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13 posts from March 2010

Monday, March 29, 2010

Medical Malpractice Reform in New Jersey

Did you know that there is a viable Medical Malpractice bill in the New Jersey Legislature?  

A-1982/S-760 would:

  • Establish that a provider had a relationship with a patient filing suit;
  • Prevent insurance carriers from raising malpractice premiums based on a mere claim of medical malpractice, unless the physician is found liable in court;
  • Require that physicians and healthcare professionals providing “expert testimony” be licensed in New Jersey;
  • Narrow the window for filing suit to not more than four years after the date of the alleged incident occurred; and
  • Protect volunteer physicians acting in good faith from civil liability.

New Jersey’s doctors face a multitude of challenges.  Frivolous malpractice litigation doesn’t need to be one of them. 

Let Assemblyman Herb Conaway, Chair of the Assembly Health and Senior Services Committee, know that you support this legislation and ask him to post it in committee. 


Friday, March 26, 2010

N.J. Court's Loose Standard for Corporate Jurisdiction Invites Abuse

Read my Letter to the Editor in this week’s New Jersey Law Journal:

Dear Editor:

The title of your recent March 12 editorial, "Foreign Manufacturers Beware," in which you supported the N.J. Supreme Court's decision in Nicastro v. McIntyre Machinery America, Ltd., is exactly the message that the Court's decision sends to business everywhere. In compromising established due process rights of the defendant to the need for a convenient forum for the plaintiff, the Court has sent business its message: "beware."

Already known as a "judicial hellhole" and home to over a dozen pharmaceutical mass torts comprised of 94 percent foreign (out-of-state) plaintiffs, New Jersey did not need one more reason for business to avoid our shores. In expanding the jurisdiction of our courts through an "entirely new and unbounded test," as Justice Helen Hoens wrote in her dissent, the Court has greatly expanded the power of New Jersey law to be used by plaintiffs around the nation to sue in our courts.

Read entire letter

Wednesday, March 24, 2010

Around the web...

Chamber's latest ranking of state legal systems.  New Jersey ranks what Walter Olson of Point of Law calls a “distinctively unimpressive” 32. 

Parsippany settles suit against emergency responders for $1.3 million

And last but not least:

Wife Wins $9 Million From Husband's Alleged Mistress

Tuesday, March 23, 2010

U.S. Chamber of Commerce survey ranks New Jersey's legal climate

The U.S. Chamber of Commerce Institute for Legal Reform released the results of its 2010 Lawsuit Climate Survey.  It ranked New Jersey's legal climate as the 32nd worst in the United States. 

New Jersey’s road to economic recovery is going to be long and full of twists and turns.  Common-sense legal reform is one way to attract new employers and jobs to our state without spending a single taxpayer dollar.  Today, we continue to rank among states with the worst legal climate as suffering businesses across our state know all too well.  It’s time for state government to encourage economic development and job creation. 

NJLRA looks forward to working with Governor Christie, the Legislature and local officials on legal reforms that move New Jersey forward.”

The study can be found on the Institute for Legal Reform’s website at

http://www.instituteforlegalreform.com/

Thursday, March 18, 2010

Great news for AstraZeneca

The Associated Press reports that a Middlesex County jury sided with the drug maker AstraZeneca in a case in which the plaintiff alleged that his use of the drug Seroquel caused him to become diabetic. 

AstraZenca faces product liability lawsuits involving over 20,000 plaintiff groups, which allege that Seroquel caused them unforeseen harm, despite the drug’s warning label.  The AP also said many cases have been filed in New Jersey, Delaware, and Florida, some of which have been dismissed over questions regarding the qualifications of plaintiffs’ expert witnesses. 

Could Katrina be Our Fault?

A case winding its way through federal court in Mississippi, Comer v. Murphy Oil USA, is attempting to prove that oil and energy and gas companies created a public nuisance by releasing greenhouse gases that, in turn, strengthened Hurricane Katrina and caused billions of dollars worth of damage along the Gulf Coast. 

Quin Hillyer has a piece in the Washington Times today in which he questions the legal theory here.  Hillyer is a global warming skeptic, it would seem, but leave that aside.  Of the legal theory, he writes:

Likewise with this lawsuit: Even the plaintiffs claim no more than that the defendant energy companies contributed to greenhouse gases, which contributed to global warming, which contributed to Katrina's devastation. Six billion other souls on Earth, and billions more now deceased, have added carbon dioxide and other "greenhouse gases" to the atmosphere. The defendants argue, quite reasonably, that it would be ludicrous to ask a jury to trace the causes of the Katrina injuries back to any provable, much less quantifiable, actions by the particular energy companies targeted in this suit.

Believers in global warming should pause before cheering this case on.  What is at stake here is not whether man-made global warming is real, but whether individual companies - or individuals - can be proven guilty of causing specific natural disasters.  If we all agree that the Earth is warming because of man's actions, does it follow that we can then trace responsibility - or a share thereof - to specific companies? 

This case is worth watching.  The U.S. Fifth Circuit Court of Appeals recently agreed to hear the case anew, effectively reversing a district court ruling allowing the case to move forward, which means the appellate division might be rightly skeptical of the litigation. 

Tuesday, March 16, 2010

Georgia, Oh Georgia

The George Supreme Court yesterday upheld two significant tort reform measures designed to prevent frivolous medical malpractice claims in that state.  According to Law.com, the court upheld a "gross negligence" standard for suing emergency room doctors and sustained a fee-shifting rule that is intended to discourage merit-less suits.

The court is expected to rule by the end of the month on the most significant reform passed by the Georgia Legislature, caps on non-economic damages in medical malpractice cases.

Keep your fingers crossed that Georgia's court likes its doctors more than the Illinois court.

Monday, March 15, 2010

Tomorrow is Governor Christie’s First Budget Address

No one denies that digging the state out from under its projected $11 billion deficit is a difficult task.  A key component in New Jersey’s fiscal recovery will be its ability to attract and retain jobs – something S-480, Senator Ray Lesniak’s Appeal Bond Cap bill, helps to advance. 

Imagine being sued for something ridiculous (see “Woman Sues Morristown Hyatt for Serving Booze at a Wedding, for one example) and then losing – and then finding out that you need to post the entire award plus attorneys’ fees for the plaintiff as bond if you want to appeal.  For many mom & pop shops, having to pre-pay in order to appeal could force them out of business if they choose to pursue it. 

New Jersey does cap the amount of an appeal bond at $50 million for one industry: the tobacco companies. 

What is so special about tobacco companies that they need additional protection from financial ruin, where other New Jersey businesses don’t?

Nothing.  The ability seek recourse through the appellate process is a key protection against an unfair civil verdict.  At a time when New Jersey needs to hold onto each business and ratable it has, S-480 can help us do that by eliminating a barrier to appellate review. 

Friday, March 12, 2010

Around the Web

Tort reformer: N.J. SC's jurisdiction decision a dangerous one

John O’Brien · Legal Newsline

March 10, 2010

TRENTON, N.J. (Legal Newsline) - Even if foreign companies don't want to do business in New Jersey, they can still find themselves in state courtrooms as a result of a recent state Supreme Court decision, a legal reform advocate told Legal Newsline. Read it.

Another high-tech company moves out of NJ…

Governor Rendell: High-tech Manufacturer Moving to PA, Creating 53 Jobs

PR Newswire

March 9, 2010

HARRISBURG – With a boost from $2.76 million in state investments, a New Jersey-based high-tech manufacturer plans to open a state-of-the-art facility in Northampton County and create 53 jobs, Governor Edward G. Rendell announced today.  Read it.

W.Va. Senate OKs business court plan

John O’Brien · Legal Newsline

March 10, 2010

CHARLESTON, W.Va. - The West Virginia Senate on Wednesday gave its approval to a bill that would allow the state Supreme Court to create business courts in certain districts.  Read it.

Wednesday, March 10, 2010

Class action status? Check. Now it’s time to find plaintiffs.

You may recall NJLRA’s blog post from last fall regarding the class action lawsuit against Dannon ®.  The French-based parent company, Groupe-Danone, agreed to a $35 million dollar settlement in order to avoid additional litigation and expenses.  They were charged with overstating their products’ effectiveness (apparently, stating that the product “can strengthen the body’s defenses or regulate digestion because of bacteria” is an overstatement, and offering a money-back guarantee for unsatisfied customers isn’t sufficient).  Dannon agreed to change its packaging in addition to the multi-million dollar settlement, but didn’t concede any wrongdoing. 

Over the weekend I came across the following advertisement- for plaintiffs:

Scan0002

Note the June 23rd hearing to determine attorneys’ fees and their gentle reminder that prospective plaintiffs don’t need to attend.  They are seeking $10,000,000, plus fees, from a $35,000,000 settlement.  It’s no wonder that plaintiff payouts are capped at $100 per consumer. 

I eat Dannon yogurt products fairly regularly.  I haven’t been dissatisfied yet.  It’s difficult to assess whether my body’s defenses have been strengthened by the product itself or the placebo effect.  I doubt a $35,000,000 asterisk will make that any clearer.  Nevertheless, I’d still be able to participate in this lawsuit, even though I don’t feel deceived and suffered no adverse affects from using it. 

According to the form below, I would need to prove that I purchased $30 worth of Dannon products – ever.  Perhaps I should save my receipts for all of my purchases, just in case a product is named in a class action suit some day and needs plaintiffs. 

Thursday, March 04, 2010

Lawyers to Business: We're Special

Making more clear than ever where they stand in the debate on civil justice reform, lawsuits and consumer rights, the NJ State Bar Association today supported legislation that would allow delinquent debtors to sue creditors and debt collectors for "unfair" and "unconscionable" debt collection practices - as long as the creditor is not a lawyer.

That's right - lawyers want themselves carved out of the legislation; again.

A-1700, the "New Jersey Fair Debt Collection Practices Act" seeks to mimic federal law in New Jersey and "eliminate abusive practices in the collection of consumer debt."  It is vaguely worded (one can violate it for "unfair debt collection practices," for example) and would allow the awarding of punitive damages if the court deems them warranted.  

The bill is flawed to begin with, but this particular piece of legislation includes creditors, not just debt collectors.  That means that major corporations, small businesses, professionals and contractors can all be sued and fined under this bill for "unfair" debt collections.  Think about that. Businesses risk a lawsuit by collecting monies they're owed, but creditors with a law degree would be exempt.  Where's the fairness here?

The bill is scary enough that lawyers want a carve-out for themselves, but not for anyone else.

If you think this bill won't create lawsuit abuse, think first about why lawyers would support it without them in it...and then read this article in the Dallas Observer about debtors who game the system to sue debt collectors rather than repay their debts.

But don't worry, the lawyers will get their money. 

Wednesday, March 03, 2010

Important Legislation before Assembly Consumer Affairs Committee

The Assembly Consumer Affairs Committee tomorrow will consider an important piece of legislation which will help protect business owners from abuses of the Consumer Fraud Act.  A-1064, which was introduced by Assemblyman Reed Gusciora (D-Mercer), seeks to eliminate the award of attorneys’ fees, filing fees, and costs of suit for technical violation of the consumer fraud act. 

New Jersey's consumer fraud act is one of the most abused in the nation.  This bill is an important first step toward strengthening the CFA to protect consumers from fraud while allowing honest businesses to serve consumers free of the threat of frivolous lawsuits

Right now, New Jersey businesses can be sued under the consumer fraud act for honest mistakes which have no impact on the quality of goods or services produced.  With this legislation, the Legislature would be sending a strong message: New Jersey businesses and consumers should not be expected to pick up the tab for frivolous litigation.  The weaknesses of New Jersey’s consumer fraud act should not be borne on the backs of our hardworking men and women business owners. 

NJLRA has been advocating for changes to New Jersey’s Consumer Fraud Act and applauds Assemblyman Gusciora for introducing A-1064.  We look forward to this legislation receiving a favorable vote in committee.

Monday, March 01, 2010

I’ll take a lawsuit with that

A potential class action lawsuit against the Blimpie sandwich chain is looming in Madison County, Illinois, a fellow Judicial Hellhole.  According to two customers, the sandwich makers did not put enough meat on their “Super Stacked” subs.   Their lawsuit alleges that Blimpie’s claim of “double portions of meat” on these premium-priced subs is false, even though they concede that there is no “regular” sub on Blimpie’s menu for comparison.  The court must now decide if this amounts to statutory fraud. 

The classic image of a dissatisfied customer seems to be becoming a thing of the past, as more dissatisfied customers opt for multi-million dollar litigation over refunds (See Bosland vs. Warnock Dodge).  For its part, Blimpie said on its website that it would have been happy to handle the customers’ complaints at the store level. 

According to Keegan Hamilton’s report in the RiverFront Times News Blog, the plaintiffs’ lawsuit was filed by the powerful LakinCapin law firm in Wood River, Illinois.  The attorneys hope to make it class action suit, which would allow anyone in Illinois who believes that Blimpie short changed their sandwich meat to receive “compensation for costs and attorney fees and other relief deemed “just and appropriate.” 

TheTelegraph.com offers the following insight about the case on their website:

“Courts today are too often becoming the first bastion, not the last, for resolving consumer complaints.  We can only imagine what’s next.  Will it be Maxwell House because one cup of coffee wasn’t good to the last drop?  Or Burger King, because maybe somebody really can hold a Whopper with only one hand?”

Blimpie_sliders

Imagine how much meat the plaintiffs will be able to buy if they are successful.