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13 posts from May 2009

Tuesday, May 19, 2009

NJ Supreme Court Considers Rules Changes

Your friendly blogger spent the morning today at the New Jersey Supreme Court where I testified in favor of changes to the New Jersey Rules of Evidence proposed by NJLRA that would place greater responsibility on the trial courts in New Jersey for weeding out questionable experts. 

Every two years or so the Supreme Court receives a report from the Supreme Court Committee on the Rules of Evidence which recommends to the Court specific changes to the rules that the Court then approves or rejects.  This year NJLRA, the New Jersey Defense Association and several of our members recommended specific changes to the Rules of Evidence that were rejected by the Committee.  It is now up to the New Jersey Supreme Court to decide what to do with the Committee's recommendations and NJLRA's suggested language.

You can read the January 2009 report of the Committee on the Rules of Evidence here.  The relevant sections are on pages 1-3 ("Proposed Amendment to N.J.R.E. 702, Testimony by Experts") and on pages 4-5 ("Amendment to N.J.R.E. 104, Preliminary Questions.")  The Committee rejected our recommendations that would have required an expert witness qualification hearing prior to allowing the witness to testify.  We also proposed that Rule 702 be amended to read as follows (proposed amendment in bold):

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if (1) the data and information is of the type reasonably relied on by experts in the field, (2) if the witness’ testimony is consistent with reliable scientific principles and methodologies, and (3) the witness has applied these principles and methodologies reliably to the facts of the case.

Instead of adopting our proposed language, the committee recommended to the Supreme Court that the rule be amended to read (again, new language in bold):

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, provided that the basis for the basis for the testimony is generally accepted or otherwise shown to be reliable.

We at NJLRA believe that allowing a trial court to determine what is "otherwise reliable" without a required hearing is not a significant improvement of the current rules.

My testimony to the court, in its entirety, is below:

Good morning, your honors.  My name is Marcus Rayner and I am executive director of the New Jersey Lawsuit Reform Alliance (NJLRA). 

I want to first thank you for the opportunity to speak here today.  Although you all may be somewhat familiar with NJLRA from the two amicus briefs we have filed with this Court, I do welcome the opportunity to introduce myself and discuss an issue of great importance to our membership, that of the standard for admitting expert testimony in our courts.

As you may know, NJLRA is a statewide, bipartisan group of over 70 corporations and organizations dedicated to improving the state's civil justice system and advocating for legal reform in the legislature and in the courts.  NJLRA was formed because the business community in New Jersey awoke to the reality that an increasing number of lawsuits were – and are – pouring into our state, imposing enormous burdens on our underfunded courts, threatening our economy and risking jobs. 

As this court observed in Rowe v. Hoffmann-LaRoche, Inc., our state’s judicial system is awash in out-of-state mass tort plaintiffs. In 2008 McCarter & English performed a study for NJLRA that found that 93% of the plaintiffs in New Jersey’s pharmaceutical mass torts come from outside of New Jersey.  One of our founding members, Johnson & Johnson, recently performed a study and found that in 1999 nine percent of the lawsuits filed against their company were filed in NJ state courts.  By 2007 that number had climbed to over 33%.

The reasons for this are many and complex.  But our members believe that one reason is the perception that New Jersey’s standard for the admissibility of expert testimony is extremely low, and that testimony which might be barred as unreliable in federal court and in the majority of state courts can often be admitted in our courts.    As we shared with the Committee on the Rules of Evidence, today the plaintiffs’ bar in New Jersey advertises our evidence standards as a reason to seek recovery in NJ courts over other venues.  In 2004 the law firm Weitz & Luxenberg wrote to the plaintiffs’ bar around the nation and urged them to file Vioxx claims in New Jersey Superior Court, claiming that NJ state court is a far better venue for numerous reasons.  Chief among those reasons was the standards of the admissibility of scientific evidence.

Last year NJLRA, the New Jersey Defense Association and many of our members proposed to the Committee that trial courts be given clear procedural authority to evaluate the admissibility of expert testimony in a predictable and consistent manner in civil litigation. We proposed that N.J.R.E. 702 be amended to include standards consistent with the recent jurisprudence of this Court.  We also proposed that N.J.R.E. 104 be amended to codify this Court’s admonition in Kemp v. State and other cases that where a ruling on admissibility turns on factual issues, the trial court should conduct an evidentiary hearing to determine the reliability of an expert’s testimony. 

We believe that these changes are essential because today expert testimony is a fundamental component of one’s success in the courtroom and if improperly admitted, it poses grave risks to the integrity of the trial process.  In light of this our state’s jurisprudence has long recognized the importance of allowing only reliable expert testimony.  Indeed, New Jersey was one of the first jurisdictions to recognize the increasing importance of expert testimony in modern litigation, one of the first to stress the importance of judicial gate keeping, and one of the first to adopt a more structured multi-factor test for examining the validity of expert testimony.

The language of our evidence rules, however, has lagged behind the case law.  Our rules regarding the admissibility and review of expert testimony have remained unchanged since 1991.  In this same period the Federal Rules of Evidence, the Uniform Rules of Evidence, numerous state evidence rules, and our own jurisprudence have all advanced to reflect the increased importance and use of expert testimony.  We believe the time is right for the incorporation of a meaningful standard of reliability in New Jersey Rule of Evidence 702.

We appreciate that the Committee recognized the need to revise the Rule, and that the Committee noted the importance of (a) explicitly articulating the standard for admissibility of expert testimony, (b) promoting consistency in the admission of expert testimony, and (c) promoting the convenience of busy trial judges and trial lawyers.   However, we believe that the Committee’s proposed amendment fails to achieve these goals.   The Committee also declined to propose an amendment to rule 104 that would have underscored the need for trial judges to hold evidentiary hearings on expert testimony that is challenged on reliability grounds.

We respectfully submit that the Committee’s proposed amendment to rule 702 misses the mark by suggesting that a trial court has unbounded discretion to decide unto itself what is “otherwise” reliable.  Our members believe that New Jersey needs a rule that provides real guidance to the trial courts.  Rather, the committee’s proposed amendment would invite confusion and inconsistency—and bolster the perception in some quarters that New Jersey’s bar to the admission of expert testimony is very low indeed.

At no time in recent history have the citizens and businesses of New Jersey faced the economic and competitive challenges they now confront.  It is imperative that our judicial system not further stymie our state’s businesses and citizens by permitting unreliable opinion testimony soundly rejected elsewhere.

We therefore respectfully request that this Court clarify the rules and procedures governing admissibility of expert testimony and provide the necessary guidance to courts as well as counsel that will establish comprehensive and comprehensible guidelines for resolution of expert testimony issues in the future.

Thursday, May 14, 2009

Michael Kinsley Defends Medical Devices

The Wall Street Journal Health Blog drew our attention to the fact that prominent Washington, DC columnist Michael Kinsley testified before the House Energy and Commerce Committee earlier this week to defend medical device preemption.  According to the WSJ blog:

Kinsley was there to warn that lawsuits would prevent patients from getting access to devices. Identifying himself as a grateful customer of the pharmaceutical industry, he said he had had Parkinsons 15 years. He noted that he was testifying at the request of Medtronic, which approached him last week, though he wasn’t paid by them.

“As you can see for yourselves, my symptoms are pretty mild.” He cited the surgery he had three years ago called Deep Brain Stimulation. “Now I walk around with wires in my head and two pacemaker type batteries in my chest. But thanks to these devices and these pills, I AM walking around,” Kinsley said. His speech was a bit slower than the halcyon CrossFire days on TV when his rapid retorts ripped Republicans and Democrats to shreds.

Kinsley also pointed out that he believes, according to the WSJ, "some risk is necessary is necessary in trying out new devices like the one in his head."

Kinsley previously wrote in the Washington Post about the dangers of the U.S. Supreme Court's decision in Wyeth v. Levine.

Wednesday, May 13, 2009

Republican Gubernatorial Candidates Support Tort Reform

During last night's Republican gubernatorial debate, both GOP candidates for governor of New Jersey indicated their support for tort reform during a discussion of health care reform.  Citing the rising costs of our health care system, Chris Christie and Steve Lonegan both supported medical malpractice reform to help address the rising cost of medical care.

To read more about Chris Christie's proposals for health care policy and tort reform, click here and scroll down.

To read more about Steve Lonegan's thoughts on the State Supreme Court, click here.

Tuesday, May 12, 2009

Will Chris Christie and Steve Lonegan Discuss the Courts?

Tonight is the first debate between Republican gubernatorial candidates Chris Christie and Steve Lonegan.  It will air on NJN at 8:00 pm with analysis at 9:00 pm. 

The next governor of New Jersey will appoint or re-appoint four justices to NJ's seven-member Supreme Court, shaping the court for up to a generation.  NJLRA will be watching tonight to see if the candidates - or the moderators - bring this up for discussion. 

It would be disappointing if our state held a gubernatorial election and didn't have a thoughtful discussion about the Court, its role in our government and how its decisions help or hurt business in NJ. 

NJ Hires More Private Attorneys in 2009

The Courier Post yesterday had an article entitled "Attorney General contracts not publicly bid" which detailed the NJ Attorney General's Office's routine practice of issuing State contracts without a public bidding process.  The list of so-called "waiver contracts" includes communications equipment and voter registration systems, but not the contracts for outside counsel.  According to the article:

Last year, the state spent $26.5 million on outside law firms, a 30 percent increase over 2007. Attorney General Anne Milgram said recently that staff cuts and a hiring freeze caused the increase, and warned that outside counsel costs could jump again this year. The amount includes $4 million shared by several firms for bond counsel work, $2.4 million for employment litigation, and $3 million for leftover costs connected to Gov. Jon S. Corzine's failed asset monetization plan.

We at NJLRA have no reason to suspect that anything untoward is happening with these contracts, as appears the be the case in Pennsylvania, but we think that the public deserves to know exactly how this money is being spent and to whom it is being given.  That insulates our public officials from any suspicion and gives voters piece of mind.

Friday, May 08, 2009

Assemblymen Respond to Bosland vs. Warnock Dodge

Some of you may recall the New Jersey Supreme Court's decision in Bosland v. Warnock Dodge, where the Court found that a consumer has no duty to first request a refund of an alleged overcharge before filing suit under the NJ Consumer Fraud Act (CFA).  NJLRA had filed an amicus brief in this case on behalf of the defendant, Warnock Dodge.

As some readers may know, the CFA in New Jersey requires guilty parties to pay treble damages and attorney's fees.  Of course, innocent parties still must shell out for their own attorneys' fees, even for minor cases. 

In the case of Rhonda Bosland, she alleged that Warnock Dodge overcharged her for Motor Vehicle Commission fees on a car sale by less than $100.  While most of us would simply drag ourselves down to the dealer and ask for our money back, Ms. Bosland filed suit as her first resort.  The Court reasoned that this is appropriate, citing a concern that in large fraud situations a business could refund only the money of the people who speak up and continue to defraud the majority of consumers.

The problem with this is that it leaves innocent retailers who make honest billing mistakes open to abusive lawsuits.  The decision addresses the lowest common denominator, at the expense of the vast majority of businesses in the state.

Not surprisingly some, including NJLRA, disagree with the Court's reasoning.  Assemblymen Michael Patrick Carroll and Rick Merkt also found the Court's decision flawed and have introduced legislation (A3929) that "requires aggrieved persons to request refund prior to commencing suit under consumer fraud law under certain circumstances."

NJLRA will follow this bill closely and keep you posted. 

Thursday, May 07, 2009

Suing for Budget Dollars

On Monday, May 11th the Assembly Judiciary Committee will consider A3731 and S2534, which amend New Jersey's False Claims Act (enacted in 2008) to comply with the Federal Deficit Reduction Act.  S2534 has already passed the Senate with an amendment authored by NJLRA.  More on that later.

The federal False Claims Act (FCA) allows the recovery of certain overpayments for services or products provided by companies under contract to the federal government.  This law is intended to reduce fraudulent billing of government agencies.  It authorizes treble damages, fines of up to $11,000 per violation, and attorney’s fees be charged against those found guilty.  The FCA also encourages private individuals to file suit on behalf of the government – and offers them up to 30 percent of the award or settlement as a reward. These private plaintiffs are formally called qui tam plaintiffs, and these lawsuits are called qui tam lawsuits.  Private plaintiffs also are called “whistleblowers” or relators.

In 2005 Congress offered states a financial incentive to enact their own FCAs.  States already had been able to receive a share of the funds recovered in certain cases filed under the federal FCA.  The Deficit Reduction Act (DRA), gave qualifying states an additional 10 percent of the funds recovered.  To qualify, states must enact FCAs that are “at least as effective” as the federal FCA in encouraging private party qui tam claims.  The state laws also must allow whistleblower employees to bring retaliation claims against their employers. 

By modifying the NJ FCA the Legislature is trying to make NJ eligible for enhanced recovery of funds recovered from Medicaid suit by...encouraging lawsuits.

NJLRA and our members are doubtful that encouraging lawsuits will bring the state additional revenue.  That is why we encouraged the Senate to amend the original bill to require the NJ Attorney General to report annually to the Legislature the number of suits brought under the NJ FCA and the amount of revenue generated.

We suspect that the number of suits will be an upward line and the revenue line will be flat.  We'll keep you posted.

Wednesday, May 06, 2009

Illinois Legislature Hears Tort Reform Proposals

The Madison County Record reports that the Illinois Legislature held a joint hearing of the House and Senate Judiciary Committees yesterday to consider tort reform proposals put forward by that state's business community.  The Record reports:

The topics included three bills proposed by State Sen. Kirk Dillard (R-Hinsdale) that would tighten expert witness standards and venue requirements and improve conditions for jurors.

Dillard's three bills have been stalled at the committee level.

Congratulations to our friends at the Illinois Civil Justice League for this accomplishment. 

If you would like to see a similar hearing in New Jersey, let your legislator know or join NJLRA. 

Hello, CIANJ!

Special thanks to our friends at the Commerce and Industry Association of New Jersey for mentioning Lawsuit Reform Watch on their own blog, NJ Business Matters

Your LRW blogger was a featured guest blogger on NJ Business Matters last year.  You can find those blogs here.

For more information on NJ's economy and the issues important to business we commend to you the CIANJ blog.

Monday, May 04, 2009

"Manufacturing Money"

The Wall Street Journal today profiles the success of John A. Ulizio, CEO of U.S. Silica, in fighting off a series (thousands) of fraudulent lawsuits claiming that the company had caused silicosis.  This is a cautionary tale of the worst case scenario of lawsuit abuse - the systematic falsification of patient records, professional plaintiffs claiming both silicosis and - in other suits - asbestosis, and other outrageous frauds that ultimately led Texas federal Judge Janice Graham Jack to accuse many plaintiffs' doctors and lawyers of "diagnoses that were manufactured for money."

Ulizio and U.S. Silica fought, went public, and exposed this fraud.  Read about this fascinating case here.

When Lawsuits Attack

The U.S. Chamber of Commerce Institute for Legal Reform has chronicled the story of Ron Piazza, whose staff placed a bathroom mirror two inches too high in his family restaurant in Downey, California.  The result was a costly Americans with Disabilities Act (ADA) suit that no business should have to face.

Watch the video:

Friday, May 01, 2009

Public Hiring of Attorneys Heats Up

News out of Pennsylvania that a law firm with close political connections to Governor Ed Rendell is suing Johnson & Johnson subsidiary Janssen Pharmaceuticals on behalf of the Commonwealth is raising eyebrows around the nation and renewing calls for reforms to the way states hire private attorneys via contingency fee arrangements. 

According to the Wall Street Journal the firm, Bailey, Perrin & Bailey, gave over $90,000 to Gov. Rendell's re-election effort in 2006 and now enjoys a lucrative no-bid contract with the Commonwealth of Pennsylvania to sue Janssen over the way it marketed the antipsychotic drug Risperdal.  You can read the WSJ story here

NJLRA and our members beleive that the practice of hiring private attorneys with taxpayer dollars - or with contingency fee arrangements that promise future taxpayer judgment dollars - should be open to the light of day.  To award these contracts in secret and without competetive bidding invites abuse and smacks of corruption.

Fortunately, NJ Governor Jon Corzine's administration has adopted administrative policies that require these contracts to be awarded competetively and under public scrutiny.  NJLRA is working with the Corzine Administration to explore the possibility of codifying these policies in a way that would require future NJ governors to follow Corzine's example. 

But the Pennsylvania experience proves why these policies, know as Private Attorney Retention Sunshine Acts, or PARSA, are needed.


Welcome to Lawsuit Reform Watch, the blog of the New Jersey Lawsuit Reform Alliance (NJLRA).  In the coming months we hope to become a regular stop for you to get news about Trenton, NJLRA, and tort reform in New Jersey and around the nation.  If you care about lawsuit abuse and its affect on New Jersey, you will enjoy reading Lawsuit Reform Watch.

You can reach us via the NJLRA website at or directly, at

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