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11 posts from August 2010

Tuesday, August 31, 2010

Legal Services [not] worth $77,265.00 per month

Actually, three weeks, to be exact.

Two reports in the New Jersey Law Journal indicate that the plaintiffs in a lawsuit against Prudential Life Insurance Co. preferred to oust highly-paid attorney William Hunt, who was appointed as Master.  Instead, Hunt offered to lower his hourly fees from $450 to $350.

The trouble began when the plaintiffs’ attorney, Angela Roper, received a $77,265 invoice for Hunt’s first three weeks on the job.  The New Jersey Law Journal writes that Roper now argues that the master's appointment is not authorized by R. 4:41-1 because it was done without the parties' consent and in the absence of "extraordinary circumstances."  After receiving the first invoice, Roper's clients made a supplemental filing arguing that the cost would “unjustly burden” them.

Hunt was appointed Master by Bergen County Superior Court Judge Brian Martinotti due to the high volume of work needed in this case.  Two hundred thirty-seven suits were centralized for case management before Judge Martinoitti.  All were former employees of Prudential who claim that they were pressured to settle their claims of discrimination through alternative dispute resolution, rather than court.

Hunt’s tab is being picked up by Prudential, the two law firms representing the two main groups of plaintiffs, and a third-party defendant, all paying 25 percent.  The retroactive fee reduction saves them a collective $17,000.

Read Mary Pat Gallagher’s report here.

Friday, August 27, 2010

Legislative Calendar is up...

I posted the Fall 2010 committee dates for each committees of particular interest to NJLRA (Judiciary, Health and Senior Services, AFI, SEG, etc.), along with the anticipated voting session dates.  Check our events page on Google Calendar for changes to the schedule.  Legislative Digest also has the complete committee legislative calendar through the State-of-the-State Address.

__________

Monday, September 13

10:00am
Assembly Financial Institutions Committee
10:00am
Assembly Health and Senior Services Committee
2:00pm
Senate Health and Senior Services Committee
Tuesday, September 14
12:00pm
Annual Membership Luncheon
Thursday, September 16
10:00am
Assembly Judiciary Commitee
Monday, September 20
Assembly Committees at the Call of the Speaker
2:00pm
Senate Voting Session
Thursday, September 23
10:00am
Senate Economic Growth Committee
1:00pm
Thursday, September 30
1:00pm
Assembly Voting Session
2:00pm
Senate Voting Session
Thursday, October 7
10:00am
Assembly Health and Senior Services
1:00pm
Senate Health and Senior Services
Thursday, October 14
10:00am
Assembly Judiciary Committee
10:00am
Senate Economic Growth Committee
1:00pm
Senate Judiciary Committee
Monday, October 18
Assembly Committees at the Call of the Speaker
2:00pm
Senate Voting Session
Monday, October 25
1:00pm
Assembly Voting Session
Tuesday, November 2
Election Day
Monday, November 8
10:00am
Assembly Health and Senior Services
1:00pm
Senate Health and Senior Services
Monday, November 15
10:00am
Senate Economic Growth Committee
1:00pm
Senate Judiciary Committee
Monday, November 22
1:00pm
Assembly Voting Session
1:00pm
Senate Voting Session
Monday, December 6, 2010
1:00pm
Senate Health and Senior Services Committee
Thursday, December 9, 2010
10:00am
Senate Economic Growth Committee
1:00pm
Senate Judiciary Committee
Monday, December 13, 2010
Senate Committees at the Call of the Senate President
10:00am
Assembly Committees at the Call of the Speaker
1:00pm
Assembly Voting Session
Thursday, December 16, 2010
Senate Committees at the Call of the President
Monday, December 20, 2010
2:00pm
Senate Voting Session
Tuesday, January 11, 2011
State-of-the-State Address

Thursday, August 26, 2010

Around the web, 8.26.10

Addicted Gamer Sues Game-Maker, Says He is ‘Unable to Function’
A federal judge is allowing a negligence lawsuit to proceed against the publisher of the online virtual-world game, Lineage II, amid allegations that a Hawaii man became so addicted he is “unable to function independently in usual daily activities such as getting up, getting dressed, bathing or communicating with family and friends.”

Craig Smallwood, the plaintiff, claims NCsoft of South Korea should pay unspecified monetary damages because of the addictive nature of the game. Smallwood claims to have played Lineage II for 20,000 hours between 2004 and 2009. Among other things, he alleges he would not have begun playing if he was aware “that he would become addicted to the game.”  (David Kravets/ Wired, 8/19/10)


Third Circuit won't make Del. SC's mind up for it

Philadelphia – A federal appeals court has decided not to predict whether the Delaware Supreme Court would recognize medical monitoring claims as valid, overturning a lower court decision that said it would.
The U.S. Court of Appeals for the Third Circuit said such a prediction "requires several 'leaps' from the current state of law" and also ruled that summary judgment was properly granted to A.I. DuPont Hospital for Children in Wilmington.
Medical monitoring requires defendants to pay medical costs even in the absence of a current injury. Cardiologists at the hospital implanted a covered stent that was not improved by the Food and Drug Administration while trying to repair a congenital heart defect. (John O’Brien/ Legal Newsline, 8/24/10)

Tuesday, August 24, 2010

Does an arbitration agreement matter in medical malpractice claims? It depends.

Dr. Carlos Fernandez anticipates that some patients will be unhappy.  Before performing an ultrasound on Monica Moore in June 2008, the Ocean County doctor asked Moore, then 44, to sign an arbitration agreement.  He felt that her age could adversely affect the fetus she was carrying.  Moore was also under the care of an obstetrician, Dr. Lisa Vernon, at that time.

Moore’s baby was born with Down syndrome.  She believes that if the doctors informed her about a diagnostic test called chorionic villus sampling, the fetus’s Down syndrome would have been detected.  And in light of this information, she and her husband could have considered all of their options.

Moore filed a wrongful-birth suit in Ocean County Superior Court against the doctors.  The trial judge initially dismissed the case against Dr. Fernandez, because of the arbitration agreement Moore signed.  An appellate panel, however, said that the agreement was voided for several reasons, including the fact that Moore’s husband did not give written consent to waive his right to a jury trial.

The trial bar hoped that the appellate court would find all binding arbitration agreements, like the one Dr. Fernandez requested his patient sign, to be unlawful.  Instead, the court rejected a per se rule, decided that their enforceability should be decided on a case-by-case basis.

The New Jersey Law Journal reports that Dr. Fernandez’s attorney, however, says that the decision in Moore v. Woman to Woman Obstetrics & Gynecology, A-953-09, may conflict with another appellate decision in which arbitration was upheld.    The New Jersey Supreme Court may be asked to render the next decision.

Wednesday, August 18, 2010

Most doctors in America get sued, but most suits aren’t suited for trial

As the nation- and especially New Jersey- seek to lower healthcare costs without diminishing access to care, here is one more study showing why we simply can’t continue to ignore the medical malpractice crisis. 

The American Medical Association (AMA) recently released a study which showed that most doctors will have been sued at least once by the end of their career.  And even in the most obvious instances of lawsuit abuse, the cost is high.  The average nationwide cost for defense against a suit which is dropped is over $22,000.  Going to trial can cost well over $100,000, arguably trending upward for physicians in the Northeast.  And of course, this doesn’t account for the increase in insurance premiums or time away from a doctor’s practice.  Patients feel these affects in the form of fewer doctors from which to access care and longer appointment wait times.  In New Jersey, patients have the added consequence of the “medical brain drain,” in which UMDNJ graduates depart from the Garden State in search of sounder climates in which to practice medicine. 

The study found that general surgeons and OBGYNs are the most likely of all physicians to be sued, compounding efforts to recruit in those areas.  In total, 42.2% of all physicians surveyed had been sued, and of those aged 55 and over, 61% had been sued. 

And it’s not doctor performance which created this situation: 95 percent of malpractice lawsuits never even make it to trial.  Of the five percent which do, the doctors win 90 percent of the time, according to the AMA.  Physicians who have an “ownership interest” in a practice (and conceivably, greater assets) are more likely to be sued than physicians without an ownership interest in their practice.  It’s hard to deny that this correlation appears strategic – not coincidental. 

Friday, August 13, 2010

Remember Accutane?

New Jersey’s weak evidentiary standards make it difficult for pharmaceuticals to defend themselves from litigation.  Fortunately, one company might be getting a second wind thanks to an appellate court. 

In previous LRW posts, we told readers about how excessive litigation helped drive Accutane off the market.  It emerged in 1982 and was once one of the company’s signatory drugs, having been prescribed to over 13 million people with severe acne.  Critics say that it is linked to Irritable Bowel Syndrome, birth defects, and depression in a small number of patients (although, I struggle to think of any contemporary prescription drugs which do not list these aliments as possible side effects…).  Nevertheless, Accutane’s reign officially ended in 2009, when multi-million dollar judgments and legal fees made its production unsustainable.  In one such instance, as you may recall, an Alabama resident received $25.1 million from the drug’s Swiss manufacturer, Roche, which has a sizeable office in Nutley. 

Fortunately, Bloomberg News reports that Roche has won the reversal of a $10.5 million Accutane award on appeal.  The reason? The judge – Carol Higbee – didn’t let the defense present statistics on the total number of Accutane users until the trial’s end.  The appellate court says that the judge’s decision improperly barred Roche from using evidence about the medication’s use. 

Bloomberg reports that in the 89-page decision, the appellate court said “Roche was unduly impeded at this trial from adducing and advocating numerical proofs that could have potentially and reasonably led a jury to reach a different verdict.”

The case, Kendall v. Hoffmann LaRoche, Inc., was filed by Utah resident Kamie Kendall in Atlantic County Superior Court, one of the nation’s so-called “Judicial Hellholes.”  A jury originally found that Roche’s warnings about possible bowel disruptions were not adequate.  The appellate court, however, said that the trial didn’t provide “a full and fair opportunity for Roche to present and advocate the relevant numbers evidence.” 

In light of the decision, Atlantic County’s Judge Higbee has delayed the jury selection in another Accutane lawsuit she was scheduled to hear.  This case, filed by James Marshall, will be calling Martin Sheen and others to testify that Accutane damaged his colon, whereby killing his acting career.  Entertainment sources say that James Marshall thought he could have been “the next James Dean.”

Wednesday, August 11, 2010

Judge cuts down inflated settlement in Volkswagen case

New Jersey’s weak Consumer Fraud Act almost helped make attorneys $9.4 million richer.  Thanks to U.S. Magistrate Judge Patty Shwartz’s diligence and attention to detail, however, consumers were spared having to absorb this expense.

Here are the facts.   As reported in the New Jersey Law Journal, some Volkswagen owners complained that their 1997 – 2005 Passat, Jetta, New Beetle, Golf, and Touareg models leaked in heavy rain.  In some cases it damaged the car’s interior, or its contents, varying in severity.  A nationwide class action lawsuit was filed in Newark, under New Jersey’s Consumer Fraud Act.  They were also accused of breaching express and implied warranty and the “duty of good faith and fair dealing.” 

In Del Guercio v. Volkswagen of America Inc., two firms represented the 5.5 million class members, representing 3 million vehicles.  The lawyers estimated a settlement of $142 million earlier this summer, and sought $22.5 million (15.8 percent) for themselves in fees.  Eventually, both sides agreed to $90 million instead. 

And then the judge scratched beneath the surface.  The plaintiffs’ expert estimate called for $28 million in “preventative maintenance,” including the cost of future labor, parts, towing, and loaner cars.  But the judge reduced this amount by more than half – to $13.1 million, because towing and loaner cars are already covered by the dealer, making the inclusion of these fees in the settlement redundant and without benefit to the consumer.  Further, the Court would be double counting if it agreed to damages for both avoiding future repairs and the declining car value if it has water damage. 

“While the two components address different consequences of the avoided water damage,” said Judge Shwartz, “one of the two will never come about because the maintenance avoids it.” 

Shwartz also recognized that it was improbable that 100 percent of eligible class members would claim their award, and further reduced the settlement.  $69 million, with thirteen percent of it reaching the trial lawyers instead of fifteen percent, was what the Judge ultimately decided was appropriate.  In what could be a warning to other litigators, she noted that the two years spent on recovery and three year period from the time the complaints were filed was untimely, and that the settlement didn’t “represent a particularly speedy resolution.” 

The New Jersey Law Journal reports that the Court received over 200 objections to the settlement.  Many class members felt that that the settlement did not adequately compensate them, and that the attorney fees were still too high. 

In the end, Volkswagen owners will probably have to pay some of their repair costs out-of-pocket with cash.  But, thanks to the Judge, the trial bar will have less cash to line their pockets with, too. 

Monday, August 09, 2010

NJ Spotlight: Medical Malpractice Reform Advocates Urge Action Now

Following last week’s New Jersey Supreme Court decision gutting the affidavit of merit statute, Linda Moss wrote about the issue in NJ Spotlight.  Senator Loretta Weinberg (D-Bergen) and Assemblywoman Amy Handlin (R-Monmouth) weighed in, expressing support for S-760/A-1982.  The legislation calls for much-needed changes to New Jersey’s medical malpractice statutes. 

An excerpt of the story is below.  You can read the full text of her story here.  You can also view sponsors of S-760/A-1982, which includes growing bipartisan support. 

“With New Jersey facing a worsening shortage of physicians, key medical and business groups say there’s only one way to stem the losses: Take action now to reform the medical malpractice laws that are costing the state its doctors. And policymakers are getting the message, crafting legislation aimed at addressing the issue.

Sunday, August 08, 2010

August 8th round up

No “California Girls  vs. California Gurls” lawsuit

MTV is reporting that, despite the New York Post’s suggestion, The Beach Boys will not be suing singer Katy Perry over her song “California Gurls,” which, they warned, is reminiscent of their 1965 song “California Girls.” 

(I wonder when an attorney will flirt with a similar “warning” on behalf of Ace of Base to Lady Gaga – i.e. “Don’t Turn Around” vs. Alejandro”). 

And now, of ACTUAL importance...

U.S Magistrate Judge Patty Shwartz uses thoughtful rationale in cutting attorneys’ fees for a multi-million dollar class action verdict against Volkswagen.  Check back here next week for more in-depth analysis. 

Thursday, August 05, 2010

Now it’s the iPad’s turn…

You knew this was going to happen eventually. You might remember that a lawsuit was filed against McDonald’s last month, because the toys in Happy Meals target children, (which in turn forced their parents to buy them high-calorie Happy Meals, which, in turn, made such children fat).   A Canadian cell phone carrier, Rogers Wireless, Inc., was sued when a cheating spouse was outed after her husband saw a combined wireless statement.  Starbucks was sued, again, this time because a customer’s drink wasn’t put in a sleeve for her, which forced her to drop it on her infant.  I could go on. 

Now, the iPad.  Three users say that if you leave the iPad exposed in direct sunlight long enough beyond the recommended 95 degree maximum, it will overheat and shut down.  It’s a safety measure typical of most electronics, like iPod and iPhone, so you don’t damage your device.

However, this means it’s not truly an e-reader, these users say.  Contrary to what Apple says about the e-reader being “just like” a book, a real book wouldn’t overheat. 

As a result, they are seeking class-action status in federal court in California.   According to CNN, the attorneys are “asking for an injunction against Apple's "false" promises as well as "real" and punitive damages. 

Of all the silly class action certifications out there, this one would be particularly troubling.  I LIKE that electronics simply shut down when they overheat, especially when permanent damage is the alternative.  I think that anyone who’s melted a cassette recorder or walkman back in the day might understand where I’m coming from. 

Nevertheless, Apple will have to defend itself against charges of: fraud; negligent misrepresentation; deceptive advertising; unfair business practices; breach of express or implied warranty; intentional misrepresentation; and unjust enrichment. 

Sunday, August 01, 2010

What would you do if a child on your flight simply would not stop crying?

One passenger, reportedly so furious that she “would have dragged that kid out of his mother's arms and stomped him to death,” had her eardrum not begun bleeding, decided to sue.  The 67-year-old American tourist, en route from Australia to New Zealand via Qantas Airlines, was taken to the hospital.  She was wearing hearing aids, which may have escalated the situation. 

But the tourist, Jean Barnard, didn’t sue the kid’s parents.  She sued the airline instead.  Qantas settled out-of-court with Barnard for an undisclosed award. 

If a parent can’t prevent a child from screaming, how could one expect an airline to do so?  And if the airline is going to be handed a bill for one’s bills and inconvenience, what incentive do they have to do so?  This wasn’t about holding someone responsible – it was about holding the entity with the deepest pockets responsible.