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12 posts from January 2011

Monday, January 31, 2011

Good reading: Tort reformers have momentum in NJ

Sherman “Tiger” Joyce, president of the American Tort Reform Association (ATRA), had the following to say about New Jersey’s prospects for civil justice reform in The Metropolitan Corporate Council publication:

“Of course, the litigation industry also remains strong throughout New Jersey, home to once-and-future judicial hellholes, and ATRA expects it to again push an expansion of wrongful death liability while actively opposing consumer fraud reform. But tort reformers, backed by Governor Chris Christie, have some momentum. They support three affirmative reform bills already filed during the current legislative session. One seeks to limit appeal bonds to the total value of the monetary judgment or $50 million, whichever is less. Another would revise the individual's cause of action under the Consumer Fraud Act and make other revisions regarding applicability (see trial lawyers' opposition noted earlier). The third pertains to liability, standards of care and insurance coverage for medical malpractice actions.”

Wednesday, January 26, 2011

President Obama: I’m willing to look at medical malpractice reform to rein in frivolous lawsuits

President Obama’s State of the Union address touched on two areas of interest to NJLRA supporters: medical malpractice reform and a flaw in the healthcare reform bill which requires all businesses to track expenditures to all vendors

Frivolous medical malpractice lawsuits affect the ever-increasing insurance premiums each doctor must carry, and these costs can vary significantly by specialty and by state.  In New Jersey, the medical malpractice crisis has lead to a homegrown healthcare crisis of our own, in which we are seeing fewer doctors willing to practice specialized medicine within the jurisdictions of the Garden State. 

Beginning January 1, 2012, all businesses would need to track expenditures over $600 with other vendors, and prepare a Form 1099.  This requires tracking down the taxpayer ID for each vendor as well.  This would be an especially difficult for small businesses, which lack the accounting resources of larger companies.  Fortunately, President Obama acknowledged the onerous burden this portion of the healthcare bill would place on economic growth. 

Excerpts from the President’s speech regarding medical malpractice and small business bookkeeping under the new healthcare law are quoted below:

Medical malpractice

“This means further reducing health care costs, including programs like Medicare and Medicaid, which are the single biggest contributor to our long-term deficit. Health insurance reform will slow these rising costs, which is part of why nonpartisan economists have said that repealing the health care law would add a quarter of a trillion dollars to our deficit. Still, I'm willing to look at other ideas to bring down costs, including one that Republicans suggested last year: medical malpractice reform to rein in frivolous lawsuits.

Small business bookkeeping under the new healthcare law

“Now, I've heard rumors that a few of you have some concerns about the new health care law. So let me be the first to say that anything can be improved. If you have ideas about how to improve this law by making care better or more affordable, I am eager to work with you. We can start right now by correcting a flaw in the legislation that has placed an unnecessary bookkeeping burden on small businesses.

You can read the entire speech here, via ABC’s website

Friday, January 21, 2011

You can’t make this stuff up: Do not drive or operate machinery [or polish guns]

A New Jersey man who saw his doctor about depression and insomnia began taking Zoloft and Ambien.  He then decided to polish his .38 caliber Colt revolver. 

The rest almost seems incredulous.    Robert Buck reportedly fell asleep while ‘inspecting’ his gun.  It lay in his right hand until he thought he heard the phone ring, and reached over with his left hand to get it.  The gun went off, and Buck took a bullet to his mouth.  He ended up with multiple skull fractures and blindness in his left eye. 

Robert Buck is now suing his doctor for medical malpractice, saying that prescribing both an anti-depressant and a sleep aid together deviated from accepted standards of medical care.  He has a separate product liability claim pending against the drug manufacturers. 

The issue now before the New Jersey Supreme Court is who may be considered an expert under the Affidavit of Merit Statute, N.J.S.A. 2A:53A-41.  Buck’s doctor specialized in family medicine but is board certified in emergency medicine.  His attorney obtained an affidavit from an expert who was board certified in emergency medicine, and also obtained an affidavit of merit from a psychiatrist.  Ocean County Superior Court Judge Steven Nemeth dismissed the suit because the attorney did not obtain an affidavit from a family-medicine practitioner, according to the New Jersey Law Journal.  An appellate court agreed.  

For its part, I’m told that the Ambien’s current labeling reads: “Warning: May Cause Drowsiness.”  Several internet searches reveal that it also cautions patients not to do “anything that requires you to be alert or awake.”  It also says not to “drive, operate machinery, or perform other hazardous activities after taking Ambien.” 

Wednesday, January 19, 2011

Controlling Property Taxes Through Legal Reform

Your friendly blogger spent Friday morning participating in a panel discussion hosted by the Insurance Council of New Jersey.  Our role as a panel was to explain the relationship between the courts and ever-increasing municipal insurance premiums.   Every taxpayer I know thinks their property taxes are too high- but we seldom explore how our state’s civil justice system played a role in worsening the crisis. 

What I learned there was alarming. 

A 10-year claims study by New Jersey’s largest public sector risk pool showed that the cost of lawsuits to property taxpayers is soaring, and in fact has nearly doubled in the past five years, due to a legal climate that encourages litigation even for cases that have little merit.

David Grubb, executive director of the New Jersey Municipal Excess Liability Joint Insurance Fund (MEL), said the total cost of claims against New Jersey government entities runs between $800 million and $1 billion a year, including liability, workers compensation and property losses.

The MEL study, which included data from 365 municipalities, found that the cost of liability claims per 100 residents rose 104 percent from $587 to $1,200 between 2000 and 2010, including a jump of 87 percent just since 2005.

 The cost of employment practices liability increased from $41 per full time employee in 2000 to $485 in 2010. These figures do not include the cost of claims not covered by an insurance program.

 Meanwhile, tort liability stood at $475 per 100 residents in 2000 and jumped 66 percent to $791 by 2010.

It isn't just small businesses and large companies that are suffering under New Jersey's legal system, it's our towns, school districts and counties.  As property taxpayers and consumers, we are hit twice to pay the lawyers.

It's interesting to see how alarming the data is.  More forums are planned around the state and we will post them as we learn of them.

Monday, January 17, 2011

New Jersey needs its Medicine Chest

As 2010 came to a close, the Healthcare Institute of New Jersey released its 2010 Economic Report.  It showed that New Jersey’s pharmaceutical industry is both threatened (New Jersey’s pharma jobs declined by 7.6 percent over the previous year),  and also more critical to our state’s economy than ever, as the industry’s total economic impact is at an all time high of $29.25 billion.  This news came the same week as NJBIZ reported that whistleblower lawsuits are rapidly becoming a favorite target for trial lawyers, who have set their sights on the pharmaceutical industry

David S. Barmak, an attorney who was quoted in the NJBIZ article, described the increasing number of whistleblower lawsuits as “a huge assault on the pharmaceutical industry.”  Another attorney quoted notes that as people find out about the “potential rewards,” more whistleblower suits pop up. 

Whistleblower lawsuits help government entities recoup overbillings and mistaken billings from a private company when used as intended.  But with individuals realizing they may cash in on a share of recovered funds, and trial lawyers all too eager to assist, New Jersey’s premier industry is an attractive target – and government entities, the article notes, can be difficult negotiators.  This increases pressure to settle, as Dey Inc. did recently.  Its $280 million settlement was one of at least four made by pharmaceutical companies in the month of December alone.  Abbott Laboratories, Inc., also coughed up a $421.1 million agreement. 

New Jersey earned its reputation as the nation’s “medicine chest” many years ago.  If you live here, chances are good that you know someone who is employed directly by a pharmaceutical company or indirectly through service contracts.  The 2010 Economic Report shows that especially as unemployment persists, New Jersey’s pharmaceutical companies are more important to our tax base than ever, and it’s crucial that we understand what is driving them out.    Let’s just say that the trial lawyers’ newest hobby doesn’t help. 

Thursday, January 13, 2011

Salty Claim Against Denny’s Doesn’t Float in Court

As you may remember, New Jersey’s Consumer “Fraud” Act is so broadly constructed that a Tinton Falls resident was able to sue the Denny’s restaurant chain last year, claiming that he (and the public at large) had no idea his favorite “Moons over my hammy” dish was “loaded up with the salt.”  Plaintiff Nick DeBenedetto argued that it amounted to consumer fraud (in the State of New Jersey, at least).  He was being treated for hypertension, after all.  An advocacy group and local attorneys adopted the cause on behalf of Denny’s patrons, unsuspecting or not, in a class action lawsuit.    

Fortunately, the lawsuit was dismissed.  And a state court of appeals upheld this decision, according to a report by Ken Serrano in The Home News Tribune.

“Neither plaintiff nor the punitive class he claimed to represent asserted any physical injury or harm as a result of defendant’s failure to disclose the sodium content,” the court said in its decision.  DeBenedetto will not be permitted to sue under the New Jersey Consumer Fraud Act, but he may be able to pursue an action under the Products Liability Act. 

Commentary suggested that the plaintiff reimburse Denny’s for the costs it incurred.  Unfortunately, history suggests that honest consumers are usually the ones who end up bearing these costs.  Real consumer protection doesn’t mean more ways to sue – it means keeping junk litigation like this out of the civil justice system. 

Monday, January 10, 2011

Right after swearing in, Wisconsin Governor starts tackling tort reform

As Governor Christie prepares for his State-of-the-State address, most of us in the Garden State probably didn’t take much note of the gubernatorial changing-of-hands in Wisconsin earlier this month. 

Newly minted Governor John Walker convened a Special Legislative Session to introduce his Civil Justice Reform Package.  It’s a significant part of his “Wisconsin is open for businesses” campaign.

Expert testimony, non-economic damage award limits, and product-liability are key reforms included in this proposal.  You can learn more about Governor Walker’s pro-civil justice agenda here

SR – 100 – Non-binding resolution encouraging Justice Rivera-Soto to resign – will be heard in Senate Judiciary this morning

SR – 100 – Non-binding resolution encouraging Justice Rivera-Soto to resign – is being heard in Senate Judiciary this morning.

The measure is sponsored by Senators Gill, Lesniak, and Scutari.  The Assembly could also impeach the embattled Justice, who has announced his decision not to seek reappointment when his term ends in the fall, and vows to abstain from court decisions until then. 

Friday, January 07, 2011

Beyond the Toolkit: Controlling Taxes Through Legal Reform

Every mayor and taxpayer wants to control property taxes. But many are unaware of the role that New Jersey’s courts have played in driving up tax bills in recent years. The erosion of sovereign immunity and the expansion of areas in which municipalities – and by extension, taxpayers – are expected to foot the bill have forced towns to spend ever-increasing sums on insurance premiums, risk management, and maintenance at a time when they can least afford it. Elected officials and the insurance professionals that assist them are invited to learn how legal issues affect their bottom lines and how they can work together to reverse current trends.

The Insurance Council of New Jersey will be hosting a seminar next Friday, January 14th, at the Trenton Marriott entitled “Beyond the Toolkit: Controlling Taxes Through Legal Reform.” 

Confirmed speakers include: Mary Caffrey, President of the Charleville Company, LLC; Matthew J. Giacobbe, Esq., Partner, Cleary, Giacobbe, Alfieri, Jacobs LLC; David N. Grubb, Chief Executive Officer, Municipal Excess Liability Joint Insurance Fund; and Richard Wilson, Selective Insurance Company. 

They will discuss how towns can put policies in place to reduce their costs related to risk management and their insurance policies, and will be available to answer questions.  The cost is $50, which you can pay securely through ICNJ’s website

Registration begins at 9 a.m. at the Trenton Marriott on January 14th.  The workshop will run from 10 a.m. until noon. 

Thursday, January 06, 2011

Last chance to vote for the most obnoxious lawsuit of 2010!

The contenders:

A teen intentionally drives her car into oncoming traffic, killing a pregnant mom and her 13-year-old son - and then sues the surviving family members for her 'mental anguish';
A drunk New Jersey man drives crashes his motorcycle into a car, and then sues the bar for his injuries;
A customer spills hot tea on herself and sues Starbucks;
A fast food restaurant manager sues McDonald's for making him fat.

Click here to cast your vote!

Tuesday, January 04, 2011

Justice Roberto Rivera-Soto Won’t Seek Reappointment

New Jersey Supreme Court Justice Roberto Rivera-Soto, who infamously declared last month that he would abstain from rulings while a temporary justice fills the vacant seat of former Justice John Wallace Jr., announced to Governor Christie that he will not pursue his own renomination.   

Justice Rivera-Soto’s term ends in September.  Senate President Steve Sweeney has vowed not to hold a confirmation hearing on Anne Patterson, whom Governor Christie nominated to succeed Justice Wallace, until 2012, when Justice Wallace would have reached New Jersey’s mandatory retirement age.  Governor Christie, for his part, has vowed not to nominate a replacement for Justice Rivera-Soto until a hearing on Patterson is held. 

It remains to be seen whether the Governor will appoint Anne Patterson to fill Justice Rivera-Soto’s anticipated vacancy, or if New Jersey will have two vacancies on its Supreme Court instead. 

Supreme Court Justices serve a 7-year term and are then eligible for tenure until the mandatory retirement age of 70.  The Star-Ledger published the following New Jersey Supreme Court timeline in today’s edition:

Supreme-court-justices-timelinejpg-bc77902f15d07fe9

Sunday, January 02, 2011

Legislative Calendar is up (January – March 2011)

Below are the 2011 legislative committee dates for the committees of particular interest to NJLRA (Judiciary, Health and Senior Services, & Economic Growth), along with anticipated voting session dates for the Assembly and Senate.  Legislative Digest also has the complete committee legislative calendar through March 21st online. 

THURSDAY, JANUARY 6, 2011

 SENATE SESSION 2:00 PM Senate Chambers

Voting Session: Board list to be announced

 ASSEMBLY SESSION Assembly Chambers

Voting Session: Time and board list to be announced

 MONDAY, JANUARY 10, 2011

 SENATE SESSION 2:00 PM Senate Chambers

Voting Session: Board list to be announced

 ASSEMBLY SESSION Assembly Chambers

Voting Session: Time and board list to be announced

 TUESDAY, JANUARY 11, 2011

 JOINT SESSION

Joint Session to receive Governor's State of the State Address.

THURSDAY, JANUARY 20, 2011

 SENATE QUORUM 12:00 PM Senate Chambers

1:00 PM: Senate Health, Human Services, and Senior Citizens scheduled to meet

 ASSEMBLY QUORUM Assembly Chambers

10:00 AM: Group (A) Assembly Health and Senior Services scheduled to meet

2:00 PM: Group (B) Assembly Commerce and Economic Development scheduled to meet

 MONDAY, JANUARY 24, 2011

 ASSEMBLY QUORUM Assembly Chambers

10:00 AM: Group (C) Assembly Judiciary Committee scheduled to meet

MONDAY, JANUARY 31, 2011

 SENATE QUORUM 12:00 PM Senate Chambers

10:00 AM: Group (3) Senate Economic Growth scheduled to meet

1:00 PM: Group (4) Senate Judiciary scheduled to meet

THURSDAY, FEBRUARY 3, 2011

 ASSEMBLY QUORUM Assembly Chambers

10:00 AM: Group (A) Assembly Health and Senior Services scheduled to meet

2:00 PM: Group (B) Assembly Commerce and Economic Development scheduled to meet

MONDAY, FEBRUARY 7, 2011

 SENATE QUORUM 12:00 PM Senate Chambers

1:00 PM: Group (2) Senate Health, Human Services, and Senior Citizens scheduled to meet

 THURSDAY, FEBRUARY 10, 2011

 ASSEMBLY QUORUM Assembly Chambers

10:00 AM: Group (C) Assembly Judiciary Committee scheduled to meet

 MONDAY, FEBRUARY 14, 2011

 SENATE QUORUM 12:00 PM Senate Chambers

10:00 AM: Group (3) Senate Economic Growth scheduled to meet

1:00 PM: Group (4) Senate Judiciary scheduled to meet

 THURSDAY, FEBRUARY 17, 2011

 SENATE SESSION 2:00 PM Senate Chambers

Voting Session: Board list to be announced

 ASSEMBLY SESSION Assembly Chambers

Voting Session: Time and board list to be announced

THURSDAY, MARCH 3, 2011

 SENATE QUORUM 12:00 PM Senate Chambers

11:00 PM: Group (2) Senate Health, Human Services, and Senior Citizens scheduled to meet

ASSEMBLY QUORUM Assembly Chambers

10:00 AM: Group (A) Assembly Health and Senior Services scheduled to meet

2:00 PM: Group (B) Assembly Commerce and Economic Development scheduled to meet

MONDAY, MARCH 7, 2011

 ASSEMBLY QUORUM Assembly Chambers

10:00 AM: Group (C) Assembly Judiciary Committee scheduled to meet

 THURSDAY, MARCH 10, 2011

 SENATE QUORUM 12:00 PM Senate Chambers

10:00 AM: Group (3) Senate Economic Growth scheduled to meet

1:00 PM: Group (4) Senate Judiciary scheduled to meet

 MONDAY, MARCH 14, 2011

 SENATE SESSION Senate Chambers

10:00 AM: Committees at the call of the Senate President

 ASSEMBLY SESSION Assembly Chambers

Voting Session: Time and board list to be announced

 MONDAY, MARCH 21, 2011

SENATE SESSION 2:00 PM Senate Chambers

10:00 AM: Committees at the call of the Senate President

Voting Session: Board list to be announced