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11 posts from May 2010

Friday, May 28, 2010

Around the web, 5.28.2010

Why are so many Jersey moms having C-sections?

By Lorraine Ash and Andrea Clurfeld | Daily Record

May 25, 2010

Nationwide leader: 4 out of every 10 births in New Jersey are C-sections

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Woman files another suit against Oprah

By Kyla Asbury | Legal Newsline

May 25, 2010

Charlestown, W.Va. - A Charleston woman is suing Oprah Winfrey again, this time claiming the talk show host took funds from her Social Security account and deposited them into the U.S. Treasury.

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Chathams schools sue attorney, allege malpractice

By Sarah Schillaci | The Star-Ledger

May 16, 2010

The School District of the Chathams is suing its former attorneys for malpractice, alleging the firm cost the schools in excess of $1.5 million when it mishandled a 2005 dispute with a contractor.

According to a lawsuit filed last week in Superior Court in Morris County, Attorney Nuris E. Portuondo with the Morristown-based law firm of Schwartz, Simon, Edelstein, Celso & Zitomer failed to file documents on time that would have tipped the lawsuit in the district’s favor.

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Frivolous-Suit Sanction Lifted Where No Bad Faith Found

By Charles Toutant | New Jersey Law Journal

May 25, 2010

Filing a frivolous pleading requires not only the act but the intent, a state appeals court said Tuesday in reversing a $6,500 sanction against a lawyer.

The court said the judge who imposed the penalty on Clayton solo Melissa Hoffman failed to find that she acted in bad faith — either in filing a duplicative suit after one was dismissed or in failing to withdraw it when the threat of sanctions was raised.

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Tuesday, May 25, 2010

Legal Malpractice

The project was a nightmare.  The lawyers failed.  And Morris County taxpayers were left with the bill. 

Back in 2001, The School District of the Chathams approved a $5 million plan to make repairs to its middle school.  APS Contractors was awarded the construction contract.  But when poor workmanship and turnover at the company resulted in significant delays, the District withheld a portion of its payment.  And that prompted APS Contractors to take the District to court. 

The district, which consists of the independent municipalities of Chatham Borough and Chatham Township, hired Attorney Nuris Portuondo of the Morristown-based law firm Schwartz, Simon, Edelstein, Celso & Zitomer to fight the suit.  Instead, the Chathams ended up with another botched job. 

Portuondo reportedly missed significant deadlines, which the District says resulted in their loss to APS Contractors as well as the dismissal of their counterclaim for sub-par workmanship.  The district ended up paying $1.6 million in damages to APS, $250,000 in legal fees and $150,000 in post-judgment interest – all of which it wants back from its former attorney’s firm, according to Sarah Schillaci’s report in The Star-Ledger.  And yes, that’s taxpayer money. 

“That money could have been spent on textbooks and teachers and field trips and fun things for kids,” said the District’s business administrator, Ralph Goodwin. “Instead it was spent on lawyers who didn’t do their jobs.”

The District filed their suit against their attorney for malpractice in Morris County Superior Court earlier this month. 

A quarter of a million dollars is a hefty price to pay for lawyers who didn’t do their job.  Although school funding emphasis has been placed on state aid and local property taxes, we need to realize that attorneys’ fees can impact school budgets, too.

Monday, May 24, 2010

Regarding "Best advocacy companies can buy" (Your Views, May 5)

Senator Cardinale had a great letter-to-the-editor in the Record last week:

“I find it interesting, yet unsurprising, that a self-described medical malpractice attorney doesn't want to address initiatives that will help bring much-needed economic growth to New Jersey…

“The letter writer said that "money and power cannot get in the way of justice." He conveniently ignores the facts. Consumers don't have to be defrauded in order to file a lawsuit against our businesses under the current consumer fraud act. Trial lawyers can easily prey on New Jersey's businesses, large and small, because we've made it so easy to cash in on settlements. There's nothing just about multimillion-dollar settlements rivaling the state lottery being paid out at the expense of our state's businesses and the thousands of people they employ across New Jersey.

According to the Healthcare Institute of New Jersey, it takes over $1 billion to develop a new health care treatment. Instead of investing in further research and development, multimillion-dollar awards — like the $25 million-dollar award to an Alabama resident — the trial bar is turning New Jersey's pharmaceutical industry (once called "the nation's medicine chest") — from an asset into a liability.

You can read Senator Cardinale’s (R-39) entire letter-to-the-editor here. 

Friday, May 21, 2010

A-1064, A-1585 Pass the Assembly

On May 20th, the General Assembly passed both A-1064, which eliminates the awarding of attorney’s fees for technical violations of the consumer fraud act, and A-1585, which protects volunteer physicians from civil liability.   A-1585, sponsored by Assemblyman Fred Scalera (D-Essex), passed unanimously (77-0) while A-1064, sponsored by Assemblyman Reed Gusciora (D-Mercer), passed by a vote of 76 - 2. 

Both pieces of legislation await action by the Senate. 

Wednesday, May 19, 2010

Look who's talking now

We all know that New Jerseyans are in the midst of an economic crisis.  In an op-ed in The Record last month, Marcus outlined a few ways in which reforming our civil justice statutes could play an important role in New Jersey’s economic growth, by allowing businesses to allocate fewer resources toward fighting frivolous litigation and toward attracting and retaining new jobs.  A separate but related issue is the chilling impact our civil justice laws and high cost of living are having on New Jersey’s dwindling medical community. 

I guess it’s not surprising that a self-described medical malpractice attorney doesn’t want to talk about either. 

Let’s talk about Accutane

Of course people who are injured by products should be compensated for their injuries and losses.  In the case of Accutane, which had been on the market for two decades and worked successfully on many people, a handful of users experienced moderate side effects typical of most medications.  In one instance though, an Alabama resident said it resulted in the loss of his colon.   NJLRA maintains that a lottery-sized verdict – tens of millions of dollars – paid to one person who experienced negative side effects shortchanges others involved.  Imagine if the plaintiff received fair compensation and the balance of this staggering award were spent on research and development instead.  Its manufacturer and the FDA might be able to determine why this occurred, and improve one of the most effective and widely-used acne medications on the market.  Instead, Roche was forced to discontinue production of Accutane, due in part to the cost of litigation. 

 Let’s talk about jobs

Or, more quantifiably, 140,000 of them.  As of 2009, the biopharmaceutical and medical technology community remained New Jersey’s premier industry.   One of every seven pharmaceutical jobs nationwide is held by a New Jersey resident, according to the Bureau of Labor Statistics.  Indirectly, they bring enormous financial support to the communities in which they operate.  In some communities, like Whitehouse Station, the lion’s share of tax rateables are derived from pharmaceuticals – contributing to the community’s vibrance and alleviating the tax burden on residents while not placing a strain on certain services, like schools. 

The 140,000 New Jersey residents they employ, however, is a smaller number than the previous year. And these are well paying jobs.  The average employee’s salary is over $125,000 annually, according to the HealthCare Institute of New Jersey (HINJ).  These jobs are particularly valuable as other industries struggle.  In a 2009 Star-Ledger story about the economic forces challenging the industry as a whole, New York-based pharmaceutical analyst Les Funtleyder offered a grim perspective.  “The pharmaceutical industry just doesn’t have enough money anymore to support these big companies and all their employees,” he said.  “We’re going to see decreased employment in New Jersey pharma.” 

Millions of dollars were paid in civil damages over the last few years by the same pharmaceutical companies that New Jersey depends on to keep it healthy and lead its economy.  Many of them – 93% of mass tort cases, to be exact – were filed by out-of-state plaintiffs.  Excessive litigation is an antithesis of economic growth.  That’s millions of dollars being taken out of New Jersey’s economy at a time when it is sorely needed.  And when litigation and settlement costs get high, so does the pressure to cease production.   

New Jersey’s pharmaceutical companies are among the most philanthropic businesses in the state.  In 2008, they contributed $221 million to New Jersey causes, ranging from Rutgers University and the United Negro College Fund, Inc. to the New Jersey Performing Arts Center and Teach for America.    

Let’s talk about “justice”      

Lottery awards aren’t a benign punishment inflicted on “big pharma.” Its victims include our friends and neighbors who utilize New Jersey’s biopharmaceutical industry for employment or community support.  And of course, there are those who are truly injured and deserving of compensation.  But all too often, while they may have the financial security bestowed upon them, they rarely have a hand in improving a drug’s safety or effectiveness.  Usually, it’s an asterisk instead – if not the end of the medicine altogether. 

Before lending a sympathetic ear to the trial bar – which has nothing to gain except millions of dollars in attorneys’ fees – remember the words of the HealthCare Institute of New Jersey’s late president, the Honorable Bob Franks.  In his 2009 Annual Report, he said, “Our most important mission is to pursue promising medical breakthroughs and discoveries for the enhancement of world health.”

Now that’s just.

Tuesday, May 18, 2010

Yes, she’s really suing the cell phone company for the breakup of her marriage

Gabriella Nagy was cheating on her husband.   In order to effectively manage both her marriage and affair, she took out an additional cell phone plan under her maiden name for the purpose of concealing the latter. 

As it turns out, she’s not that slick.  Apparently Nagy did not ask for an electronic billing of her affair account.  And her affair cell provider was Rogers Wireless, Inc. – the same provider she and her husband used for their household’s wireless and cable service.  Rogers Wireless took the liberty of consolidating both account invoices on one statement without forewarning.  Nagy’s husband inadvertently opened the lid from the can of worms when he opened their “global billing statement” the next month.  Her secret was out, and he left her.    

Rogers Wireless thought they were doing Nagy a favor.  By consolidating service statements, she would be saving a few extra dollars each month. 

Nagy’s lawyers, however, are actually trying to portray Gabriella Nagy as a sympathetic victim – to the tune of $600,000.  She contends that her husband would never have found out about the affair were it not for the consolidated bill, which showed hours of calls made from Nagy’s affair line to one phone number. 

The suit reads that she “was so distraught that her work performance suffered.”  The plaintiff “wept uncontrollably at her workplace . . . and became incapable of performing her employment duties,” according to the statement.  “I didn’t deserve to lose my life over it,” says Nagy. 

Basically, if not for the company’s itemized billing, she could have been cheating discreetly and without consequence, and her marriage would still be intact.  Her lawsuit, filed in Ontario Superior Court, alleges that Rogers Wireless invaded her privacy and breached their contract, which resulted in the ruination of her life (which is apparently worth $600,000).  I wonder what would happen if the couple remains legally married throughout the litigation and the plaintiff’s case is successful.  Would Nagy’s husband be entitled to some of her ‘earnings’ if they later divorce?

As previously reported by Walter Olson, Rogers Wireless maintains that the company "cannot be held responsible for the condition of the marriage, for the plaintiff's affair and consequential marriage break-up, nor the effects the break-up has had on her. 

Monday, May 17, 2010

A-1064 & A-1585 are up on Thursday

A1064, the bill which seeks to eliminate the awarding of attorneys' fees, filing fees and costs of suit for a technical violation of the Consumer Fraud Act, and A1585, which passed unanimously out of the Assembly Health and Senior Services Committee earlier this month, are on Thursday’s Assembly board list. 

A1585 clarifies immunity from civil liability for volunteers affiliated with Citizen Corps.  It protects retired (but still licensed) doctors who volunteer their services in certain health clinics from abusive lawsuits. 

A1064 is a great first step toward reforming New Jersey’s overexploited Consumer Fraud Act.  The genesis behind this legislation, sponsored by Assemblyman Reed Gusciora (D-Mercer), is a small business owner who was reportedly forced to pay over $30,000 in attorneys’ fees stemming from his failure to note the correct date on a customer’s invoice. 

A1585 will help ensure that retired volunteer doctors – who are likely to be in high demand should New Jersey’s trend of losing doctors continue – aren’t deterred from volunteering their time and expertise because of litigious threats. 

We encourage the Assembly to support each of these measures.  Check back for an update on these bills later in the week!

Thursday, May 13, 2010

Arizona Rejects Junk Science

The American Tort Reform Association reports today that Arizona has fixed its evidentiary standards.  They write:

S.B. 1189 (Barbara Leff-R) was signed by Governor Brewer on May 10, 2010.  This legislation adopts the Daubert standard for admitting expert witness testimony and expert evidence; Arizona Courts currently embrace the less stringent Frye standard.  The Daubert standard requires the courts to consider four factors when examining the merits of expert testimony:  (1) whether the expert’s technique or theory can be tested; (2) whether the theory has been subject to peer review and publication; (3) the known or potential rate of error of the technique or theory; and (4) whether the theory or technique has been generally accepted in the relevant field.  Currently, 37 states have adopted the Daubert standard in part or in whole, and 24 states apply the standard to both civil and criminal cases.  This standard substantially decreases the probability of “junk science” being presented to juries, thus, affecting the outcome of a trial.  It also serves as a filter that screens out ungrounded lawsuits from even reaching trial, which is especially important for manufacturers facing questionable product liability claims and health care providers facing questionable medical malpractice claims.

Thirty-seven states have adopted the more stringent Daubert standard.  Think New Jersey is one of them?  Think again.  NJLRA is asking the NJ Courts to adopt a stronger expert testimony standard.  You can read about our work on the subject here.

Thursday, May 06, 2010

Update: A-1064 passes unanimously out of Assembly Consumer Affairs Committee; Assembly Health and Senior Services committee unanimously moves A-1990

A-1064, sponsored by Assemblyman Reed Gusciora, eliminates award of attorneys' fees, filing fees and costs of suit for technical violation of the consumer fraud act.

A-1990, sponsored by Assemblyman Herb Conaway and Assemblywoman Connie Wagner, grants civil immunity to certain volunteer physicians, nonprofit clinics, and Federally Qualified Health Centers (FQHC). 

NJLRA supports both measures and thanks Assemblyman Gusciora, Assemblyman Conaway, and Assemblywoman Wagner for their sponsorship of their respective bills. 

Wednesday, May 05, 2010

Assembly Health & Senior Services Committee to hear A-1990 Tomorrow – Assembly Consumer Affairs scheduled to hear A-1064

The Assembly Health & Senior Services Committee will convene at 10 am tomorrow in Committee Room 16 of the Statehouse Annex.  Among the bills up for consideration by the Committee is A-1990, sponsored by Chairman Herb Conaway and Assemblywoman Connie Wagner.  It would provide immunity from civil liability to certain retired physicians who volunteer their medical services at nonprofit clinics and Federally Qualified Health Centers (FQHC).  It would also provide immunity to these clinics and FQHCs with respect to the care or treatment provided by the physicians.

The Assembly Consumer Affairs Committee will also be meeting at 10 am tomorrow, in Committee Room 13 of the Statehouse Annex.  They are scheduled to hear A-1064  sponsored by Assemblyman Reed Gusciora.  A-1064 eliminates the awarding of attorneys' fees, filing fees, and costs of suit for technical violation of the consumer fraud act.  NJLRA supports both of these bills. 

Monday, May 03, 2010

Anne M. Patterson Nominated to N.J. Supreme Court

Gov. Chris Christie nominates lawyer Anne M. Patterson to N.J. Supreme Court

TRENTON -- Gov. Chris Christie today plans to nominate attorney Anne M. Patterson to the state Supreme Court, replace Justice John Wallace, lawmakers said.
Read NJ.com's Coverage