Lawsuit Reform Watch

Patterson hearing scheduled to begin today at 1 p.m.

The Senate Judiciary Committee will begin reviewing Anne Patterson’s nomination to the State Supreme Court today at 1 p.m., according to reports, in Committee Room 4. 

Senator Nicholas Scutari (D-Union), who chairs the Judiciary Committee, told the Star-Ledger that the panel would be “looking for her [Patterson’s] philosophical views and thoughts on certain “facts and circumstances.”  He plans to ask how she would feel if she were not reappointed to the bench after seven years “for the same reasons Wallace was not reappointed.”   

Op-Ed: The High (and Hidden) Costs of Lawsuits against Local Governments

It’s time to recognize the role that municipal lawsuits play in the crushing burden of New Jersey’s property tax.

In New Jersey, the arrival of spring doesn’t just mean warmer weather and the smell of fresh flowers, it’s also the time of year when our state’s 566 municipalities draw up their budgets.  And most of us, busy with daily life, fail to take note of our own council’s agenda – until we see the increase on our next property tax bill. 

Read NJLRA’s op-ed in NJ Spotlight. 

Tort reform and healthcare costs....

The cost of healthcare is a hot topic in New Jersey.  States that enacted non-economic malpractice caps saw a 3 – 4 percent decrease in healthcare costs over the last few years, according to the Agency for Healthcare Quality and Research. 

Why does tort reform reduce the cost of healthcare?  For starters, it lessens the needs for defensive medicine.  Unnecessary tests can be both costly and time-consuming, and the patient isn’t any healthier for it. 

With a looming physician shortage, perhaps it’s time for New Jersey to take a look at these cost-cutting measures.  A poll conducted by the American College of Emergency Physicians (ACEP) recently found that more than half of emergency room doctors cite their fear of being sued as the primary reason for ordering unnecessary tests in the ER.  Emergency room doctors may be particularly vulnerable to lawsuits, because patients are generally sicker and they often don’t have access to patients’ medical histories. 

Post-reform, Texas emergency rooms have undergone the second biggest improvement in wait times in the nation.  And that’s not it for the Lone Star State.  Texans -who faced a physician shortage not unlike the one New Jersey will likely face- have added at least one emergency room physician in 33 rural counties, 24 of which previously had none. 

That’s not just stopping the hemorrhaging: it’s a reversal.  One that New Jersey patients could benefit from, too – expanding access to care is a welcome consequence of enacting tort reform. 

The Next Public Health Crisis? Obese patients too high-risk

Obese women aren’t always treated kindly by society.  And now, some OB-GYNs in Florida say they simply can’t risk treating them – at all. 

"People don't realize the risk we're taking by taking care of these patients," said Dr. Albert Triana.  "There's more risk of something going wrong and more risk of getting sued."

The Sun-Sentinel polled 105 OB-GYNs in South Florida.  Fifteen of them said they refuse otherwise healthy new patients over 200 pounds. 

Doctors can decline patients for any reason.  But when fourteen percent of OB-GYNs won’t see obese patients because the financial risk is too high, we could be seeing the dawn of a disturbing public health trend. 

According to the Los Angeles Times, which also reported on the study, South Florida OB-GYNs have “long complained of high numbers of lawsuits after difficult births and high rates for medical malpractice insurance.”  Obese women who were pregnant were somewhat routinely referred to specialists, but turning down obese women who are not pregnant is new.  According to doctors interviewed, obese patients present an increased risk of complications – and are increasingly seen as potential lawsuit. 

We have enough barriers between women and gynecological and prenatal care in the United States.  It would be great if the trial lawyers, with their self-proclaimed concern for the average person, would stop adding to these barriers and support medical malpractice reform instead. 

Anne Patterson hearing scheduled for Tuesday, May 31st at 1:00 p.m.

You can listen to the hearing live on the Legislature’s homepage.   

Did you know…

… more than 55,000 New Jersey residents are employed by one of our 24 pharmaceutical companies?  Another 75,000 New Jerseyans are employed indirectly through service contracts.  Collectively known as the nation’s “Medicine Chest,” New Jersey’s pharmaceutical companies are among the state’s most philanthropic entities.  In 2010, they added a total of $29.5 billion to the economy through enterprise and charitable giving. 

NJ is one of the “Worst States for Business”

Chief Executive Magazine released its 2011 survey of the worst states for business.  Unsurprisingly, Texas is ranked best, and New Jersey, New York, Illinois and California are the bottom four.  New Jersey held steady at #47 for the third consecutive year.

It will also come as no surprise that many states in the top 10 continue to address civil justice reform issues (beneficial reforms are under legislative consideration in 5 of the top 10 states).

You can read Chief Executive Magazine’s full article and methodology here, or click on the map below for an interactive map of the best and worst states for business. 

Legislative Update

The Assembly held two bills opposed by NJLRA, NJBIA, and other business groups originally scheduled for consideration on Monday. 

A-3433 would prohibit consumer contracts from requiring that arbitration take place outside of New Jersey.  NJLRA maintains that arbitration offers a meaningful and effective forum for resolving disputes without litigation. 

The Assembly was also scheduled to consider A-3434, which would require a review of a consumer contract for unconscionability and set the standard for review.  The Assembly adopted amendments to specify that the bill would not apply to arbitrations conducted or administered by a self-regulatory organization; however, the bill was held.  It may also be in conflict with the U.S. Supreme Court’s April 27, 2011 decision in AT&T vs. Concepcion. 

Assemblyman Dominick DiCicco praised the decision to hold “bad business bills” A-3433 and A-3434, which he called the “first step in getting [the Legislature’s] priorities straight.”

Supreme Court Update: Patterson will be scheduled for May 24th

Full consideration by the State Senate is expected to take place in June, according to sources.

South Jersey Towns Sing a Familiar Tune

We’ve said it many times before: taxpayers lose when frivolous litigation is filed against government entities. 

Money that could be spent on maintaining municipal services ends up being spent on attorney’s fees, even when a plaintiff’s damages aren’t apparent or quantifiable. 

The Gloucester County Times reported over the weekend that several South Jersey towns are supporting legislation they say will “make lawyers think twice about filing any old lawsuit.” S-2404, sponsored by Senator Sean Kean (R-Monmouth) would cap the attorney fee awards that public entities are required to pay when a plaintiff receives a judgment. 

The Municipal Excess Liability (MEL) Joint Insurance Fund recently released a study which showed a dramatic cost increase among closed claims over the last ten years.  Fee-shifting laws often require the public entity to pay for the plaintiff’s legal fees as well as its own, leaving little disincentive for an attorney to file suit for small damages or unquantifiable cases. 

S-2404 would cap attorney fee awards that public entities are required to pay at $50,000 if the plaintiff is awarded $50,000 or less.  If the plaintiff is awarded more than $50,000, the attorney’s fees could not exceed that amount.  For the average New Jersey town, this is a lot of money!

There is no Assembly version of S-2404 currently. 

New Jersey Supreme Court 101

The path Anne Patterson is taking to the State’s highest Court can be confusing to most non-judicial scholars.  Let’s recap:

The basics

The New Jersey Supreme Court is made up of 7 justices, compared to 9 on the U.S. Supreme Court.  Justices are initially nominated by the Governor and are referred to the Senate Judiciary Committee for consideration.  Once the State Senate bestows its blessing on the nominee, the Justice serves for an initial term of seven years. 

Following the seven year term, the Governor decides whether to nominate the Justice for tenure.  All justices must retire by age 70, if not sooner. 

Tradition calls for three justices of each party to occupy the bench, with the seventh justice to be of the Governor’s party. 

The road less traveled

Approximately one year ago this week, Governor Christie bucked tradition by choosing not to appoint Justice John Wallace for lifetime tenure – a tenure that would last two years, until he reached the mandatory retirement age.   Governors have traditionally nominated Justices for lifetime appointment despite the Justice’s party affiliation, which some argue is necessary so Justices aren’t pressured to take political conditions into their decisions on the Court. Others argue that it is the Governor’s right to base lifetime tenure on ideology as well as moral integrity.  Governor Christie then announced his intention to appoint Anne Patterson, a Republican, to the Supreme Court. 

 This is where Patterson’s path to the high court becomes unique.  In response to the bucking of tradition, Senate President Steve Sweeney declared that the Democratically-controlled legislature would not hold a hearing on Anne Patterson’s nomination until Wallace’s lifetime term would have ended in 2012.  The Governor did not budge on his decision not to nominate Wallace. 

 This left a vacant seat on the court.  In keeping with precedent, Chief Justice Stuart Rabner appointed appellate judge Edward Stern as a temporary justice.  Chief Justices have traditionally nominated the senior appellate judge to temporarily fill a vacancy on the high court when one occurs. 

 Not everyone was happy.  Justice Roberto Rivera-Soto declared in December, via a Court decision, that he would abstain from the Court’s decisions in protest because he did not believe Rabner did not have the authority to appoint a temporary justice.  Rivera-Soto later modified his stance, saying he would indeed vote on cases where Stern's vote did not affect the outcome.  Calls for Rivera-Soto’s immediate resignation grew louder from Senate Democrats and newspaper editorial boards.  A few weeks later, he informed Governor Christie that he would not seek renomination when his term ends this September. 

 Fast-forward to this week.  With the possibility of two vacancies on the Supreme Court this fall looming, Governor Christie and Senate President Sweeney announced that they reached an agreement: The Senate Judiciary Committee would consider Anne Patterson’s nomination by the end of May – to the seat about to be vacated by Justice Rivera-Soto, not Justice Wallace. 

Senate Judiciary Committee

Approval by the Senate Judiciary Committee is the next step in this process.  The Committee, headed by Senator Nick Scutari (D-Union) is made up of a total of eight Democrats.  There are five Republicans on the Committee.

Senator Ray Lesniak (D-Union) said that he intends to vote no.  Senators Scutari and Tom Kean, Jr. (R-Union) have released statements.

 LRW will keep you informed as the hearing unfolds. 

NJLRA Statement on Anne Patterson Nomination

NJLRA issued the following statement after the announcement that Governor Christie and Senate President Sweeney agreed to hold a hearing on the nomination of Anne Patterson to the seat being vacated by Justice Roberto Rivera-Soto on the State Supreme Court:

"We applaud Governor Christie and Senate President Sweeney for coming together to advance Anne Patterson's nomination and we look forward to a thoughtful hearing on her well-qualified candidacy.

“A strong and fully-constituted Supreme Court is vital to New Jersey's business community, as important issues decided by the Court directly impact New Jersey’s economic competitiveness.