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					BRIEFCASE
Winter 2009                                                        F r o m t h e L a w O f f i c e s o f B e n d i t We i n s t o c k , P. A .



We Remember Hilton Goldman with Affection
                                Elizabeth all his life. He         former member of the JEC                 Hilton was honored for
                                graduated from the                 Board of Trustees. He was a              his outstanding commitment
                                University of North Carolina       member and served on the                 to Jewish causes by the
                                and Rutgers Law School.            board of trustees of the                 Rabbinical College of
                                Hilton was associated with         Elmora Hills Minyan, and                 America in Morristown.
                                Bendit Weinstock for 35            was honored as “Man of the               He was included in a list of
                                years, retiring three years ago.   Year” by the organization.               New Jersey Super Lawyers
                                                                   Hilton also was a member                 by New Jersey Monthly
                                Hilton was also an arbitrator      and Vice President of the                magazine and was a member
                                for the Essex County Courts.       Jewish Family Service                    of the American Bar
                                In the 1980s, he co-hosted a       Agency in Elizabeth, and                 Association and the New
                                radio talk show in the metro-      served on the board of direc-            Jersey Bar Association.
                                politan New York area called       tors of the Solomon Schechter
                                ROK KAK. The program               Day School of Essex and                  Hilton is survived by his
                                discussed Jewish causes and        Union. He was a former                   wife, Harriet, and son, Dovid.


W
      e mourn the loss of       Israeli politics.                  member of the board of the               He will be missed greatly. BW
      our beloved partner                                          Rabbinical Council of
      and friend, Hilton        Hilton was a member of the         America.
Goldman. Hilton was born        Jewish Education Center
in Newark and lived in          (JEC) of Elizabeth and a



More Than $7 Million Awarded in Estate Matter
P
     ersons who engage in deceptive means to gain control of       had been to exclude our client from sharing in the parents’
     the assets of elderly family members often believe they       intended disposition of their assets, and to conceal the conver-
     can disguise their maneuverings. However, inconsisten-        sion of a portion of those assets. When our client discovered
cies inherent in a concocted story rarely can withstand            that something was amiss, she had, as the Court noted, “the
examination in Court.                                              common sense” to take action, and she filed suit to protect
                                                                   the assets, and to ascertain the entitlements of the benefici-
Such was the case in a six-year matter recently tried to a         aries of her parents’ largesse.
conclusion by Jim Keegan and Sherri Fowler, in which the
Court decided simply what a father and mother, in their            On March 11, 2008, a judgment was entered in the case by
advancing years, intended and undertook to do to distribute        the Superior Court of New Jersey, Chancery Division, Hudson
their accumulated wealth to two of their children and their        County, awarding a total of $7,035,423.06, including
families. The Court found that our client’s brother and his        principal, pre-judgment interest and attorneys’ fees to our
wife breached fiduciary duties and engaged in self-dealing, as     client, the plaintiff, and members of her family, and against
well as “a pattern of conduct that reflect[ed] evasion, avoid-     our client’s brother and his wife. (Continued on page 2)
ance, evading preparing documents, avoiding answering
questions, and acts of omission.” The goal of this deception
                                      From the
 Estate Matter
 continued from page 1


                                      Docket of Abbott Brown
 The Court adjudged the
 defendants to have breached
 their fiduciary duties as General
 Partners of a family partnership
 and found that the brother
 exercised undue influence over       Abbott Brown, one of our          $1,000,000, which will be         Failure to diagnose
 his and plaintiff’s mother,          partners, had a busy              used to purchase a structured     incompetent cervix case
 inducing her to change estate        2008 docket. During the           settlement annuity that will      settled for $250,000
 planning documents, including a      second quarter of 2008,           provide care for the child for
 will and a trust.                    Abbott resolved the following     the remainder of her life.        Abbott represented a woman
 During the litigation, the Court     medical malpractice cases.                                          who had a history of an
 appointed three separate                                               Failure to diagnose vitamin       incompetent cervix. During
 experts/agents to examine the        Wrongful Death/Medical            B12 deficiency case settled       the pregnancy in question,
 transactions of a family limited     Malpractice case settled for      for $1,000,000                    the defendant refused to
 partnership, the estate planning     $1,300,000                                                          place a cerclage suture, a
 documents, and to conduct an                                           Abbott represented a man          treatment that had been used
 examination of the mother prior      Abbott, along with co-            who presented to two doctors      in the patient’s previous
 to her death in April 2001.
 The trial of the matter took place   counsel Ray Gill, Esq.,           complaining of neurological       pregnancies. Tragically, the
 over 20 days, between                settled a case involving the      deficiencies. The neurological    patient delivered her child at
 October 19, 2005 and August 6,       wrongful death of a woman,        deficiencies were                 18 weeks, and the child did
 2006. After extensive written        as the result of a delay          due to the                        not survive. This case settled
 post-trial submissions, the Court    in diagnosing colon cancer.       absence of                        during trial for $250,000.
 rendered an oral opinion in May      The client presented with         vitamin
 2007. Final judgment was             repeated evidence of iron         B-12, which                       Failure to diagnose macular
 entered 10 months later follow-      deficiency. The plaintiffs        was revealed                      degeneration case settled for
 ing applications relating to         alleged that the defendant        by certain                        $150,000
 settlement of the judgment and       should have recognized            blood tests,
 issues ancillary to the conclusion   that the iron deficiency was      however,                          Abbott represented a patient
 of the matter.
                                      due to gastrointestinal           neither doctor made the           who presented at an
 In its opinion, the Court found      bleeding, but failed to do so.    correct diagnosis. As a result,   optometrist for an eye
 that after the 1993 death of the     The plaintiffs alleged that       the client suffered permanent     examination. The exam
 father, the brother and his wife     had a timely diagnosis been       nerve damage, primarily to        revealed poor
 took over the mother’s finances
 and the operation of the family      made, the plaintiff would         his legs and feet. This           vision in the
 partnership. The Court addition-     have had a reasonably good        case settled for $1,000,000,      left eye,
 ally found that the brother and      chance of survival. The           with each defendant doctor        however, the
 his wife failed to maintain          decedent left a husband and       contributing equally.             optometrist
 records of the family partnership,   four children.                                                      did not
 and withdrew over two million                                          Failure to remove lap pad         investigate
 dollars from the partnership for     Failure to prevent premature      case settled for $290,000         further as to
 their sole use.                      birth case settled for                                              the cause of
 The Court also found that the        $1,000,000                        Abbott represented a man          the poor
 brother had taken actions that                                         who had a cardiac pacemaker       vision, or refer the patient to
 were intended to result in his       Abbott represented a family       implanted at a hospital.          an ophthalmologist. The
 family’s obtaining a greater share   whose child was born              During the procedure, a           patient was diagnosed with
 of the family partnership, to the    after 26 weeks of gestation.      sponge was left within the        dry macular degeneration
 detriment of plaintiff and her       The family alleged that the       body cavity. This was             and lost substantial vision in
 family. The Court fashioned its      defendants were negligent in      discovered approximately one      his eye. The case settled for
 judgment to compensate the
 wronged partners for their losses,
                                      failing to diagnose a condi-      month later, at which time        $150,000. BW
 and to compensate plaintiff,         tion called incompetent           the patient was suffering
 as a beneficiary of her parents’     cervix, and in failing to treat   from a significant infection.
 estates and trusts.                  the resulting recurrent           The sponge and pacemaker
                                      leakage of amniotic fluid.        were removed and the
 Jim and Sherri currently are         The case settled for              pacemaker was subsequently
 defending the appeal of the                                            replaced. This matter
 judgment by our client’s brother                                       was resolved for $290,000.
 and sister-in-law.

Winter 2009                           Briefcase                         From the Law Offices of Bendit Weinstock, P.A.
Roth, Brown, Keegan, and Gold
Named Super Lawyers
P
     artners Alan Roth,         a blue ribbon panel review       or co-counsel, or through         Our attorneys were named
     Abbott Brown, James F.     and thorough independent         other first-hand observation      Super Lawyers in the
     Keegan, and William        research. The list of 2008       in the courtroom. The intent      following practice areas:
Gold were named New             New Jersey Super Lawyers is      is to discourage lawyers          Alan Roth in Personal
Jersey Super Lawyers for        based on a general survey,       from voting for others based      Injury Plaintiff - General;
2008. Only five percent of      in which ballots are mailed      purely on reputation.             Bill Gold and Abbott Brown
all New Jersey attorneys        to every attorney in the                                           in Personal Injury Plaintiff -
are named to the New Jersey     state who has been licensed      Each lawyer is given a score      Medical Malpractice; and
Super Lawyers list, which       to practice for five years       based on the number of votes      James Keegan in Business
was published in the April      or more.                         he or she receives and the        Litigation, Trust & Estate
2008 issue of New Jersey                                         source of those votes. Votes      Litigation. BW
Monthly and in New Jersey       Attorneys are asked to           received from lawyers in
Super Lawyers magazine.         nominate the best lawyers        other firms count for signifi-
                                they have personally             cantly more points than votes
New Jersey’s top lawyers are    observed in action —             received from lawyers in
chosen by peer nominations,     whether as opposing counsel      the same firm.




Bendit Weinstock Raises Money for Food Banks
I
  n recent years, Bendit Weinstock has participated in several   Now, with the formation of the Bendit
  fundraising endeavors for local charities and now is           Weinstock Charitable Fund (BWCF), the
  going one step further by forming the Bendit Weinstock         firm will continue to raise money for these
Charitable Fund. In 2006 and 2007, Bendit Weinstock              food banks. Details regarding
participated in the ATLA-NJ Annual Thanksgiving Turkey           this fund will be posted in
Drive and helped raise approximately $25,000 both years.         our next newsletter. Anyone
These funds supported a variety of food banks including          who wishes to contribute to
The Interfaith Food Pantry, The Center For Food Action, and      BWCF, can do so by sending a
The Beth El/St. Marks Food Bank.                                 check payable to the Bendit
                                                                 Weinstock Charitable Fund.
This past May, Bendit Weinstock partner Abbott Brown             One hundred percent of all
participated in the Five Boro Bike Tour of New York,             donations, without any
a 45-mile ride through all five boroughs of New York. One        deductions for administrative or any other costs, will be
week before the event, Abbott decided to turn this recre-        donated to the two food banks mentioned above.
ational cycling event into a fundraiser. He sent e-mails to a
number of friends in the medical malpractice litigation          Please note that personal injury clients of the firm are not
community. These colleagues pledged a total of $5,800, and,      permitted to contribute to this fund while their cases
upon completion of the ride, he collected and sent the $5,800    are pending. BW
to the Interfaith Food Pantry in Morristown and the Beth
El/St. Marks Food Bank in South Orange. We sincerely thank
all of those persons who contributed to this fundraiser.

Winter 2009                     Briefcase                        From the Law Offices of Bendit Weinstock, P.A.
Cases from the                                                                                       Alan Roth
                                                                                                     Recognized in
Trial Docket of Alan Roth                                                                            The Best
                                                                                                     Lawyers in
A Tragic Accident                We were able to recover over    doctor ignored an abnormal
                                 $500,000 in the New Jersey      finding on the child’s leg,         America
We recently concluded a case     Workers Compensation            which was visible on the
involving both New Jersey        Court for the benefit of the    scan. As a result of the doc-
and Massachusetts jurisdic-      decedent’s children.            tor’s failure to further            Alan Roth was recently selected to
tions, which ultimately led      Thereafter, Massachusetts       investigate that abnormal           be included in the 2009 edition
to multiple settlements in       counsel vigorously prose-       finding, a small and treatable
excess of $1,850,000. We         cuted the case against the      lesion grew for a year and          of The Best Lawyers in America in
represented the estate of a      owner of the cow as well as     became a large, high-grade          the specialty of Personal Injury
New Jersey truck driver who      surrounding property            osteosarcoma of the femur.
was killed while driving on a    owners who had contributed      After several years of              Litigation. The publication is a
Massachusetts highway. The       to the circumstances that       agonizing treatments and            guide to the nation’s top attor-
causes of this accident were     allowed the cow to escape       surgery, the child ultimately
                                                                                                     neys chosen by their peers
bizarre. A cow was allowed       onto the highway. This          died. Because the treating
to escape from a family estate   resulted in an additional       doctor had deviated from            for legal excellence in their
near                             settlement of $1,350,000.       standards of medical care, the      specialties.
the                                                              diagnosis of the different
highway.                         Medical Malpractice             cancerous tumor was delayed,
It                               Settlement                      causing the child to lose a         Mr. Roth joined Bendit Weinstock
wandered                                                         chance for curative treatment
onto the                         On the eve of trial, Alan       and survival.                       in 1974 and became a partner
roadway                          settled a medical malpractice                                       in 1980. He practices primarily in
where it was struck and          case involving the death of     A pediatric oncologist who
                                                                                                     the area of personal injury,
killed. Another truck,           a young boy, for $1,500,000.    worked with us as an expert
attempting to avoid the dead     The circumstances that led      in this case provided clear         including medical malpractice,
cow on the roadway, went         to the young boy’s death        opinions as to how and why          product liability and workers’
out of control and struck our    were, in fact, avoidable.       this error took place and the
client’s vehicle.                                                consequences of the defen-          compensation.
                                 The child had been              dant doctor’s errors. We
Our office conducted the         previously diagnosed with       were able to show that the
initial investigation in         cancer. Fortunately, as a       defendant doctor concentrat-        Selection to Best Lawyers is based
Massachusetts. We discov-        result of surgery and aggres-   ed the investigation on             on a rigorous peer-review survey
ered that this particular cow    sive chemotherapy, the          the original type of cancer,
                                                                                                     comprising more than 2.5 million
had escaped on several           cancer condition was cured.     completely missing the
previous occasions. Because      His case was followed by        different form of cancer that       confidential evaluations by the
it appeared that a number        doctors for the next several    the young boy contracted.           top attorneys in the country. The
of parties were negligent in     years, and all indications      This cancer would probably
allowing this animal to          were that the cancer had not    have been curable if discov-        list of Best Lawyers in the New
roam freely near the highway     returned. At this point, the    ered early. Ironically, the         Jersey, New York and Connecticut
without proper precautions,      child resumed a completely      original form of cancer never
we referred the case to          normal life.                    returned. BW                        areas was excerpted in the
Massachusetts counsel. We                                                                            December 2008 issue of New
worked together with them        During a routine visit to the                                       York magazine.
through the conclusion           doctor who was monitoring
of the case, which included      the child, the young boy
Alan’s appearance in the         expressed some complaints
Massachusetts’ Court on the      of leg pain and a bone scan
concluding hearing date.         was performed. Although
                                 the bone scan did not reveal
                                 any reoccurrence of the prior
                                 type of cancer, the treating

Winter 2009                      Briefcase                       From the Law Offices of Bendit Weinstock, P.A.
Supreme Court Orders New Trial While Ruling on
Trial Judge’s Appearance of Impropriety
O
      n September 24, 2008, the Supreme Court of New               case fell short of the long standing requirement in New
      Jersey announced a decision in a case which had been         Jersey that “justice must satisfy the appearance of justice.”
      handled by our firm for five years. The case involved a      We argued that judges are required to avoid situations which
dispute between two principals of a limited liability compa-       could even create an impression that there existed favoritism,
ny, their disassociation, and ultimately, what was owed to         bias, or that there was any other reason that would cause
our client due to his ownership interest in the company. The       one to wonder whether a litigant received a fair hearing.
Supreme Court’s opinion, in the matter of DeNike v. Cupo,
did not directly address the substance of the parties’ dispute,    The Supreme Court agreed, and reversed the judgment,
however; instead, the Court’s opinion spoke to a situation         ordering a new trial. In its opinion, delivered by Chief Justice
that arose after the case was tried, but before final judgment     Rabner, the Court noted, “unfortunately, the negotiations
was entered. What occurred was that the attorney for the           between trial judge and lawyer in this case created an appear-
other party in the case approached the trial judge before the      ance of impropriety.”
final judgment was entered, and offered the judge a position
with his law firm upon the judge’s retirement, which was           The Supreme Court’s opinion is an important one because it
imminent. Negotiations ensued and the judge accepted the           gives guidance to judges seeking post-judicial employment.
attorney’s offer of employment shortly thereafter.                 The standards enunciated by the Court are consistent with
                                                                   promotion of public confidence in the judiciary. The Court
The Supreme Court’s opinion addressed the appearance of            also sought further recommendations as to this issue from the
impropriety caused by the judge’s entertaining an offer            Professional Responsibility Rules Committee and the
for post-judicial employment from an attorney involved in a        Advisory Committee on Extrajudicial Activities.
matter before the judge, and reaffirmed the principle that
judges of this state must always promote public confidence in      James Keegan, Sherri Davis Fowler and Barrett Kalb
the judiciary by avoiding not only actual conflicts but also       represented our client in this case, including the multiple
the appearance of impropriety in all they do.                      appeals. The Supreme Court opinion may be found at:
                                                                   http://lawlibrary.rutgers.edu/courts/supreme/a-61-07.opn.html,
On behalf of our client, we sought a new trial of the matter,      and a video of Mr. Keegan’s oral argument of the case
and during the appeals which followed, first to the Appellate      may be accessed and viewed at:
Division of the Superior Court, and then to the Supreme            http://njlegallib.rutgers.edu/supct/bytitle.php. BW
Court, we consistently urged that the conduct at issue in this



Bergé Involved with Healthcare Issues
                                 medical malpractice, and          and Mental Hygiene                attack, or would administer
                                 legal issues in the physician     (DOHMH), Bureau of                vaccines for smallpox or
                                 assistant employment              Emergency Management,             avian (bird) flu in the event
                                 setting. Peter, an associate at   Medical Reserve Corps             of an emergency. This
                                 Bendit Weinstock since            (MRC), on how to set up and       training was designed to
                                 2004, has been a licensed         run a Point of Dispensing         prepare volunteer healthcare
                                 physician assistant in New        (POD) center. PODs would          professionals for leadership
                                 York State since 1987. He         be used to distribute antibi-     positions in the public health
                                 gives lectures on medicolegal     otics or vaccines during an       emergency response system.
                                 topics to local and national      emergency requiring mass          Peter has been a member of


I
 n May 2008, Peter Bergé         audiences.                        prophylaxis of a large num-       the MRC for several years. BW
 lectured to the senior class                                      ber of New Yorkers. For
 of the Physician Assistant      On June 21, 2008, Peter           instance, staff and volunteers
Education Program of Pace        attended an all-day training      in PODs would give out
University in New York City.     session by the City of New        millions of doses of antibi-
He was asked to speak about      York Department of Health         otics in case of an anthrax

Winter 2009                      Briefcase                         From the Law Offices of Bendit Weinstock, P.A.
                                                                                                       Bendit Weinstock
                                                                    About this
Bhattacharya Joins Firm                                             Newsletter
                                                                                                       A Professional Corporation

                                                                                                       Counsellors at Law
                                                                                                       80 Main Street, Suite 260
                                                                                                       West Orange, NJ 07052


B
     endit Weinstock is                                             Editor: Anthony Mazza              Telephone 973-736-9800
     proud to announce that                                                                            Facsimile 973-325-3115
     Kingsuk “Raj”                                                                                     www.benditweinstock.com
Bhattacharya joined the firm                                        An electronic version of this
                                                                                                       Benjamin L. Bendit (1950-1984)
as an associate in November                                         newsletter may be found at         Thomas E. Weinstock (1955-2000)
2007. He had been a law                                             www.benditweinstock.com.           Hilton P. Goldman (1965-2008)
clerk with the firm since
May 2006. Raj practices in                                                                             Alan Roth (NJ & FL Bars)
the areas of commercial                                             This newsletter is published for   Personal Injury Litigation,
litigation, general litigation,                                     the information of our friends     Workers’ Compensation, General Litigation
landlord/tenant law, franchise                                      and clients. Please contact Ruth   James F. Keegan*
law, and personal injury law.                                       Smith at (973) 736-9800 or         Commercial Litigation, Matrimonial,
                                                                    rsmith@benditweinstock.com if:     Bankruptcy, Administrative Law
Raj received his J.D. from        and currently resides in
Seton Hall University Law         Harrison, New Jersey.                                                Abbott S. Brown*
School in Newark, in May of                                         • Your address has changed.        Medical Malpractice, Personal Injury Litigation
2007 with a concentration         Raj is a member of the Asian      • You desire assistance in         Roger J. Desiderio*
in the Law School’s presti-       Pacific American Lawyers          obtaining further information      Litigation, Municipal Law,
gious Health Law program.         Association of New Jersey                                            Workers’ Compensation, Real Estate
                                                                    about anything referred to
He earned a B.A. degree in        (APALA), the Hudson
economics and government          County Bar Association, and       in this newsletter.                William L. Gold*
from the University of Texas      the South Asian Bar                                                  Medical Malpractice, Personal Injury Litigation,
                                                                                                       General Litigation
in Austin. Born in Houston,       Association of New Jersey.
Texas, he was brought up          He is fluent in speaking and                                         Sherri Davis Fowler (NJ & VA Bars)
in New Orleans, Louisiana,        writing Bengali. BW                                                  Commercial Litigation,
                                                                                                       Bankruptcy, Matrimonial

                                                                                                       Anthony Mazza*


Nursing Home Bill of Rights
                                                                                                       Personal Injury Litigation,
                                                                                                       Workers’ Compensation

                                                                                                       Associates

                                                                                                       Peter I. Bergé

T
    he State of New Jersey provides its nursing home
    residents with specific legal rights and privileges to                                             Kingsuk Bhattacharya
                                                                                                       Isabelle Farrell Britton (NJ, NY & CT Bars)
    ensure that they are accorded the same benefits and
protections all New Jersey citizens enjoy.                                                             Of Counsel

New Jersey created a nursing home residents’ “bill of rights,” outlining a standard of care for        Christine M. Tiritilli
all nursing homes, to ensure that residents do not receive inferior treatment. These rights
                                                                                                       Counsel
relate to medical care, the physical and personal environment of the nursing home and the
privacy and confidentiality of patients. Some of the more important rights are:                        Barrett F. Kalb (NJ & NY Bars)
                                                                                                       Max Spinrad (NJ & NY Bars)
• The right to participate in planning one’s medical treatment and care
• Freedom from mental and physical abuse                                                               * Certified by the Supreme Court
• The right to live in safe, decent and clean conditions                                               of New Jersey as a Civil Trial Attorney
• The right to be treated with courtesy, consideration and respect

A nursing home may be liable if you or one of your family members has been injured or have
had their rights violated due to a neglect of duty or a failure on the part of nursing home staff
to exercise reasonable care. Some common examples of such a failure of care include
malnutrition, bedsores and injuries resulting from falls.

Bendit Weinstock would be happy to assist you in these matters. Please contact our office if
you have experienced such problems with nursing home care. BW

Winter 2009                       Briefcase                       From the Law Offices of Bendit Weinstock, P.A.

				
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