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11 posts from September 2010

Thursday, September 30, 2010

Bill addresses New Jersey’s Consumer Fraud Act

Assemblyman John McKeon (D-West Orange) introduced legislation to reform New Jersey’s often abused Consumer Fraud Act.   A-3333 calls for the following:

  • A cause of action under the consumer fraud act must be filed by a consumer – not a business.
  •  The plaintiff in a consumer fraud suit must have “relied to his detriment on the use or employment of the unlawful method, act, or practice” (i.e., the consumer suing under the consumer fraud act would have actually have had to been defrauded). 
  • In a blow to the “litigation tourism” industry, the New Jersey Consumer Fraud Act would apply only to transactions which occur in New Jersey.  Sorry, ladies and gents from out-of-state.
  • Finally, when a violation of the Consumer Fraud Act is found to have occurred, the Court has discretion in awarding damages, not to exceed three times the amount of the actual damages the customer sustained.  The awarding of attorneys’ fees would also be limited to one-third of the judgment or $150,000. 

A-3333 addresses many of the concerns NJLRA has voiced about the New Jersey Consumer Fraud Act.  Props to Assemblyman McKeon for his leadership to help stop the abuses of New Jersey’s Consumer Fraud Act. 

Monday, September 27, 2010

Justices to take up issue of DUI – Sunday’s Asbury Park Press

Great coverage of the Toms River dram shop case (you’ll remember, the drunk patron who plowed his motorcycle into a car, and is now suing the bar that served him) by Kathleen Hopkins.

Judging by the comments following the article, it seems like common sense and personal responsibility are winning in the court of public opinion. 

Here are some of my favorite comments so far:

 LawAndOrderDemocrat writes: “…The problem with drunks is that they think they can “get one over” on other people. They are con artists. In the case described in the article, a drunken bum is trying to con an insurance company to pay him for his mistake. We pay insurance rates. The drunken bum is trying to raise our rates...”

 buhbyenj writes: “The only person who enables a drinker is himself. No one tied him to the barstool and forced him to drink all those mixed drinks and shots. He wanted to be a macho biker dude and pound down as many drinks as he could, probably to show his buddies he was a "real man". Attention idiot: real men know when to stop, and it's not the bar's fault.”

DanGross wrote: “I guess the next step will be to have all drivers give their keys to the bartender and then have tp pass a sobriety test before they leave. 
What happened to individual responsibility? If the person buys drinks, has too many, and still decided to drive, why is the business liable? If the same person bought a bottle of liquor, went home, drank the same amount, and then decided to drive, who is responsible then? The "House" ?
This is where the DRUNK needs to pay the penalty and stop trying to blame someone for their bad decisions.

 bluemoon3256 wrote: While this guy might have had too much to drink at Tiffany's, how do we know he didn't drink more somewhere after that? While an establishment should cut someone off if they have had too much, an individual has to be responsible for themselves. This guy should be in jail for a long, long time, never mind trying to figure out who he can sue for his own stupidity.

Sunday, September 26, 2010

A must read-about New Jersey’s home-grown healthcare crisis

Handlin urges action on medical malpractice bill

By Jacqueline Hlavenka / Staff Writer

State losing doctors due to premiums, legal exposure

Middletown, N.J. — In an effort to keep doctors from leaving New Jersey, local officials are supporting an Assembly bill that proposes reforms for medical malpractice actions.

The bill, known as A-1982, was introduced on Feb. 8 and updated on Sept. 14. The proposed legislation would prevent insurance carriers from raising premiums unless a physician is found liable of a medical malpractice claim, as well as other revisions to the laws governing medical malpractice lawsuits.

“Today, if a doctor is sued, his or her insurance premium can go up immediately whether or not he or she is accused of wrongdoing … just being dragged into court can mean your insurance premiums go up,” said Assemblywoman Amy Handlin (R-13th District), a co-sponsor of A- 1982, in an interview. “From the perspective of patients, medical bills end up reflecting the fact that doctors are practicing defensive medicine. They have to order tests and procedures that they may not believe are absolutely necessary for their patients, but their concern is if they don’t order them, they will be dragged into court.”

The bill, discussed at the state’s Assembly Health and Senior Services Committee on June 10, is a proposal to address health care reform on a statewide level, as the ratio of doctors to patients has decreased across New Jersey.

Read entire article in The Independent

Thursday, September 23, 2010

And the big winner is… Alabama!

The New Jersey Law Journal has published a list of its “Top 20 Personal Injury Awards of the Year.”  Unsurprisingly, several of the year’s top awards were medical malpractice lawsuits. 

Leading the pack is McCarrell v. Roche Laboratories, Inc., which consisted of a $25.16 million award to Alabama resident Andrew McCarrell.  His case was heard by Atlantic County Superior Court Judge Carole Higbee.  The 38-year-old plaintiff had taken the popular acne drug Accutane 15 years ago, which he said resulted in the loss of his colon.  The jury decided that the drug’s manufacturer, Roche, did not provide an adequate warning about possible side effects to users’ intestinal lining.  The $25,159,530 was awarded in compensatory damages – considerably higher than the next highest verdict, which was $13 million among three plaintiffs.  The drug is no longer on the market due in large part to its increased production and litigation costs. 

Also nothing to sneeze at was the $18.5 million judgment against Newark Beth Israel Medical Center awarded in April.  In Kim v. Newark Beth Israel Medical Center, the plaintiff sued an obstetrician for malpractice for waiting too long to perform a Caesarean section.  The child, who suffers from cerebral palsy, is now 12.  His mother died of lupus in 2004.  According to the New Jersey Law Journal, the plaintiff (who is the child’s grand-aunt) “benefited from a finding that negligent doctor was an employee of the hospital and covered by its insurance.”  The ruling says that hospitals are liable for a doctor’s malpractice if a patient has reason to belief the doctor’s care was rendered on the hospital’s behalf. 

The doctor was a part-time contract physician, with $1 million in insurance coverage.  The hospital had up to $150 million.  According to the New Jersey Law Journal, the plaintiff (who is the child’s grand-aunt) “benefited from a finding that negligent doctor was an employee of the hospital and covered by its insurance.”  The ruling says that hospitals are liable for a doctor’s malpractice if a patient has reason to belief the doctor’s care was rendered on the hospital’s behalf. 

The defense said that they were reluctant to perform a Caesarean section because the mother, who was a Jehovah’s Witness, had told them before childbirth that her religion prohibited her from receiving blood transfusions. 

Tuesday, September 21, 2010

Weight restrictions may be safer, but the financial consequences for Universal Orlando could be heavy

Can we see the weight-discrimination lawsuits flooding in?

The Star-Ledger’s Editorial board calls our attention to the riding policy on the Harry Potter and the Forbidden Journey ride at Universal Studios in Orlando.  The ride reportedly has a safety-minded per-rider weight limit of approximately 265 lbs., and heavier patrons are being turned away. 

All joking aside though, will we be surprised at the first civil suit filed by an adult seeking damages over his emotional scars?  

Saturday, September 18, 2010

In case you missed it...

Read John O’Brien’s piece on Senator Ray Lesniak’s remarks on tort reform at NJLRA’s Fall Membership Luncheon (“N.J. sen says tort reform will be ‘cornerstone’ of economic boost,” Legal Newsline, 9/16/10).

“A Democratic New Jersey lawmaker on Thursday said tort reform will be key in getting the state’s economy to rebound.  State Sen. Ray Lesniak, the chair of the Economic Growth Committee, made the remark at the New Jersey Lawsuit Reform Alliance’s Fall Membership Luncheon…. [Read More].”

Wednesday, September 15, 2010

Greed of epic proportion: $99,000 in fees on a $650 judgment

We already knew that New Jersey’s Consumer Fraud Act is among the nation’s most exploited (see Denny’s, et. al), but this one manages to stand out. 

According to Court documents, Mary L. Walker purchased a new 2002 Nissan from Route 22 Nissan, Inc.  She realized that the dealership charged her $140 in vehicle registration fees (instead of the $88.50 MVC actually charges) and kept the difference. 

I don’t know whether the plaintiff asked for a refund before filing her lawsuit, or if she went straight to court, like the plaintiff did in the case against Warnock DodgeIn any event, Walker v. Giuffre was heard by Middlesex County Superior Court Judge Alexander Waugh, Jr. Walker said that Route 22 Nissan violated the Consumer Fraud Act (CFA) and the Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA), and was awarded $654.40 for her trouble. 

The plaintiffs’ attorneys requested fees.  But, as the lawyers for Nissan pointed out, the same attorneys are also of counsel in Cerbo v. Ford of Englewood, Inc.  Many if not most of New Jersey’s automotive dealers are named as defendants in this class action suit, filed in Bergen County, for nearly the same violation of the CFA.  They argued that their fees should be covered under the Cerbo lawsuit. 

Instead, Judge Waugh determined that the billing records by plaintiffs’ attorneys in Walker v. Giuffre were “fair and reasonable.”  A $99,252 attorney’s fee plus $5,431 was bestowed upon Nissan. 

Fortunately, an appellate court overturned it.  The panel said that Judge Waugh should not have used his own personal experience to gauge the attorneys’ hourly rate. 

The attorneys now say that they will likely have to request higher fees going forward, according to David Gialanella’s story in the New Jersey Law Journal

“At some point we’ll get paid,” the attorney said.  “It’s just a question of how much.”

Tuesday, September 14, 2010

Tort reform will be a cornerstone to economic growth in New Jersey…

Senator Ray Lesniak (D-Union) spoke at NJLRA’s Fall Membership Luncheon at the Trenton Country Club.  He is the sponsor of S-480, the Appeal Bond Cap

Lesniak.njlra luncheon. 9.2010

Senator Lesniak expressed the Senate Economic Growth Committee’s interest in hearing tort reform proposals.  He is the Economic Growth Committee chair and is also a member of the Senate Judiciary Committee. 

 

Wednesday, September 08, 2010

Reports: Emrise Corp. to leave N.J. for 'business-friendly state'

By week’s end, another New Jersey business will flock to the South in search of greener pastures.  Emrise Corp. will be moving its headquarters from Eatontown, NJ to Durham, North Carolina, writes Joao-Pierre Ruth in NJ Biz.  “We believe it to be a business-friendly state,” said Emrise CEO Carmine T. Oliva

Read more about the planned move on the NJBiz website, or on MarketWatch.com.     

Tuesday, September 07, 2010

A doctor explains why malpractice insurance is necessary, irrespective of his performance

It’s rare that we get to hear a first-hand account of a doctor who was threatened with a medical malpractice suit.  In an op-ed in the Washington Post, however, infectious-disease doctor Manoj Jain tells us his story, and suggests policy changes to address the 83 percent of medical malpractice lawsuits filed against doctors and hospitals which :do not: involve a negligent injury (New England Journal of Medicine, 2004).

Dr. Jain talks about how his own experience influenced the way he approached defensive medicine, and how he interacted with his patients.  As a self-described confident and conscientious practitioner, he observes the following about the federal healthcare legislation:

“The healthcare overall bill was a missed opportunity.  Legislation could have devised a “safe harbor” standard ensuing that a doctor who follows guidelines won’t be sued if a patient is injured.  Also, special medical courts could have been created to determine negligence and compensation.  The new law encourages states to explore these kinds of remedies, but this is unlikely to happen.”

You can read Dr. Jain’s op-ed in the Washington Post here

Friday, September 03, 2010

Wishing everyone a happy and safe Labor Day weekend from NJLRA

And, remember to check those warning labels before eating hot dogs!