and repair of that sidewalk. The First Department declined to find that the MTA and the landowner could be concurrently liable, holding that nothing in the Administrative Code could be read to supplant the statutory obligation of the MTA. "In reaching this result, [the Court was] guided by the principle that legislative enactments in derogation of common law, and especially those creating liabilty where none previously existed, must be strictly construed".
In Abetta Boiler & Welding Service, Inc. v. American International Specialty Lines Insurance Company, et al, the First Department dismissed a Wholesale Insurance Broker from the action on the basis that it did not owe a duty to the insured to timely notify the insured's excess carrier of a wrongful death claim. The Retail Broker had forwarded notice of claim and all of the information in its possession to the Wholesale Broker, but the Retail Broker failed to follow up with either the Wholesaler or the excess carrier to ascertain whether notice was received. Since the Retail Broker was the only party who owed a duty to the insured, the Wholesaler could not be held liable for failing to forward the notice of claim to the carrier.
The First Department further held that a question of fact existed as to whether the Retail Broker owed a duty to the insured to monitor pending claims to ascertain whether they had given rise to lawsuits against the insured. The excess carrier required both timely notice of claim and timely notice of the action. Since the Retail Broker did not receive notice of the wrongful death action, an issue of fact existed as to whether the Retail Broker should have followed up with the insured to determine if such an action had been commenced.
In Klee v. Americas Best Bottling Co., Inc., the parties agreed to settle the matter for $400,000. Along with a release, stipulation of discontinuance and a tax ID number, the defendants' attorney requested that the plaintiff's attorney provide an IRS Form W-9. The plaintiff's attorney refused. After the defendants failed to pay the $400,000 settlement within 21 days of the tender of the release and stipulation of discontinuance, the plaintiff entered judgment for the settlement amount, plus interest, costs and disbursements, pursuant to CPLR 5003-a. The defendants then moved to vacate the judgment arguing that the W-9 was a condition precedent to payment of the settlement.
While the motion was pending, plaintiff's attorney provided the defendants with the W-9 and the defendants paid the amount of settlement, but not interest, costs and disbursements. The trial court, relying on the First Department's decision in Cely v. O'Brien & Kreitzberg (45 A.D.3d 368 [1st Dept. 2007]), vacated the judgment finding that plaintiff's attorney was required to provide the W-9 as a condition precedent to payment of the settlement proceeds. The Second Department, however, reversed disagreeing with the First Department's decision in Cely.
The Second Department held that neither CPLR 5003-a nor the parties' settlement required the completion of a W-9. Furthermore, the Court held that the defendants made no showing that the portion of the personal injury settlement which the plaintiff's attorney may be entitled to retain as a legal fee is actually "reportable payment" subject to the reporting requirements of the IRS. The Court also held that, even assuming an insurance carrier is mandated to report payment of the settlement proceeds, the defendants did not show that a W-9 was the sole means by which a carrier could comply with that obligation.
In contrast in Cely, the First Department held, "Although neither the open court settlement agreement nor CPLR 5003-a requires the submission of those documents as a condition of payment of the settlement amount, defendant's request for them is supported by statute and case law (see Internal Revenue Code [26 USC] § 3406 [a]  [A] [corporation required to deduct and withhold tax if payee failed to furnish name, address and taxpayer identification number, information requested on W-9 Form]; In re Emergency Beacon Corp., 52 BR 828, 830 n 3 [SD NY 1985]; see also Liss v Brigham Park Coop. Apts. Sec. No. 3, 264 AD2d 717  [general release and stipulation of settlement defective in not providing for release of plaintiff's Medicare lien])."
In Duquette v. Oliva, the Appellate Division, Third Department reversed an Order of the Supreme Court, Clinton County, which denied the plaintiffs' motion for leave to amend their complaint. The plaintiff's sought to add a breach of contract claim to their medical malpractice action based upon the defendant's alleged "express special promise" to achieve a definite result in connection with a breast augmentation procedure. The Appellate Division concluded that the evidence showed some merit in the breach of contract cause of action to the extent that the defendant plastic surgeon "made express promises to insert smooth implants [as opposed to textured] and to increase her breasts to a specified size, but did not accomplish those results." Justices Spain and Cardona dissented, concluding that "the record is devoid of any evidence that any precise result was guaranteed that would convert this seemingly viable medical malpractice claim into a cause of action for breach of contract."
When Can A Construction Manager Actually Be A General Contractor?
In Salsinha v. Malcolm Pirnie, Inc., the First Department found that a question of fact existed as to whether a construction manager could be held liable to the plaintiffs under Labor Law sect. 241(6) based upon its contractual responsibility to choose subcontractors and testimony that it was "in charge of construction", i.e., the functions normally performed by a general contractor. The Court affirmed the dismissal of plaintiff's sect. 200 claim, however, on the basis that none of the defendant's exercised control over plaintiff's work methods.
The holding that Pirnie lacked control over the work suggests that Pirnie's potential liability under the Labor Law was not based upon Pirnie being a statutory agent of the owner - a finding that turns on whether control could have been exercised over the work. The Court of Appeals had held as much in Walls v. Turner Constr. Co. (4 N.Y.3d 861 ). In Walls, the High Court found that the construction manager was a statutory agent of the owner in part on the basis that the construction manager had the authority to control the work and stop any unsafe work practices.
Thus, the First Department's holding in Salsinha may suggest that, if Pirnie were not an agent because it could not control the work, then, despite Pirnie's "construction manager" title, Pirnie could be held liable under the Labor Law as the "general contractor" for the project.
Therefore, Salsinha raises the question: What facts are necessary to establish that the construction manager for a particular project was actually the general contractor?
We will simply have to follow the case for the jury's answer.
In Altamirano v. Door Automation Corp., a security guard at Lincoln Center was injured when a metal arm from a large motorized door broke free and struck him in the head. It was alleged that Door Automation Corp., who had repaired the door eleven times in the year preceding the accident, had improperly repaired the metal arm. On a prior appeal, the First Department had found that a question of fact existed as to whether DAC's repairs brought DAC within the exception to the rule precluding contractual third-party tort liability (48 A.D.3d 308 ).
At trial, plaintiff's counsel sought to use the First Department's holding to formulate the jury charge. The trial court rejected counsel's proposed charge. On appeal from a jury verdict in favor of the defendant, a majority of the First Department reversed, finding that the charge chosen by the trial court did not "concisely explain, in fact-specific terms, what the jury needed to find in order to determine DAC's liability... Instead, it was both misleading and confusing..."
Writing for the dissent, Justice Nardelli, joined by Justice Abdus-Salaam, observed that counsel's proposed charge "erroneously" relied on the Court's dicta from its earlier decision and that counsel had "misinterpret[ed] the import of th[at] decision." Justice Nardelli wrote "[a]ny... observations made in [this Court's earlier] decision were, at best, explanations in support of its holding that issues of fact were presented, or, at worse, dicta..." The Judge instead found that the trial court's charge accurately tracked the law, and that nothing in the charge was incorrect or confusing. Therefore, "since the charge was clear and accurate as given" Justices Nardelli and Abdus-Salaam would have affirmed.
Strangio v. Sevenson Environmental Services, Inc.: in this Labor Law § 240(1), the issue is whether plaintiff's injuries were directly caused by the application of the force of gravity when plaintiff was struck in the face by the handle of a hand-operated hoisting mechanism while raising a scaffold that descended unexpectedly. The Supreme Court granted the motions of third-party plaintiffs and third-party defendant for summary judgment dismissing the Labor Law § 240(1) claim. The Appellate Division, Fourth Department affirmed, with two justices dissenting relying on the Court of Appeals recent decision in Runner v. New York Stock Exch. Inc., 13 N.Y.3d 599 (2010).
Doherty v. Merchants Mutual Ins. Co.: in this action against an insurer, the insured alleged that the insurer acted in bad faith by failing to settle an underlying personal injury action within the policy limits, thereby exposing the insured to personal liability. The Supreme Court granted the insurer’s motion for summary judgment and the Fourth Department affirmed. Two justices dissented finding that there was a question of fact as to whether the insurer’s investigation into the claim and the value of the claim was reasonable. (UPDATE: motion to dismiss the appeal was denied).
Butler v. Stagecoach Group, PLC: in these consolidated actions, the plaintiffs are seeking damages for injuries or wrongful death resulting from the collision of a tractor-trailer parked on the shoulder of highway in New York and a chartered bus transporting a women's hockey team from Ontario, Canada. At issue is (1) whether the courts below erred in determining that the law of Ontario, Canada applied as to noneconomic damages and (2) whether the Appellate Division erred in concluding that the Supreme Court did not abuse its discretion by taking judicial notice of Ontario law regarding noneconomic damages, despite defendants' failure to raise the applicability of such law as an affirmative defense and to provide the substance of the law in their pleadings pursuant to CPLR 3016(e). The Fourth Department held that this case fell within the exception to the general rule that the law of the forum where the tort occurred should apply, because under the circumstances, “displacing the normally applicable rule will advance the relevant substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants.” The Court also held that because CPLR 4511(b) permits a court to take judicial notice of laws of foreign countries that are presented prior to the presentation of evidence at trial, the court is not barred from considering them based on the requirement in CPLR 3016 that such laws be set out in the pleadings.


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UNITED VACCINES DIVISION OF HARLAN SPRAGUE DAWLEY, INC., Defendant.
United States District Court, W.D. Michigan, N.D.
*1239 Joseph C. Sartorelli, Petrucelli & Petrucelli, Iron River, MI, for plaintiff.
Ronald D. Keefe, Kendricks, Bordeau, Adamini, Keefe, Smith & Girard, Marquette, MI, Deborah S. Burke, Thomas A. Withrow, Henderson, Daily, Withrow & DeVoe, Indianapolis, IN, for defendants.
This is a diversity action between an Indiana corporation and a Michigan resident. This action arises out of plaintiff's loss of 1,970 breed stock mink after the mink were injected with BIOCOM-DP vaccine on July 2 and 3, 1990. The vaccine is intended to prevent distemper, virus enteritis, botulism, and pseudomonas pneumonia in mink. The defendant manufactures, tests, and distributes the vaccine.
Plaintiff states three claims against defendant. Count One is a negligence claim. Plaintiff claims that defendant was negligent in failing to use reasonable care to discover that the vaccine was harmful to the mink and failing to take reasonable precautions to warn the plaintiff that the vaccine was harmful. Count Two is a breach of warranty claim. Plaintiff claims that the vaccine was not reasonably fit for the general purpose for which it was sold; and therefore, defendant breached an express warranty as well as an implied warranty of fitness and merchantability. Count Three is a fraud claim. Plaintiff claims that defendant misrepresented the safety of the vaccine to the plaintiff and omitted to warn the plaintiff of the harmful effects of the vaccine. Plaintiff seeks damages for the loss of the 1,970 mink, the cost of the veterinary treatment and medication, and lost profits. In addition, Count Three seeks compensation for emotional distress and punitive damages.
Defendant filed a Motion to Dismiss Counts One and Three for failure to state a claim. Defendant states that plaintiff's complaint arises out of a commercial contract for the purchase of the vaccine and that the Economic Loss Doctrine prevents the plaintiff *1240 from bringing tort claims, such as Count One and Count Three, arising under a commercial contract where the plaintiff suffers only economic loss. Defendant claims it had no duty to the plaintiff outside the contract; and therefore, the plaintiff may not make tort claims against the defendant.
Plaintiff responded to the Motion to Dismiss by stating the damages he seeks are not limited to economic losses and that the damage is to property other than the product sold and not within the contemplation of the parties when they contracted. Plaintiff's response also raised the additional allegation that the defendant's representative falsely represented that the Upper Peninsula Fur Breeders Association and Dr. Boydoon trusted defendant's vaccine and purchased it for their herds. Plaintiff did not allege this in the Complaint.
An action may be dismissed if the complaint fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b) (6). The moving party has the burden of proving that no claim exists. All factual allegations in the complaint must be presumed to be true, and reasonable inferences must be made in favor of the non-moving party. Miree v. DeKalb County, 433 U.S. 25, 97 S. Ct. 2490, 53 L. Ed. 2d 557 (1977); 2A James W. Moore, Moore's Federal Practice, ¶ 12.07[2.5] (2d ed.1991). Dismissal is proper only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). Dismissal is also proper if the complaint fails to allege an element necessary for relief or "if an affirmative defense or other bar to relief is apparent from the face of the complaint...." 2A James W. Moore, Moore's Federal Practice, ¶ 12.07[2.5] (2d ed.1991).
The Economic Loss Doctrine "bars tort recovery and limits remedies to those available under the Uniform Commercial Code where a claim for damages arises out of the commercial sale of goods and losses incurred are purely economic." Neibarger v. Universal Cooperative, Inc., 439 Mich. 512, 515, 486 N.W.2d 612, 613 (1992). The purpose of the Uniform Commercial Code is to simplify the law governing commercial transactions and to standardize the laws governing commercial transactions in all states. The Doctrine distinguishes between cases involving the sale of goods for commercial purposes where the parties' economic expectations are protected by commercial and contract law and the sale of defective products to individual consumers who are injured in a manner which has traditionally been remedied by tort law. Id. at 519-23, 486 N.W.2d at 614-16.
Contract and tort law have different purposes. Contract law protects the interests for which the parties bargained or could have bargained. Tort law protects society's interest in protecting people from harm. Specifically, product liability law encourages the production of safer products. Product liability law allocates the risks of unsafe products on the manufacturer rather than the consumer. "Where all parties involved ... are commercial businesses, this rationale disappears." Id. at 526, 486 N.W.2d at 617 (quoting Consumer Power Co. v. Mississippi Valley Structural Steel Co., 636 F. Supp. 1100, 1105 (E.D.Mich.1986)) (emphasis in original).
The Michigan Supreme Court cited Miller v. United States Steel Corp., 902 F.2d 573 (7th Cir. 1990) for a discussion of economic loss. In Miller, the Seventh Circuit stated that economic loss was a misnomer and should more appropriately be called commercial loss. Commercial loss is distinguished from injury to the plaintiff personally or injury to property other than the product. The Seventh Circuit noted that personal injuries and property injuries are economic losses in the sense that they can be compensated by money. The Seventh Circuit noted that contract law was better suited to deal with purely commercial loss. On the other hand, product liability law is a special branch of tort law designed to cover cases in which personal injury occurs to a consumer or bystander. Id. at 574.
Damage to property, where it is the result of a commercial transaction otherwise within the ambit of the UCC, should not preclude application of the economic loss doctrine where such property damage necessarily results from the delivery of a product of poor quality.
439 Mich. at 531, 486 N.W.2d at 620.
Judge Bell of this Court refused to allow tort claims of fraud, misrepresentation, and negligence in an action which was in essence a contractual dispute. Merchants Publishing Co. v. Maruka Machinery Corp., 800 F. Supp. 1490 (W.D.Mich.1992). In Merchants Publishing, Judge Bell noted that an action in tort under Michigan law "requires a breach of duty separate and distinct from a breach of contract; that `an action in tort will not arise for a breach of contract unless the action in tort would arise independent of the existence of the contract.'" Id. at 1493 (quoting Brock v. Consolidated Biomedical Labs., 817 F.2d 24, 25 (6th Cir.1987)).
On the other hand, Judge McKeague of this Court found a situation in which the Economic Loss Doctrine did not apply. Citizens Insurance Co. v. Proctor & Schwartz, 802 F. Supp. 133 (W.D.Mich.1992). Citizens Insurance held that fire damage that occurred when a roaster caught fire could be remedied in tort (except for the damage to the roaster itself). Citizens Insurance noted the difference between "disappointment" and "disaster." Disappointment occurs when the economic loss is a "natural, foreseeable result of the product's defect...." Id. at 140.
In the instant case, the Economic Loss Doctrine prohibits plaintiff from maintaining his tort claims because the dispute here is in essence a contractual dispute in which the damage arose out of the commercial sale of goods. The plaintiff and defendant both operate businesses. They entered into an agreement by which plaintiff would purchase the vaccine from the defendant to use on plaintiff's breed stock mink. The mink were used by plaintiff to produce income as is illustrated in his complaint, which alleges lost profits. Moreover, plaintiff had purchased similar vaccines from other vendors. Plaintiff's status in the contractual setting with defendant was that of a businessman and not an ordinary consumer. Unfortunately, the plaintiff allegedly did not get what he bargained for, and the vaccine which plaintiff purchased was allegedly harmful to his mink resulting in the loss of the mink. This loss is an economic loss to his business and may be compensated only by traditional contract remedies.
Plaintiff's claims of negligence and fraud as found in the complaint are not tort claims which arise independent of the contract; therefore, defendant owed no duty to the plaintiff "separate and distinct" from the duty and under the contract. Merchants Publishing Co. v. Maruka Machinery Corp., 800 F. Supp. 1490 (W.D.Mich.1992). Instead, the claims arise because the plaintiff contracted to purchase the vaccine and are intertwined with the product's performance. Plaintiff's negligence claim states that defendant failed to discover that the vaccine was dangerous and failed to warn the plaintiff. Similarly, plaintiff's fraud claim states that defendant misrepresented the product as safe. These claims arise only because the product did not work as it was supposed to work. To allow these tort claims would swallow the Economic Loss Doctrine because these torts could be claimed anytime that a product did not work as it was supposed to work. The result would strip the Doctrine and the Uniform Commercial Code of its purpose to simplify the laws governing commercial contracts and to lend predictability to contracting parties. This Court believes that the only remedy for claims relating to the performance of the product, such as a claim that the product did not work as it was *1242 supposed to work, may be brought under contract law.
The Economic Loss Doctrine applies even though the damage claimed by the plaintiff occurred to property other than the product itself. The Michigan Supreme Court dealt with this issue specifically in Neibarger and stated that the Doctrine applies to damage to property other than the product if the damage "necessarily results from the delivery of a product of poor quality." The harmful effect to animals injected with a vaccine is without a doubt a necessary result which would occur from the delivery of a defective vaccine. The vaccine is intended to be injected into the animals, and one of the inherent risks of the use of vaccines is that the vaccine will cause an adverse reaction resulting in harm. This link between the product and the harm caused does not require one to stretch one's imagination to reach some tangential nexus it is the exact damage one would expect from a defective vaccine. Allocation of this damage clearly could have been negotiated by the parties. That is, the death of the mink was a "natural, foreseeable result of the product's defect." Citizens Insurance Co. v. Proctor & Schwartz, 802 F. Supp. 133 (W.D.Mich.1992).
The loss of the mink resulting from a vaccine is analogous to the loss of the cows resulting from the milking machine which occurred in Neibarger. The only difference the Court sees between the instant case and Neibarger is that the plaintiff in Neibarger seemed to have actually contemplated that some cows may be lost. No actual contemplation appears to have occurred in the instant case, yet such contemplation would have been reasonable.
Plaintiff cannot shield his claims from the Economic Loss Doctrine by seeking compensation for emotional distress and punitive damages. Although the Economic Loss Doctrine by definition applies only to economic loss, the Michigan Supreme Court noted that the term economic loss is a misnomer and that the term commercial loss is more appropriate. Neibarger v. Universal Cooperative, Inc., 439 Mich. 512, 486 N.W.2d 612 (1992) (citing Miller v. United States Steel Corp., 902 F.2d 573 (7th Cir.1990)). Miller held that commercial loss is actionable under commercial and contract law and other losses are actionable under product liability law. Miller stated that product liability law was designed to cover personal injury to a consumer or bystander. Plaintiff is a businessman and not a consumer or bystander; and therefore, plaintiff cannot claim a product liability loss. Allowing plaintiff to defeat the Economic Loss Doctrine by seeking compensation for emotional distress and punitive damages would also swallow the Doctrine. Any party to a commercial contract wishing to assert tort claims would only need to seek damages which are not traditionally economic losses.
For the reasons stated, defendant's Motion to Dismiss Counts One and Three is GRANTED. A separate Order will be executed with this Opinion.
 The Court would have been presented with a much more difficult question had the plaintiff claimed fraud in the inducement. This Court does not need to address whether Neibarger would prohibit a claim of fraud in the inducement because the question has not been presented. However, the Court is aware of a pre-Neibarger case decided by the Eastern District of Michigan which refused to dismiss fraudulent representations based on the Economic Loss Doctrine. Electro-Matic Products, Inc. v. Prime Computers, Inc., 884 F.2d 579 (6th Cir.1989) (table opinion). This claim appears to be one of fraud in the inducement. Florida's Economic Loss Doctrine clearly does not cover fraud in the inducement. Williams Electric Co. v. Honeywell, Inc., 772 F. Supp. 1225 (N.D.Fla.1991).

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The BBVA case is a follow-up to the law reform that was set in motion by the CJEU's Aziz judgment (on which we reported earlier; see also a posts on CJEU Sánchez Morcillo and CJEU Unicaja Banco). Following this judgment, Spanish procedural was changed so as to make it possible to stay mortgage enforcement proceedings while an assessment of the fairness of the contract terms governing the client/bank relationship is pending. The present case concerns the possibilities for effective judicial policing of unfair contract terms in disputes that had been brought to court before the law reform came into force and had not yet been concluded.
More importantly, in the AG's opinion, several factors justify the conclusion that the time limit renders the exercise of the consumers' rights under Directive 93/13 impossible or excessively difficult (para. 54 ff). These include the facts that procedural time limits in Spanish law hardly ever take effect the day after publication of new legislation, that consumers could only have taken full benefit of the time period set in Art. 4 if they had known about the provision coming into force, and that legal representation was required for raising a claim under Art. 4. Furthermore, on the basis of previous CJEU case law, in respect of national legislation which comes within the scope of Union law, it is for the Member States to establish those periods in the light of, inter alia, the significance for the parties concerned of the decisions to be taken, the complexities of the procedures and of the legislation to be applied, the number of persons who may be affected and any other public or private interests which must be taken into consideration (para. 61, referring to CJEU Sopropé and Pontin) - on all of these points Art. 4 raises concerns. Consequently, the AG reaches the conclusion that a transitional provision as is at stake in the present case does not comply with the Unfair Terms Directive in light of the principle of effectiveness.

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§ 204-1 Findings and purposes.
§ 204-2 Applicability and exemptions.
§ 204-6 Approval of plan.
§ 204-7 Compliance with plan.
§ 204-8 Minor amendments to plan.
§ 204-9 Standards for permit issuance.
§ 204-10 Enforcement and inspection.
§ 204-11 Violations and penalties.
The Township Committee does hereby find that grading and related site improvements not subject to subdivision or site plan approval should be suitably regulated to ensure compliance with various Township requirements. It is the purpose of this chapter to establish an efficient and effective mechanism to ensure such regulation.
Any project that results in a net increase to lot coverage that is more than 0.5% of the lot size.
Projects which result in a disturbance of more than 5,000 square feet that are required to comply with Article XVII (Soil Erosion and Sediment Control) of the Township Land Use and Development Code (Chapter 225).
Projects that include construction of a new driveway.
Any project that increases net lot coverage by more than 1,000 square feet.
Projects receiving subdivision or site plan approval from the Planning Board or Board of Adjustment, provided that required performance bonds and inspection fees have been posted. This exemption is applicable only to subdivision or site plan improvements and not individual lot construction.
Projects that are exempt from Article XVII (Soil Erosion and Sediment Control) and have been granted a variance from stormwater requirements and steep slope requirements (as applicable) and do not include construction of a driveway.
Any project that results in a net increase to lot coverage of less than 400 square feet.
Whenever a permit is required in connection with an applicable project, said permit shall be obtained from the Township Engineer in accordance with the procedures set forth below and the requirements and standards of this chapter.
Any person desiring to engage in activities identified in § 204-2A of this section shall file an application with the Building Department on a form to be provided for said purpose and shall pay the associated application and escrow fees. Application and escrow fees shall be in accordance with Article III of the Township Land Use and Development Code (Chapter 225, § 225-7). Said application shall be accompanied by a grading plan prepared by a licensed professional engineer.
Any person desiring to engage in activities subject to Article XVII (Soil Erosion and Sediment Control) of the Township Land Use and Development Code (Chapter 225) shall also submit an application for plan certification as required by that article.
The filing of an application shall constitute the applicant's consent to the Township Engineer or his/her designee(s) for entry upon the land for purposes of inspection and enforcement.
Within 30 days of the filing of an application, the Township Engineer shall render his/her decision upon the application and, in the case of partial or complete disapproval, shall set forth the basis for such decision in writing.
The Township Engineer shall issue a grading permit upon receipt of an application for such permit, approval of a grading plan, and payment of permit fees and escrow fees as required in Article III of the Township Land Use and Development Code (Chapter 225, § 225-7). For projects that are subject to Article XVII (Soil Erosion and Sediment Control) of the Township Land Use and Development Code (Chapter 225), a grading permit shall not be issued unless plan certification has been granted.
All information as required on Checklist A, attached to this chapter.
Editor's Note: Checklist A is included at the end of this chapter.
All information as necessary or appropriate to fully and adequately describe the proposed project and all measures required to comply with requirements of the Township Code.
The plan shall cover all stages and aspects of the proposed project from grading, stripping, excavation and other site preparation through and including both final grading and the installation of permanent improvements.
In considering and approving a plan, the Township Engineer may impose reasonable conditions or requirements necessary or desirable for the proper implementation of the plan, in accordance with the purposes and intent of this chapter.
After a plan has been approved, it shall be unlawful for the applicant, or any person performing services in implementing the plan, to deviate from or change, amend or modify the plan in any way, except in accordance with § 204-8 below.
Amendments, changes or modifications of a minor nature to a plan required as the result of conditions arising in the field during construction may be ordered or approved by the Township Engineer.
Soil erosion and sediment control (Article XVII of Chapter 225).
Steep slopes (Article XVIII of Chapter 225).
Flood damage prevention (Article XIX of Chapter 225).
Stormwater management (Article XXXIX of Chapter 225).
Driveways (Article III of Chapter 346).
Whether the proposed project would permanently alter existing drainage patterns.
Whether the grading activity has any negative impact on the stormwater drainage onto adjoining lands.
Whether the proposed project, whenever feasible, retains and protects natural vegetation and the natural ground surface.
Whether the proposed design conforms to accepted safety and engineering practices.
The requirements of this chapter shall be enforced by the Township Engineer who shall also inspect or require adequate inspection of the work carried out pursuant to this chapter.
Prior to the issuance of a permit to evaluate existing site conditions and identify potential problems.
Intermittently during the course of construction to verify the maintenance of satisfactory site conditions.
During the construction of all required stormwater control measures.
After completion of all construction and the completion of vegetative stabilization measures.
At other times as may be necessary because of unsatisfactory conditions.
If the Township Engineer finds conditions other than as shown in the plan, or in the event of failure to comply with the plan or any condition thereto, he/she may refuse to approve further work and may require necessary measures to be promptly installed and may require modifications to the plan when, in the judgment of the Township Engineer, such are necessary to properly control off-site impacts.
The applicant shall have the approved plan on site during construction.
In the event of failure to comply with the requirements of this section, the Zoning Official shall refuse to issue zoning permits and shall revoke zoning permits which may have been issued.
If any person violates any of the provisions of this chapter, the Township may institute a civil action in the Superior Court for injunctive relief to prohibit and prevent such violation or violations, and such court may proceed in a summary manner.
Any person who violates any of the provisions of this chapter, any standard promulgated pursuant to this chapter or fails to comply with the provisions of a grading permit shall be liable to a penalty of not less than $25 nor more than $2,000, to be collected in a summary proceeding pursuant to the Penalty Enforcement Law, N.J.S.A. 2A:58-1 et seq. except for soil erosion and sediment control violations which shall be subject to the provisions of § 225-94.
The Superior Court and municipal court shall have jurisdiction to enforce the Penalty Enforcement Law.
If the violation is of a continuing nature, each day during which it continues shall constitute an additional separate and distinct offense.
Grading plan approval. Any person aggrieved by a decision or action of the Township Engineer in denying plan approval shall first submit a written request for reconsideration to the Township Engineer within 10 working days of the action taken, and schedule a meeting to review the reasons for the denial. If the applicant is still aggrieved, the Engineer shall identify the bases for noncompliance in a written opinion within 35 calendar days after the meeting, unless additional time is mutually agreed upon by the Township Engineer and the aggrieved person. If the applicant is still aggrieved, he shall file a written notice of appeal with the Township Clerk within 10 working days of the meeting with the Township Engineer, and the Township Committee shall hear the appeal within 60 days of receipt of the notice of appeal.
Steep slope requirements. Development of steep slopes is regulated in § 225-116 of the Land Use and Development Ordinance. Any appeals must be heard by the Board of Adjustment.
Flood damage prevention requirements. Exceptions from flood damage prevention requirements must be heard by the Planning Board in accordance with § 225-102 of the Land Use and Development Ordinance.
Stormwater management requirements. Stormwater management requirements are referenced in § 225-116 of the Land Use and Development Ordinance. Any appeals, including appeals of any waiver determination by the Township Engineer, must be heard by the Board of Adjustment.
Driveways. Driveway standards are contained in § 225-76 of the Land Use and Development Ordinance. Any appeals to these standards must be heard by the Board of Adjustment in accordance with § 346-14D of the Township Code.


Peter Michael Hoogerwoerd is an accomplished litigator in both state and federal courts with fifteen years of experience in a broad array of civil litigation, criminal defense, transactional, and appellate matters.
Mr. Hoogerwoerd graduated from Southern Illinois University Carbondale with a Bachelor of Arts degree in Spanish and a Minor in Economics in 1993. During his undergraduate coursework, Mr. Hoogerwoerd was a member of a national championship intercollegiate debate team, for which he was awarded an academic scholarship.
He earned his Juris Doctor and Master of Business Administration degrees from the University of Miami Schools of Law and Business in 1998, where he received The University of Miami Alumni Association Award for Student Leadership.
Mr. Hoogerwoerd was born in Redondo Beach, California, and raised in San Juan, Puerto Rico and Chicago, Illinois. He is fluent in Spanish and is a member of the National Association of Underwater Instructors for scuba-diving.
Labor and employment litigation: In addition to successfully representing both plaintiffs and defendants in his core areas of commercial, insurance, and labor and employment related claims, (see Giakoumakis et al. v. Maronda Homes, Inc., 2010 WL 557750 (M.D.Fla.) and Kozma v. Hunter Scott Financial, LLC, 2010 WL 724498 (S.D.Fla.), Mr. Hoogerwoerd has a proven record of success in a wide variety of litigated matters.
Civil RICO (Racketeer Influenced and Corrupt Organizations Act): Mr. Hoogerwoerd co-chaired a federal jury trial in a Civil RICO case in the United States Court for the Southern District of Florida winning a $13.8 million jury verdict for a business owner against former business partners alleging bankruptcy fraud, conspiracy, and theft of business profits. See, Farese v. Scherer, Case No. 9:00-cv-08950-DMM (S.D. Fla.)(D.E. 995). See also, "Reputed Mobster Wins $13.8 Million Jury Verdict," Miami Daily Business Review, Page 1, June 2, 2005.
Appellate litigation: Mr. Hoogerwoerd has appeared as appellate counsel in a variety of matters and is the Attorney of Record for two reported appellate decisions, Elite Protection v. Florida Insurance Guaranty Association, 874 So. 2d 615 (Fla. 4th DCA 2004), and Cartan Tours v. ESA Services, Inc., 833 So. 2d 873 (Fla. 4th DCA 2003).
Professional malpractice, securities, and financial services litigation: Mr. Hoogerwoerd successfully defended an accounting firm in shareholders' federal class action lawsuit in the United States Court for the Southern District of Florida alleging violations of Section 10(b) of the Securities Exchange Act, 15 U.S.C. §78j(b) and Rule 10b-5 17 C.F.R., §240.10b-5, and section 20(a) of the Securities Exchange Act, 15 U.S.C., §78t(a), obtaining a dismissal with prejudice on all fraud counts alleged against the accounting firm. Chiarenza, et al. v. IBSG International, Inc. et al., Case No. 1:09-cv-22736-PAS (S.D. Fla.)(D.E. 82).
Insurance coverage: Mr. Hoogerwoerd has successfully prosecuted actions for declaratory relief against insurance carriers where the insurance carriers failed to meet their obligations under the insurance policies. Through vigorous litigation, Mr. Hoogerwoerd has obtained attorneys' fees for defending the underlying actions, as well as for the actions for declaratory relief. Mid-Continent Casualty Company v. Florida Contracting Construction Services, Donald Pliner and Lisa Pliner, Case No. 07-cv-21168-JLK, consolidated withFlorida Contracting Construction Services v. Colony Ins. Co., General Security Indemnity Co. of Arizona and Mid-Continent Casualty Company, Case No. 07-cv-22821-JLK (S.D. Fla.)(D.E. 32).
Construction defect litigation: Mr. Hoogerwoerd has authored several briefs in federal court on significant issues related to the ever-developing specialty of construction defect litigation, which have led to several important decisions related to surety bond issues and the indemnification of the parties to a construction contract. See, CC Aventura, Inc. v. The Weitz Company, LLC, et al., Case No. 1:06-cv-21598-PCH (2008 WL 1994807, 2008 WL 2699506, and 2008 WL 2699577 (S.D. Fla.)).
Should you need employment help in South Florida, contact Remer & Georges-Pierre PLLC at 305.416.5000 to schedule a free consultation.