Right to Appeal Army Corps Decision on Jurisdiction

On May 31, 2016, the Supreme Court of the United States issued its opinion in United States Army Corps of Engineers v. Hawkes Co., Inc.  That opinion has significance because it addresses a jurisdictional determination made by the ACOE.The Clean Water Act prohibits the discharge of material into the waters of the United States.  That prohibition can affect the remediation or development of property that is adjacent to water bodies or wetlands.

In order to ascertain if the movement of soil will affect waters of the United States it is necessary to obtain a jurisdictional determination from the ACOE.  A definitive decision as to whether wetlands or a water body constitute waters of the United States is binding on the ACOE and the Environmental Protection Agency (EPA) for five years.

In Hawkes the Supreme Court held that an ACOE jurisdictional determination constitutes a final administrative decision which is appealable to a Federal District Court.  That decision, thus, eliminates the requirement that before appealing an aggrieved party must exhaust all administrative remedies such as the lengthy and expensive process of applying for a permit to fill property or discharge material into waters of the United States.

William Wolf, a partner in Bathgate, Wegener & Wolf, P.C. has significant experience dealing with the ACOE.  For instance, Mr. Wolf represented a property owner that had been charged with filling wetlands and discharging material into federal waters.  That activity required legal defense of an enforcement action in the United States District Court.  Recently, Mr. Wolf, on an appeal, obtained a reversal and a remand of a decision of the ACOE denying permits for a proposed municipal marina under the Clean Water Act and the Rivers and Harbors Act.  As a result of that remand and a long administrative process the ACOE eventually issued the necessary permits for the marina.  Mr. Wolf is currently providing legal representation in relation to a commuter ferry terminal which will require permits from the ACOE.  Mr. Wolf is advising another client on a project that may also require ACOE permits.

Mr. Wolf represents property owners, developers and municipalities in all aspects of development, redevelopment and remediation involving state and federal permits.  If you have questions regarding the Hawkes opinion or ACOE permits please contact Mr. Wolf at 732-363-0666.

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Why are the Bay Head Ocean Front Property Owners Opposed to the Dune/Berm Project Proposed By the State of New Jersey?

Bathgate, Wegener & Wolf represents many of the Bay Head Ocean Front Property Owners (“BHOFPO”). Cumulatively, the BHOFPOs represented by the Firm own approximately one half of the oceanfront property in Bay Head. In furtherance of protection of their property and the property of others, the BHOFPOs are willing to give the State of New Jersey a license to erect a dune and berm on their properties (“the Project”). The State, however, does not want a license. Instead, the State is demanding that the BHOFPOs provide a perpetual easement over the properties, but has assured the BHOFPOs that it will not do anything that will change the “overall character” of the properties. So, what’s the problem? Why are the BHOFPOs unwilling to grant the perpetual easement? As is often the case in property rights disputes, the “devil is in the details” regarding how the “overall character” of the affected properties may change because of the Project and the easements that the State is demanding to complete the Project.

There are many issues that affect individual property owners in different ways. Access to the beach and ocean without the ability of the owners to go straight from their houses or directly from their decks to the beach and ocean is a major concern for many property owners. For others, the loss of the view from the dune deck of the beach and ocean is a major detriment. The loss of privacy for some is a significant problem. The concern most often expressed by the BHOFPOs, however, is centered on the essence of private property rights: the BHOFPOs are fearful that they will be deprived of the right to protect their homes and property. Once the State of New Jersey and the Army Corps of Engineers (“ACOE”) is granted or takes the easement over the property, the State and the ACOE has perpetual and exclusive control to construct and maintain a public beach and protective dune. But there is no obligation on the Government’s part to do any replenishment of the beach, though all sides agree that the dune will erode away. Hence, the property owners will no longer have the right to spend their own money, either singularly or in a cooperative effort, to protect their homes and property.

For many years, at their expense, the BHOFPOs have maintained a rock revetment constructed at +16 feet NAVD (historically, parts of the revetment date back to the 1880s). As proven by Superstorm Sandy, the original revetment works to protect property. During Sandy, houses behind the revetment were spared from substantial damage. Subsequent to Sandy, newer extensions were added to both the north and south ends of the original revetment. The revetment now stretches from Lyman Street in Mantoloking to the southernmost two properties in Point Pleasant Beach. The newest sections of the revetment are constructed at +18 feet in vertical orthometric height (NAVD) with large four foot granite quarry stones which weigh approximately 8,000 pounds each.

Property owners not only rely on the revetment for protection, but also affirmatively maintain and create an active dune system to further protect their homes and property.  Each spring, the BHOFPOs, once again, at their own expense, push sand up from the beach recreating dunes which have eroded from the previous winter’s storms. The ocean replenishes the “pushed sand” virtually overnight. This protective activity is enhanced by nature during the summer because the summer winds and tide tend to add reliction to the beach. The State’s proposed easement, which makes the entire lot outside of the building envelope public, prohibits the owners from performing their annual dune replenishment “sand push”. There is no requirement for the ACOE to provide any subsequent replenishment, although the ACOE has recited that replenishment of the dunes, which all parties agree will erode away every 3-5 years, is contemplated. The partnership agreement between the ACOE and the BHOFPO conditions any ACOE involvement in dune replenishment upon the following:

(1) appropriation of funds for that purpose by Congress, though no such funds are yet appropriated;

(2) 50% share of funds to be provided by the State, though no such funding has been authorized; and

(3) the potential replenishment project must satisfy a new cost benefit analysis (CBA). The original CBA supporting the Government’s dune replenishment project did not take into consideration either the steel revetment wall to the south in Mantoloking or the original revetment in Bay Head. Some experts say that these factors if analyzed as part of the new CBA would have made it impossible for the Project to satisfy the cost benefit analysis. The engineering analysis by the ACOE has not been updated to account for the hard structures erected post Sandy, which would substantially change the Benefit-to-Cost ratio (BCR) and would likely not support the expenditure of public funds currently expected for the Project. The State’s own studies confirm that the Corps’ BCR would be materially impacted.

Faced with a total lack of assurance from the Government that they will be able to protect their homes, which is the most fundamental tenet of private property rights, the BHOFPOs, not surprisingly, are unwilling to provide the State and the ACOE with a perpetual easement over their properties. Historically, the BHOFPOs have achieved remarkable success in protecting their property and in turn, the property located west of their property. The Government is unable to point to a similar success story. In sum, “that’s the problem” with which the BHOFPOs are confronted.

Product Liability Claims

If you have been injured by a product you purchased or were using you should do the following:

  1. Photograph the product;
  2. Photograph the area in which the incident occurred;
  3. Gather photographs of the product and the area in which the accident occurred that predated the incident;
  4. Gather all documents that came with the product such as the operating instructions, warranty information and the product brochure.  If you were harmed by a prescribed medication or over-the-counter product, preserve the container, doctor’s written instructions regarding usage and the package insert;
  5. If you purchased the product gather the sales receipt, your cancelled check, credit card statement and other documents establishing the purchase;
  6. Do not throw the product away;
  7. Do not attempt to repair or alter the product;
  8. Record the names, addresses, telephone numbers and email addresses of witnesses;
  9. Cooperate with all medical care professionals; and
  10. Call an attorney who has handled product liability claims.

Attorneys at BWW have a great deal of experience with product liability cases.  Please contact us if you want further information regarding an injury related to a product.  All preliminary consultations regarding product liability claims are free of charge.

William J. Wolf of Bathgate Wegener & Wolf, P.C. successfully sued an electrical utility in a case involving electro-magnetic fields (EMF) and in another case involving stray current. Mr. Wolf has also handled asbestos litigation and a lawsuit that involved the failure of components in facilities that used sophisticated processes for waste disposal which resulted in a post-trial settlement of almost $17 million.

Mr. Wolf is a Senior Fellow of the Litigation Counsel of America, he has been designated as a Super Lawyer and AV Preeminent® for many years and he was selected to be listed in the Best Attorneys of America.  Mr. Wolf has been certified, by the American Institute of Appellate Practice, as an appellate specialist.

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Ferry to the Mall 

A mammoth mixed use project is being developed in Sayreville, New Jersey.  According to published reports 400,000 vehicles a day currently pass that site. The Sayreville site is within a few miles of Carteret which is in the process of obtaining permits to build a ferry terminal.The synergies between a project of the magnitude of the Sayreville site with ferry service between Carteret and New York are likely to be significant.  The lower sales tax in New Jersey will create an incentive for weekend shoppers to travel from New York City. Reverse weekday commuting is also feasible.  Trans-model linkage by busses or vans creates an easy connection between the Sayreville site and Carteret.

It is estimated that when the Sayreville project has been completed 221 million people per year will drive by that property.  That traffic volume emphasizes the need for the commuting alternatives provided by a ferry.  The current concern about deteriorating transit infrastructure highlights the need for alternatives to trains, cars and busses.

William J. Wolf of Bathgate Wegener & Wolf, P.C. has been retained by the Borough of Carteret in Middlesex County to represent it in initiating ferry service between Carteret and Manhattan.  Because Carteret controls a significant portion of its waterfront, it is uniquely situated to provide ferry service as a viable alternative to rail and highway access to Manhattan not only to its residents but to travelers who would otherwise commute by car, train or bus.  It is anticipated that ferry service will act as a catalyst for the redevelopment of the Carteret waterfront.

The Carteret ferry project is only one of several municipal infrastructure and redevelopment projects that Mr. Wolf has been retained to handle.  In addition to the ferry project, Mr. Wolf is currently working on a municipal marina, airport and commercial redevelopment projects in Middlesex County and Monmouth County.

Mr. Wolf is a Senior Fellow of the Litigation Counsel of America, he has been designated as a Super Lawyer and AV Preeminent® for many years and he was selected to be listed in the Best Attorneys of America.  Mr. Wolf has been certified, by the American Institute of Appellate Practice, as an appellate specialist.

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Court Agrees Electricity is a Product 

​In its recent decision in Zeck v.Atlantic City Electric (Docket No. A-5506-13T4), the Superior Court of New Jersey, Appellate Division addressed claims derived from electricity distributed by Atlantic City Electric (“ACE”).  Although the plaintiffs in Zeck did not specifically set forth a claim for product liability in their complaint, the appellate court concluded that the trial court was not in error when it refused the motion made by ACE to dismiss the complaint.  Plaintiffs’ claim was submitted to the jury under the theory that the damage plaintiffs sustained was the result of a manufacturing defect associated with ACE’s electrical service.  Of significance is the conclusion that electricity was a product and that its generation and distribution are subject to New Jersey’s Product Liability Act (“PLA”).William J. Wolf of Bathgate, Wegener & Wolf, P.C. successfully sued an electrical utility in a case involving electro-magnetic fields (EMF) and in another case involving stray current.  Concluding that electricity is a product, as the court did in Zeck, may enhance the probability of success in suits with electrical companies.Mr. Wolf is a Senior Fellow of the Litigation Counsel of America, he has been designated as a Super Lawyer and AV Preeminent® for many years and he was selected to be listed in the Best Attorneys of America.  Mr. Wolf has been certified, by the American Institute of Appellate Practice, as an appellate specialist.

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Quick Resolution of Alleged Patent Quota Whistleblower Case against L’Oreal

Judge Susan Wigenton of the Unites States District Court for New Jersey quickly dismissed a whistleblower wrongful retaliatory firing claim against L’Oreal. L’Oreal successfully moved for dismissal at the earliest stage in the litigation, before even answering the Plaintiff’s complaint.  Judge Wigenton found that even assuming all the allegations alleged by the Plaintiff were true, there would not be a viable cause of action for wrongful retaliatory firing.The Plaintiff, Steven J. Trzaska, was a patent attorney employed by L’Oreal in its Clark New Jersey facility until December 2014.  Mr. Trzaska was employed by L’Oreal for 10 years and oversaw the Clark facility’s patent application process.  Trzaska’s complaint alleged that L’Oreal had a yearly quota of 500 patent applications and failures to meet quotas would negatively affect “careers and/or continued employment.”  Trzaska’s group filed only half of its quota of patent applications in 2014.  Trzaska informed his superiors that “neither he nor the patent attorneys who reported to him were willing to file patent applications that the attorneys believed were not patentable . . . solely for the purpose of meeting” quotas.   The complaint alleged that Trzaska believed that he would “run afoul of ethical and legal mandates governing their practice as patent attorneys” by filing certain applications

 

The New Jersey Legislature enacted the whistleblower statute, formerly known as the Conscientious Employee Protection Act (“CEPA”), to “protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct.” Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431 (1994).  Judge Wigenton found that the New Jersey Rules of Professional Conduct for attorneys do not forbid L’Oreal from adopting metrics or measurable goals for its cosmetic business or define how L’Oreal may go about securing or maintaining intellectual property rights. Furthermore, the Court found that CEPA protections come into effect when “a reasonable lay person would conclude that illegal activity was going on or at the very least, is imminent”  and it “is not enough to claim that a policy may, possibly, at some time in the future, violate a rule or law.”  Judge Wigenton held that pressure from management to meet a quota is not equivalent to instructions to violate rules of attorney conduct, or other laws or regulations.  Therefore, no CEPA violation occurred and the complaint was dismissed.

The Intellectual Property Department and the Employment Law Department at Bathgate, Wegener & Wolf counsels employers and employees regarding IP issues and their effect on the employment relationship. Please contact us at 732-363-0666 with any questions that you may have.

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Legislative Update – New Expungement Law

Governor Chris Christie recently signed into law a measure designed to ease the path toward expungement of certain criminal records.  The new law shortens the waiting periods for expungement of criminal records and makes various changes to other expungement procedures and requirements.Under the new law, a person convicted of a crime is permitted to file an expungement petition, which may include additional, separate petitions seeking to expunge up to two other convictions for disorderly persons or petty disorderly persons offenses.  The application can be filed after the expiration of 5 years from the date of the person’s most recent conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration.  Previously the waiting period to file an expungement petition with respect to a crime was 10 years.A person convicted of a disorderly persons or petty disorderly persons offense, but not convicted of a crime, may apply for expungement after the expiration of 3 years from the date of the person’s most recent conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration.  Previously the waiting period to file an expungement petition with respect to disorderly persons and petty disorderly persons offense was 5 years.

A person arrested or charged with a crime, disorderly persons offense or petty disorderly persons offense but not convicted may have all records and information relating to the arrest or charge expunged immediately by the Superior Court.  A person seeking expungement of Municipal Court charges is not required to pay a fee for the expungement application.

A person who is, or was prior to the effective date of this new law, sentenced to the State’s Drug Court Probation Program and who successfully completes the Program may have all records and information relating to prior arrests, detentions, convictions, and proceedings for any offense set forth in the Criminal Code, Title 2C of the New Jersey Statutes expunged.

This legislative update is only meant to summarize this new law.  There are many nuances and details within the new law that are not identified or described within this update.  If you have ever been convicted of a crime, disorderly persons or petty disorderly persons offense, if you’ve been successfully discharged from the State’s Drug Court Probation Program, or if you have ever been arrested or charged with an offense that did not result in a conviction or finding of guilt, contact this office for a free consultation regarding the expungement of your records.

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Public Project Facilitator

Public projects, including ones undertaken by the New Jersey Department of Transportation (“NJDOT”), can have significant public impacts.  Construction of even a simple NJDOT project can involve areas of public concern such as temporary disruptions of existing travel patterns and environmental impacts.Because of the varied interests that can be impacted by NJDOT projects, it is necessary to solicit public comment and to keep the public informed as the design and construction of the project progresses. To ensure adequate dissemination of information and to encourage public input, it is frequently necessary for the sponsor of a project to engage a project facilitator.  The role of a public facilitator is multifaceted and includes disseminating critical project information by publishing public notices, devising a public information center and organizing public meetings.  At various steps in the project schedule a project facilitator arranges various opportunities for the project sponsor and NJDOT to solicit public comments on the benefits associated with the project, the design of the project, alternative analysis and societal impacts.  Utilizing various modes of communication the public facilitator is able to generate the depth of public involvement that is necessary to cause transportation projects to reflect societal needs and perspectives.William J. Wolf, of Bathgate Wegener & Wolf, P.C. has many years of experience guiding project sponsors through NJDOT project development that included public dissemination of project information associated with the role of project facilitator.  Mr. Wolf’s many years of experience with NJDOT projects has given him broad insights into the dissemination of information associated with the role of a project facilitator for NJDOT projects.  If a project is being undertaken that can benefit from the broad dissemination of information to facilitate public education and comment Mr. Wolf can be contacted at 732-363-0666 or wwolf@bathweg.com.

Mr. Wolf is a Senior Fellow of the Litigation Counsel of America, he has been designated as a Super Lawyer and AV Preeminent® for many years and he was selected to be listed in the Best Attorneys of America.  Mr. Wolf has been certified, by the American Institute of Appellate Practice, as an appellate specialist.

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Ferries or Tunnels 

Historically New Jersey has been linked to Manhattan and Staten Island by ferries.  With the advent of rail and trans-Hudson tunnels that historic ferry network was abandoned.  During the past decades ferry service between Manhattan and New Jersey has been restored.  Today trans-Hudson ferry service and service from Monmouth County, New Jersey have been firmly established.  Those ferry routes have become very successful.Exasperated with delayed trains and time wasted in traffic congestion, commuters have ardently embraced ferries.  Travel by ferry is much more comfortable then the alternatives provided by trains, buses and cars.  More importantly, ferry arrival times are more consistent because those boats are not delayed by the conditions that make road and highway travel so prone to congestion and delays.

For a fraction of the time it will take to plan, design and build a new rail tunnel additional ferry service between New Jersey and Manhattan can be operational.  Very importantly, ferries provide the type of redundancy that is necessary during interruptions in rail and road travel.

A ferry terminal can serve as the center for a transit village. The fact that a ferry terminal can serve as a redevelopment catalyst for underdeveloped or brownfields properties has been acknowledged by several municipalities and regional planning organizations.

William J. Wolf of Bathgate Wegener & Wolf, P.C. has been retained by the Borough of Carteret in Middlesex County to represent it in initiating ferry service between Carteret and Manhattan.  Because Carteret controls a significant portion of its waterfront, it is uniquely situated to provide ferry service as a viable alternative to rail and highway access to Manhattan not only to its residents but to travelers who would otherwise commute by car, train or bus.  It is anticipated that ferry service will act as a catalyst for the redevelopment of the Carteret waterfront.

The Carteret ferry project is only one of several municipal infrastructure and redevelopment projects that Mr. Wolf has been retained to handle.  In addition to the ferry project, Mr. Wolf is currently working on a municipal marina, airport and commercial redevelopment projects in Middlesex County and Monmouth County.

Mr. Wolf is a Senior Fellow of the Litigation Counsel of America, he has been designated as a Super Lawyer and AV Preeminent® for many years and he was selected to be listed in the Best Attorneys of America.  Mr. Wolf has been certified, by the American Institute of Appellate Practice, as an appellate specialist.

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Contract Trumps Patent

​The New Jersey Appellate Division concluded that a settlement agreement and concurrent covenant not to sue precluded a patent owner from asserting additional independent patent infringement claims. (Grayzel v. Boston Scientific Corp, A-0991-14T2 (App. Div. Jan. 11, 2016))  Dr. Joseph Grayzel invented a balloon catheter used prominently in cardiac surgery.   Dr. Grayzel received a patent for his innovation (Patent No. 4,796,629), which he then successfully asserted against Boston Scientific Corp.  In 2003, Dr. Grayzel and Boston Scientific settled their patent litigation, resulting in payment of royalties to Dr. Grayzel. 

 

The settlement, however, was not the end, but merely the end of the beginning of the dispute between patent holder (Dr. Grayzel) and the infringer (Boston Scientific).  Dr. Grayzel obtained a second patent for improvements to his balloon catheter in 2010 (Patent No. 7,662,163).  Boston Scientific also developed a new product in the intervening years, which Dr. Grayzel asserted infringed on his latest patent.  Absent additional facts, Dr. Grayzel would be well within his rights to assert a second patent infringement action against Boston Scientific.  Either a new patent or a new product can lead to new patent infringement action unless there is an agreement otherwise providing.
 
But here there was an “agreement otherwise”.  In the “covenant not to sue” between the patent holder and infringer, Dr. Grayzel gave up any right to sue “for infringement by any Cutting Balloon Product sold by” Boston Scientific.  The agreement went on to define “Cutting Balloon Product” very broadly and did not limit it to products in existence at the time of the agreement.  Nor was the agreement limited to infringement under the first patent.  According to the Appellate Division, Dr. Grayzel signed an open ended covenant not to sue that precluded him from bringing any future patent infringement actions against Boston Scientific.
 
Because Dr. Grayzel contracted away his rights in the 2003 settlement, he was unable to assert his rights when a new infringement began.  Absent his agreement, the patent infringement action could have proceeded.  Boston Scientific saved the expense of a long patent infringement action as well as large potential damages by drafting a smart, forward-thinking settlement agreement. 
 
The Intellectual Property team at Bathgate, Wegener, & Wolf P.C. emphasizes similar long term strategy and thought in the representation of our clients. Contact us today at 732-363-0666
 

Trademarks Over Patents – AstraZeneca Prevails In Trademark Infringement Action For Purple Pill.

​AstraZeneca successfully convinced a court to prohibit the sale of a competitor’s generic form of its very successful heartburn medication, Nexium. Under United States intellectual property law, inventors are granted a monopoly on their new inventions but only for a limited period of time, that is, until the patent expires.  In this case, the patent for Nexium expired in May of 2014.  Therefore, AstraZeneca turned to its other IP rights under trademark law to keep a competitor from distributing a generic version of Nexium using its distinctive purple pill design.A utility patent, such as the patent for the formula of esomeprazole (brand name Nexium) expires 20 years from the date the patent application is filed.  In contrast, a trademark (such as the brand name “Nexium”) lasts as long as the trademark is used in commerce and defended against infringement.

Generic manufacturer, Dr. Reddy’s Laboratories, began producing lower cost generic versions of the esomeprazole (Nexium) drug in September of 2015.  However, Dr. Reddy’s Laboratories generic product looks similar to and uses similar purple coloring as the Nexium brand product.  On November 6, 2015, Delaware Federal District Court Judge Sue L. Robinson found a high degree of similarity between the two products and strong likelihood of confusion of the two products by the consumer.

AstraZeneca had the forethought to establish trademark and brand status of the purple color associated with heartburn medication.  AstraZeneca then registered its trademark with the United States Patent and Trademark Office which awarded AstraZeneca three federal trademark registrations covering the color purple for GI pharmaceuticals and one covering the phrase “THE PURPLE PILL®” for the same goods (“the Purple Marks”).   Judge Robinson found that AstraZeneca had established the Purple Marks branding was “of long duration, of value and strong.”

Dr. Reddy Laboratories has been ordered by Judge Robinson to “immediately stop the sale, delivery, transfer, or other disposition of its generic” medication.  Thus, through use of its trademark rights, AstraZeneca has succeeded in getting a competitor’s infringing products pulled from the market.

​The Intellectual Property team at Bathgate, Wegener, & Wolf P.C. has  experience in obtaining registration of trademarks before the USPTO to protect the interests of our clients. Contact us today at 732-363-0666

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Medical Malpractice Mediation

A business does not simply consist of service providers and producers of products.  Instead, a business is comprised of a myriad of personal relationships involving customers, employers, shareholders and partners.  It is those relationships that generate disputes which frequently can be resolved through mediation rather than civil litigation. A medical practice, although comprised of highly trained professionals who focus on providing unique services, is no different from other businesses.  The stresses and strains associated with providing a high level of patient care can generate disputes with patients, employees, hospitals, suppliers and insurance companies.  Moreover, evolving objectives and aspirations of the members of a medical practice can be the cause of friction that sometimes cannot be resolved internally. Mediation frequently offers a more satisfactory method, rather than civil litigation, for resolving such disputes.  Mediation is less expensive than civil litigation.  More importantly, mediation minimizes the hidden costs that characterize civil litigation.  The time of a busy medical professional is best devoted to serving patients rather than dealing with all of the diversions associated with civil litigation.  Most importantly, mediation can limit the emotional drain and anxiety that is frequently involved with civil litigation.

Because mediation is a private enterprise, disclosure of the sensitive details of the relationships that characterize a medical practice can be avoided.  Due to the flexible nature of mediation sessions, a schedule can be developed that minimizes the impact on a busy medical practice.

If you would like to discuss the benefits of mediation for a dispute arising from a medical practice or any other dispute that might result in civil litigation, please contact William Wolf.  Mr. Wolf is an experienced mediator who has assisted professionals in resolving their disputes; thus, saving the time, money and emotion that is associated with civil litigation. Contact us today at 732-363-0666

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