I. PROFESSIONAL LIABILITY ISSUES

Members of “Learned Professions”, Including, Those Who Occupy a “Semi-Professional Status”, are Excluded from Liability Under New Jersey’s Consumer Fraud Act (CFA).

In Plemmons v. Blue Chip Insurance Services, Inc., 2006 WL 2388672 (N.J. Super., August 21, 2006). The owner of a property damaged in a storm during a construction delay, brought an action asserting negligence and violations of the Consumer Fraud Act (CFA) against insurance brokers, and §1983 claims against city and city officials. The Superior Court of New Jersey granted the city and city officials’ summary judgment on the §1983 claims. The Court further held that insurance brokers were excluded from liability under the CFA for services rendered within the scope of their professional licenses. The Court relied on its holding in Macedo v. Dello Russo, 359 N.J. Super. 78 (App.Div.2003), that members of “learned professions,” including, those who occupy a “semi- professional status,” engage in “an activity beyond the pale of the [CFA].” Id. at 84. The Court provided, “we are satisfied that insurance brokers are ‘semi- professional[s]’ who are excluded from liability under the CFA for the services they render within the scope of their professional licenses.” Insurance brokers are subject to testing, licensing and regulation . . ., and thus, are exempt from liability under the CFA for the reasons expressed by the court in Neveroski v. Blair, 141 N.J. Super. 365 (App.Div.1976), and reaffirmed by the Supreme Court in Macedo.

II.EMPLOYMENT LITIGATION ISSUES

Pennsylvania Federal Court Rules that an Americans with Disabilities Act (ADA) Retaliation Claim Can Still be Brought to Trial, if Certain Criteria is Met, Even When that Plaintiff’s ADA Disability Discrimination Claim is Dismissed.

In McGee v. The Proctor & Gamble Distributing Co., 2006 WL 2228866 (E.D. Pa., August 29, 2006). The plaintiff, Robert McGee, a 48-year old salesman, claimed that he was unfairly discriminated against by his employer, defendant Procter & Gamble Distributing Company (“P & G”) on account of disability. McGee further claimed that P & G retaliated against him for opposing conduct that violated disability law. Plaintiff’s case was based on treatment he received by his employer after he took a three month leave of absence to treat his depression, acute anxiety, and hypertension. Plaintiff claimed, among other things, discrimination and retaliation in violation of the Americans with Disabilities Act (“ADA”). Plaintiff asserted that he “is and was a person with a disability, extreme high blood pressure, anxiety, and acute depression, all of which substantially limits one or more major life activities as defined by the ADA.” The Third Circuit Court summarized the standard for establishing a statutorily protected disability on this basis as requiring the employee to: (1) show that he has an impairment; (2) identify the life activity that he claims is limited by the impairment; and (3) prove that the limitation is substantial. Fiscus v. Wal-Mart Stores, Inc., 385 F.3d 378, 382 (3d Cir.2004) (citing, Bragdon v. Abbott, 524 U.S. 624, 631, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998)). McGee claimed that his depression had led to an inability to sleep, lack of energy, fatigue, digestive problems, poor attention and diminished concentration. Further, McGee alleged that as a result of his depression and the employment discrimination, he no longer enjoyed life, felt hopeless, was socially isolated and could not handle crowds. The U.S. District Court granted defendant’s motion for summary judgment on McGee's disability discrimination claim, arguing that McGee could not prove that any impairment substantially limited a major life activity. The Court stated, “the discussion of his inability to sleep, lack of energy, digestive problems, and cognitive difficulties, inter alia, does not shed light on which of the major life activities McGee believes have been limited.” However, the Court denied defendant’s motion for summary judgment on plaintiff’s retaliation claim under the ADA holding that, “an ADA retaliation claim may be brought pursuant to § 12203(a), even when a plaintiff's disability discrimination claim is unsuccessful if a plaintiff can show: (1) protected employee activity; (2) adverse action by the employer either after or contemporaneous with the employee's protected activity; and (3) a causal connection between the employee's protected activity and the employer's adverse action.” The Court held that a jury might conclude that there is a causal connection between the adverse employment actions and plaintiff's statutorily protected activity; therefore, it denied defendant’s motion for summary judgment on the ADA retaliation claim.