41 posts categorized "Expert Evidence"

Thursday, February 06, 2014

Paulsboro Freight Train Derailment Lawsuit Highlights NJCJI Concerns with New Jersey Court System

Reforming New Jersey’s standards for expert testimony continues to be a top priority for the New Jersey Civil Justice Institute, and a recent ruling in the ongoing Paulsboro freight train derailment lawsuit highlights the issue.

30 of the nearly 100 plaintiffs in the Paulsboro litigation have had their cases removed to New Jersey state court after pleading a lack of complete diversity. Though diversity is the stated concern, it is not the full story, as the plaintiffs have attempted multiple times to have the all of the claims heard in state court.

A recent article in the New Jersey Law Journal by David Gialanella suggests that the actual reason state court is preferred is the state’s rules of evidence:

New Jersey state court is considered a superior forum for plaintiffs alleging injuries from toxic exposure, due to its "adversarial" standard of admissibility of scientific evidence. Judges rely on the parties to produce the evidence and testimony needed. It's different in federal court, where judges are empowered to make their own investigations into the sufficiency of expert testimony.

If both the state and federal cases go to trial, court watchers will have a clear look at how expert testimony differs in response to the differing rules of evidence.


Top News Clips for the Week of Feb. 1-7

A selection of the need-to-know civil justice news for the week of February 1-7, 2014.

Continue reading "Top News Clips for the Week of Feb. 1-7" »

Thursday, May 23, 2013

NJCJI Executive Director Marcus Rayner testifies before the NJ Supreme Court


Marcus Rayner Headshot

NJCJI's President, Marcus Rayner, testified before the state’s highest court on Tuesday, May 21st.  Rayner asked the justices to consider amending the state’s Rules of Evidence to ensure that evidence permitted in New Jersey courtrooms are of comparable caliber to evidence permitted at trial in other jurisdictions.  New Jersey’s Rules of Evidence, which act as a framework to determine whether evidence is admissible in court, have been heavily criticized for being too favorable to plaintiffs and their attorneys.  As a result, plaintiffs from across the country seek to have their cases heard in New Jersey courts whenever possible, where the standard for what may be considered evidence is notoriously and disproportionately low.  The past several years have seen an epidemic of “litigation tourism” in New Jersey as thirty-four other states have adopted all or part of the federal Daubert standard.  Amending New Jersey’s Rules of Evidence would likely cut down on litigation tourism and the associated costs of hearing the cases of non-New Jersey residents and warrant fewer instances of appellate review. 


Rayner was joined by Edward Fanning, who testified on behalf of the New Jersey Defense Association, and John Zen Jackson, testifying on behalf of the Medical Society. 

Wednesday, April 27, 2011

Where to file a whacky class-action lawsuit? New Jersey, of course!

New Jersey’s Consumer Fraud Act is among a minority states which allow “litigation tourism” – that is, permitting non-New Jersey residents to sue under the Act.  And because New Jersey’s CFA is so broadly constructed, many out-of-staters and their attorneys are eager to jump on the class-action bandwagon

Case in point:

Lawsuit claims Benjamin Moore 'zero VOC' paint has foul odor

Apr 26, 2011 5:17 PM  | Via Consumer Reports


Describing the smell of some batches of Benjamin Moore’s Natura paint as “horrid,” two law firms filed suit against the paint maker today on behalf of a woman who claims she had to move out of her home because the odor was so strong. Filed in the U.S. District Court of New Jersey, the complaint initiates a class action suit, according to Lexington Law and Scott + Scott LLP.

According to court papers, Marlene Sway, the plaintiff, painted several rooms in her California home with Natura paint in 2009. Soon after she noticed a foul odor and areas where the paint failed to dry, according to the complaint. She eventually moved out.

Moral of the story?  Lawyers love to file lawsuits under New Jersey's Consumer Fraud Act, especially when they stink.

Monday, April 11, 2011

Senator Allen on medical malpractice reform, and other women’s issues

Allen The trials and tribulations Senator Diane Allen (R-Burlington) faced in New Jersey politics were front and center over the weekend in a Star-Ledger piece by Linda Ocasio. 

A cosponsor of S-760/A-1982, which would enact many of the medical malpractice reform measures NJLRA supports, Senator Allen offers her perspective as to why it hasn’t been acted upon:

“If we had more women of either party, we’d get a lot of these things through,” Senator Allen said. 

An extensive hearing of the bipartisan, bi-cameral Women’s Legislative Caucus last year underscored the declining number of OB/GYNs and subsequent impact on women’s access to care.  After months of languish, the Assembly version of the bill passed favorably from the Assembly Health and Senior Services Committee, but was later second-referenced to the Assembly Judiciary Committee. 

You can read the full Star-Ledger piece here

Tuesday, April 05, 2011

"Old-Fashioned Justice," meet the trial lawyers

With arguments in the Wal-mart sex-discrimination case before the U.S. Supreme court, Liptak examines whether the class is too big and too diverse to produce a fair outcome

Excerpt: WASHINGTON — Can a class-action lawsuit be too sprawling to deliver old-fashioned justice?

Justice Antonin Scalia seems to think so, judging by his comments on Tuesday during the Supreme Court argument in the biggest employment discrimination class action in history.

“We must have a pretty bad judicial system,” he said, reflecting on what he had just heard from a lawyer for hundreds of thousands of women suing Wal-Mart over what they say was unfair treatment on pay and promotions. The lawyer had said that a trial judge could rely on statistical formulas rather than testimony and personnel records to decide how much money the company would have to pay each plaintiff if it lost.

“Is this really due process?” Justice Scalia asked.

In other words, does the impersonality of the suit threaten its ability to be fair to each plaintiff and to Wal-Mart, the country’s biggest private employer?

Read entire article.

Monday, March 07, 2011

A-1982 released by Assembly Health Committee!

Assembly bill A-1982, sponsored by Assemblyman Herb Conaway, was voted out of the Assembly Health and Senior Services Committee today, 8 votes in the affirmative and two abstentions. 

A-1982 takes steps to rectify the New Jersey Supreme Court’s 2010 decision in Ryan v. Renny, which gutted the affidavit of merit statute.  It also protects volunteer physicians from medical malpractice liability and prevents insurance companies from immediately imposing an increase on doctors who are named in a malpractice suit. 

Several committee members, including Assemblywomen Celeste Riley and Elease Evans, spoke of the impact New Jersey’s doctor crisis will have on women’s access to healthcare.  New Jersey already has a 12% gap between the number of New Jersey’s patients and doctors available to treat them.  This number is expected to widen by another 3,000 doctors by the end of the decade if changes are not made, and higher-risk specialties like obstetrics will be hit hardest. 

Assemblywoman Nancy Munoz, who voiced language concerns in a previous hearing, and Assemblyman Jerry Green were the lone abstentions. 

Wednesday, February 16, 2011

Read NJLRA’s letter-to-the-editor in this week’s edition of NJBIZ

Trial lawyers need a new hobby / Marcus Rayner


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.

Read entire letter on the NJBIZ website. 

Merck wins round one in Fosamax case

New Jersey-based drug maker Merck achieved the improbable: it won a case in New Jersey’s hottest “Judicial Hellhole.”

The Star-Ledger reports that 9 out of the 10 jurors in an Atlantic County Superior Courtroom didn’t believe Merck’s osteoporosis drug Fosamax was the source of a Pennsylvania woman’s jawbone condition, called osteonecrosis.   Merck’s lawyers argued that the plaintiff’s extensive dental problems and a steroid she used may have been to blame. 

Nearly 300 lawsuits are involved in the mass tort case.  It was an important first victory, even if it is one the plaintiff’s attorneys will almost certainly appeal. 

Atlantic County, New Jersey, was named by the American Tort Reform Association as one of the nation’s Judicial Hellholes in 2009.   

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.”

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.” 

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

Wednesday, December 29, 2010

2010 in Review

            I am happy to report that the 214th NJ legislature has taken positive first steps toward reforming New Jersey's civil justice climate.  Most notably, A-2473/S-480, which extends appeal bond caps to all industries, is now on second reading in the General Assembly.  We also saw efforts to reform New Jersey's oft-abused Consumer Fraud Act with the introduction of A-3333.  Finally, the Assembly Health and Senior Services Committee held a hearing earlier this year on A-1982, which would reform New Jersey's medical malpractice environment for our state's doctors.    Collectively, these initiatives would discourage frivolous class-action litigation and enhance the integrity of scientific evidence admitted in our courts.  NJLRA would like to thank all of the bills' sponsors and the legislative leadership in both parties for their commitment to advancing pro-business legislation.  Together with our supporters, we are able to educate the legislature on the importance of these initiatives.  Senator Raymond Lesniak (D-Union), who was NJLRA's keynote speaker at our Fall Membership Luncheon, said NJLRA's proposals will be a "cornerstone" of the state's effort to reposition New Jersey's economy for long-term growth.  We enthusiastically accept Senator Lesniak's wisdom. 

            If you think you have seen more of NJLRA lately, it's because we have increased efforts to get our message out.  In 2010 we re-launched our website, where you can find any of the eight op-eds I authored over the past year.  NJLRA has also been the focus of several news stories and has written a dozen letters to-the-editor.  I encourage you to visit NJLRA's Blog and Facebook page.  You can also follow us on Twitter

We continue to make an effort to reach out to New Jersey's small business community.  A recent poll we conducted in conjunction with the Monmouth University Polling Institute suggests that many of the Garden State's small businesses feel vulnerable to abusive lawsuits.  We are hoping to articulate the unique needs of New Jersey's small business community as we meet with legislators across the state. 

      As we have said in the past, New Jersey cannot recover from this recession without sound policies that support job growth.  With limited resources to fund tax breaks or business incentives, legal reform offers policymakers in Trenton a revenue-neutral policy change that can send a very strong message to employers all across the nation.  States which have enacted tort reform, including Texas, now lead the country in job growth and physician retention. 

            Thank you again for your continued support.  I am confident that we will continue our path toward reforming New Jersey's civil justice laws in 2011.  Please save the date for NJLRA's first Membership Meeting of 2011, which will be held on Tuesday, March 8th at noon at the Trenton Country Club.  We will discuss our plans for 2011.  As always, please do not hesitate to contact me if I can ever be of assistance. 

Friday, December 17, 2010

Texas pursues the Holy Grail of Tort Reform

Twenty-three counties lacked an E.R. doctor.  Ten counties lacked an OB-GYN.  No, this is not a third world country: it was Texas, prior to tort reform. 

The Wall Street Journal calls the pre-reformed Texas a “holy place on the tort bar pilgrimage,” that has now morphed into a “Mecca for doctors.”  Incentives didn’t hurt, either, and Texas now leads the country in job creation.  Product liability, class-action certification, and noneconomic damage caps were reformed in 2003 and 2005.  Now, according to the Journal, Texas Governor Rick Perry wants to extend his state’s tort reform successes – British style.  It’s a thinly-veiled deterrent to filing frivolous lawsuits, which drive up business costs and drive down economic growth. 

The “loser pays” concept isn’t a new one.  The purest-form version of “loser pays” is that the losing party picks up the attorney’s tab.  The proposed caveat would impose a penalty on the losing firm which files the case, forcing trial lawyers to think twice before filing questionable claims. 

Governor Perry is also calling for “new legal channels” to expedite claims below $100,000, but details about this proposal aren’t readily available. 

It sounds like Texas might be headed in the right direction.  It begs the question: if Texas can entice doctors, why can’t New Jersey?

Friday, November 05, 2010

Check out Marcus’s interview in the Metropolitan Corporate Counsel

Executive Director Marcus Rayner was recently interviewed by the editor of the Metropolitan Corporate Counsel, a publication dedicated to serving the interests of corporate counsel.   

NJLRA: Fostering Business Growth And Job Creation.  Published on November 2, 2010

An excerpt:

Editor: How important has the legal climate been in discouraging businesses from coming to New Jersey or from succeeding here?

Rayner: New Jersey presents many challenges for businesses and those they employ, including the high cost of living, regulations, and taxes. The civil justice system is something businesses consider when deciding where to locate and expand. Unfortunately, one of our largest industries - the life sciences and pharmaceutical industry, as well as healthcare - is the most susceptible to litigation abuse because of the large number of people it serves.

When you sell medical devices and pharmaceutical products, you are servicing people who are, in many cases, facing a disease or a physical challenge that these items are helping them to overcome, and the results can vary across populations. It is important for the large industries that are critical to New Jersey's economic success that our laws be fair. We did a study in 2008 of all the mass tort litigation facing pharmaceutical manufacturers here in the state. It found that 94 percent of the plaintiffs in these cases were from outside the state. They chose to sue under New Jersey law and before New Jersey judges rather than in their home states because the legal environment here is much more favorable to their lawsuits.

The legal climate here is much worse than that in Delaware, Pennsylvania, or New York. Businesses here face a toxic combination of our Consumer Fraud Act, court rulings on things like the statute of limitations on discovery, and, most acutely, New Jersey's weak standards for expert evidence testimony in a courtroom. When you are talking about medical liability suits and product liability suits against manufacturers of medical devices and drugs, the quality of the expertise admitted in a courtroom is critical. When the door is wide open to unqualified witnesses and unscientific testimony, you get grossly unfair results.

Click here for the full interview.

Wednesday, October 27, 2010

New Jersey’s civil justice climate often deals its doctors two bad hands

Medical professionals often wear multiple hats.  In addition to practicing medicine and standing up to a hostile malpractice climate, many doctors are also small business owners who must navigate New Jersey’s challenging business laws.  Think of your dentists, general practitioners, and gynecologists.

NJLRA recently launched a small business task force to learn more about this set of needs.  Our recently-released survey, conducted by the Monmouth University Polling Institute, examined the impact of New Jersey’s civil justice climate on a variety of small business types.  And as we know, the results of this survey were alarming:  approximately one-in-five small businesses have been sued in the last five years, and another one-in-three expect to be hit with a lawsuit in the near future.  Doctors and other medical professionals weren’t included in the survey sample, but I’d be willing these numbers would be skewed unfavorably if they were. 

It’s a difficult climate for any small business to operate in New Jersey.  Doctors are leaving New Jersey for greener pastures at an alarming rate.  When they have to balance the burdens of weak evidentiary standards and a hostile Consumer Fraud Act against ever-increasing malpractice premiums and costs of doing business, it’s hard to blame them. 

Tuesday, October 19, 2010

Accutane, and New Jersey’s booming litigation tourism industry

I’m going to go out on a limb and say that Accutane isn’t more dangerous in New Jersey than it is in Nebraska.  Or Illinois.  Or Texas, for that matter. 

Yet, more than 400 lawsuits have been filed in the past two months in New Jersey, claiming that its manufacturer, Roche, failed to warn users of its side effects, which are said to include gastro-intestinal and cardiovascular complications.  5,000 lawsuits have been filed nationwide; nearly 1,600 cases are pending in New Jersey. 

Why the flood of lawsuits here in New Jersey, as opposed to any other state?  No, it’s not because New Jerseyans are more acne prone.  Not all of the plaintiffs even live in New Jersey, in fact.  News Inferno.com notes that “the spike in Accutane claims filed in New Jersey come on the heels of a court ruling there that found the statute of limitation for such lawsuit should be based on when plaintiffs discovered there could be a connection between Accutane and their bowel disorder.” 

Essentially, the decision opened the floodgates for litigation – and in New Jersey, a lawsuit can yield a nice profit (see In Atlantic County, the trial bar hits the jackpot, and consumers pay – again, for a $25.1 million example). 

Tuesday, October 05, 2010

Around the web, 10.5.10

Panel To Study Concept of Requiring Malpractice Insurance for Lawyers

By Charles Toutant | New Jersey Law Journal

October 4, 2010

The state Supreme Court has formed a committee to weigh the benefits and burdens of mandatory malpractice insurance and a requirement that lawyers disclose whether they have such coverage.

Read story

Court Term Features Wrongful Death, Malpractice Cases With Unique Issues

By Mary Pat Gallagher | New Jersey Law Journal

October 4, 2010

The state Supreme Court this term has agreed to decide some prickly issues affecting wrongful death and medical and legal malpractice cases.

The wrongful death case is Aronberg v. Tolbert, A-15-10, an appeal from a June 8 Appellate Division holding that even though drivers without insurance are not allowed to sue for personal injury, their heirs can sue for their own losses.

Read story

Merck to appeal $4.6M verdict in Mass. fraud case

By Linda A. Johnson | The Associated Press

September 30, 2010

Trenton, N.J. -- Drugmaker Merck & Co. plans to appeal a federal court verdict that a former subsidiary caused the commonwealth of Massachusetts to overpay pharmacists for a widely used asthma medication, the company said Thursday.

After a three-week trial, a jury in Boston found Merck liable for about $4.6 million in compensatory damages. The judge hearing the case, U.S. District Judge Patti Saris, is to decide later on potential punitive damages, which Merck said could be substantial.

Read story

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 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. 


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, 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.”

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.

Friday, July 23, 2010

In a 6 – 1 Decision, N.J. Supreme Court Guts Affidavit of Merit Statute

Plaintiffs’ attorneys are able to use experts from “outside the field” to testify against doctors in malpractice suits. 


TRENTON, N.J.The New Jersey Supreme Court ruled yesterday that plaintiffs don’t need to explain why they can’t find an appropriately qualified expert to testify in malpractice cases before seeking a good-faith waiver under the Affidavit of Merit Statute, only that they gave it a “college try.” 


In the case of Ryan v. Renny, the plaintiff’s attorney filed suit against a board-certified gastroenterologist, saying that the doctor deviated from accepted standards of care when he perforated a bowel during a colonoscopy.  The justices ruled in a 6 – 1 decision that even though the plaintiff’s attorney tried and failed to secure affidavits of merit from at least three different doctors certified in the same field, they would accept an affidavit of merit from a surgeon who was not board certified and had himself not performed the procedure  in many years.


"For many years the Affidavit of Merit Statute served its purpose - weeding out meritless lawsuits.  The Court's decision guts the Affidavit of Merit and opens the door to litigation abuse against New Jersey’s doctors,” said Marcus Rayner, executive director of the New Jersey Lawsuit Reform Alliance. 


“Loosening the Affidavit of Merit Statute to the point of irrelevance is one more disincentive for doctors to practice in New Jersey, said Rayner, citing a study by the Council of Teaching Hospitals, which projects that New Jersey will be short an estimated 3,000 doctors by the end of the decade.


Justice Roberto Rivera-Soto dissented, saying that the defendant has a legislative right “to be free of malpractice claims of questionable merit.” 


A copy of the Court’s decision can be found on the web at



# # #

Thursday, July 15, 2010

The other Emergency Room issue

A dwindling pool of emergency room doctors and medical personnel has helped increase waiting room times in hospitals across the Garden State.  And as more doctors decide to practice outside of New Jersey, the average wait time probably won’t improve anytime soon.  It affects all of us: whether it’s a broken bone, a fainting spell, lack of insurance, or accompanying a friend or family member, most of us will spend time in the ER.  If your emergency can wait for any length of time, usually it does.  Understandable when there are patients who are in more emergent situations. 

So when I read Jennifer Golson’s story in the Star-Ledger about a female Muslim patient languishing in the emergency room for five hours, I couldn’t help but wonder if there is a latent issue spanning all races and creeds.  The patient, Rona Mohammedi, is suing Somerset Medical Center for religious discrimination and violating New Jersey’s version of the Patient’s Bill of Rights. 

Sporting a hijab, Ms. Mohammedi went to the emergency room last February with severe chest pain.  An electrocardiogram was ordered, and in a nod to her religious convictions, she asked for a female to conduct the test. 

The important question is why Ms. Mohammedi was waiting.  It was likely either because (A) the hospital staff was deliberately hostile toward her request, or (B) there wasn’t a female available to perform the test. Was she being ignored, or did she merely become tired of waiting?

It ended when her husband requested a transfer.  A lawyer for the hospital said that Ms. Mohammedi was informed of her options and left against medical advice.  Michael F. Schaff, chair of the health care department at Wilentz, Goldman, & Spitzer said that the Patient’s Bill of Rights makes no mention of lawsuits, and that “there is no obligation to require hospitals to have a physician on staff 24 hours a day, seven days a week based on their sex, religion, or nationality.”  That’s particularly crucial in New Jersey, since our shrinking pool of doctors makes it increasingly harder to find physicians, much less filter physicians based on sex, religion, or nationality. 

The New Jersey Hospital Association (NJHA) said that hospitals are required to make “reasonable accommodation” for patients with special requests, but how “reasonable accommodation” is defined can vary, said Kerry McKean Kelly, their spokesperson.  “Especially in a high intensity place like the ER, the question of what is reasonable can vary hour by hour based on factors like the number of patients in the ER, the severity of their conditions, staffing levels, and in this case, the gender and credentials of various staff members.  A hospital’s first responsibility is to stabilize their patients and then prioritize…” 

For a multitude of reasons, we all spend too much time in the ER.  Some contributors, like the doctor shortage, are underscored in New Jersey.  Other reasons – like a large number of uninsured residents per capita – are not unique to the Garden State. Additional preconditions placed upon our emergency rooms can turn a very long (but ordinary) ER visit into grounds for an attractive lawsuit if the patient is able to wait for their accommodations to be made but gets frustrated with how long it takes. 

Thursday, July 08, 2010

Washington Supreme Court nixes waiting period for malpractice lawsuits

In 2006, Washington State enacted legislation which required plaintiffs to give 90 days’ notice to doctors before filing malpractice claims. 

It was recently struck down by the state Supreme Court, which said that it was the Judiciary’s responsibility – not the Legislature’s – to set court procedures. 

The 90 day waiting period was meant to encourage settlements in cases that might otherwise head straight to court, writes Curt Woodward for the Seattle Pi.  It was part of a package of medical malpractice reform legislation intended to address rising concerns over malpractice litigation.   

In late 2009, the Court also struck down a law requiring injured patients to get a certificate of merit before suing their doctor, saying it was an undue burden. 

Wednesday, June 23, 2010

In New Jersey, it’s en vogue to sue the doctor when Mother Nature is unavailable for questioning

The lawsuit was filed by the family of William Hensley, a 40-year-old Wantage resident, who died after being stung by bees 30 times while mowing his lawn.  The result is a $1.6 million judgment against a New Jersey ER doctor. 

A month before his death in August 2005, Mr. Hensley’s wife says that her husband was stung by a bee and had an allergic reaction.  The ER doctor at Saint Clare’s Hospital, Dr. Allen Retirado, diagnosed him with heat stroke.  When Mr. Hensley was later attacked by 30 bees and suffered a severe allergic reaction, he died before ever making it to the emergency room. 

The widow decided to sue the hospital.  Her attorney, Dennis Donnelly, managed to successfully argue that if William Hensley were diagnosed with an allergic reaction to a bee sting, they would have had the nest on their property removed.  And the subsequent attack would have never happened.

Keep in mind that William Hensley’s widow, Melissa, openly acknowledges that she believed her husband had an allergic reaction to one bee sting a month prior to his fatal bee attack.  One that was so severe, that he had to be rushed to the emergency room by a neighbor. 

Mr. Hensley was fine after he received treatment and left the emergency room in July.  He’d suffered no adverse medical consequences for the hospital’s failure to diagnose his allergy, and apparently felt healthy enough to mow his lawn again a month later.  Only this time, it was 30 bees that stung him instead of one. 

No one suggests that Mr. Hensley’s death isn’t tragic.  But to hold a doctor responsible for what the plaintiff says she already knew is tragic as well.  You can’t sue nature when a loved one dies, otherwise there would be 30 yellow jackets being marched into court.  New Jerseys’ doctors, unfortunately, are scapegoated instead.  Lawsuits like this one directly contribute to the crisis which is driving good doctors from New Jersey at an alarming rate.  An award of this magnitude is felt by New Jersey’s entire medical community, as malpractice premiums escalate to the point where it is no longer financially feasible to practice medicine inside the borders of the Garden State.  And it will be felt by New Jersey residents as well as doctors decide to practice elsewhere.  A study by the Council of Teaching Hospitals estimates that we New Jerseyans will be short nearly 3,000 doctors by the end of the decade. 

The $1,600,000.00 verdict proves that in New Jersey, it’s en vogue to hold the doctor responsible en lieu of the Almighty.  Since it’s difficult to name God, or Mother Nature, in a lawsuit, the doctor is at fault for Mr. Hensley’s allergy to bee stings.  (For what it’s worth, the doctors involved, Allen Retirado and Harvey Beckman, say they were never even told about a possible bee sting in the first place).

According to the Star-Ledger report, Dr. Retirado was found 52 percent negligent in the man’s death.  Harvey Beckman, an internist at Sussex Borough hospital, was found to be over 47 percent negligent in a separate confidential settlement with the widow and her attorney.  The $1.6 million verdict included $850,000 in lost wages and a near equal amount for “loss of advice and companionship.”  An additional $5,000 was awarded for pain and suffering prior to his death (and prior to reaching the hospital).   

Thursday, June 10, 2010

Tort Reform and Women's Health: What you should know about New Jersey's medical malpractice crisis and women's access to care

New Jersey’s OBGYNs pay the seventh highest malpractice premiums in the nation, encouraging them to reduce their services or practice out-of-state, where premiums are lower.

90 percent of physicians enrolled in the American Congress of Obstetricians and Gynecologists (AGOG) have been sued at least once.  Merely being named in a lawsuit can force premiums higher for OBGYNS, and the average OBGYN is sued 2.7 over the course of a career.  Physicians, therefore, are required to prepare themselves with sufficient insurance should they find themselves – or others with whom they share a practice or support staff – to be the victim of frivolous litigation.

New doctors wanting to practice obstetrics face disproportionate hurdles.  In addition to student debt, high premiums dictate that new OBGYNs will have to deliver scores of babies each quarter in order to remain financially solvent. 

The fear of being sued is one of the biggest barriers to care in New Jersey.  Nearly 60 percent of OBGYNs have made changes to their practice during the last three years because of the high risk of liability claims.

35 percent of OBGYNs have either decreased the number of high-risk obstetric patients or have ceased providing obstetric care altogether, making it harder for women with high-risk pregnancies to access specialized care.  If this trend continues, New Jersey women can expect to find that they cannot get the prenatal and gynecologic care they need, and many will not be able to find doctors to deliver their babies. 

New Jersey has the highest caesarean rate in the nation.  More than 1/3 of New Jersey babies are now delivered by caesarean section.  OBGYNS frequently site the fear of being sued as a chief reason for this high number. 

On average, New Jersey’s OBGYNs stop practicing at age 48 – an age that was once considered the midpoint of an OBGYN’s career. 

The current gap between doctors and patients in New Jersey is 12 percent.  A study by the New Jersey Council of Teaching Hospitals estimates that New Jersey will be short an additional 3,000 doctors in the next decade unless comprehensive changes are made to our state’s liability system.  If no changes are made, it increases the likelihood that the doctor shortage will reach crisis levels. 

You can listen to Marcus testify in support of A-1982 in the Assembly Health and Senior Services Committee today at 10 a.m. on the Legislature’s website. 

Tuesday, June 08, 2010

Testimony before the Women's Legislative Caucus

The newly formed Women’s Legislative Caucus held a hearing into women’s healthcare disparities in New Jersey.  The bicameral, bipartisan caucus is chaired by Assemblywomen Amy Handlin and L. Grace Spencer, and Senators Loretta Weinberg and Diane Allen.  Below is the testimony I gave to the committee. You can read the Caucus’s statement here.   


Testimony before the Women's Legislative Caucus

By Marcus Rayner, executive director

New Jersey Lawsuit Reform Alliance

Public Hearing: Access to Health Care Services

Monday, June 7, 2010


I want to thank the Women's Legislative Caucus and its co-chairs for the opportunity to testify here today.  As you may know, the New Jersey Lawsuit Reform Alliance (NJLRA) was created in 2007 out of a broad concern among business leaders and professionals in the medical community about the state of New Jersey's civil justice system.  I am very pleased that the Caucus has convened this hearing to look at the various ways that access to care is limited in certain health care services for women in New Jersey.


As the national debate on health-care reform and tort reform unfolds, it is worth noting that here in New Jersey, we have our own health- care crisis under way. And it is driving out physicians, limiting patient access to care and increasing the cost of health care for all of us.


For many existing and aspiring medical students in New Jersey, the dream of practicing specialized medicine faces a significant hurdle: malpractice insurance premiums.  Too many promising medical students are becoming a casualty of our litigious health-care system.  This, in turn, limits the number of specialized medical doctors such as OG/GYNs in our state and eliminates access to care for thousands of New Jersey women. 


At some point in their education, medical students realize that in order to have a solvent future as an OB/GYN, they will have to deliver scores of newborns each quarter just to afford the cost of the high malpractice premium. Rates have skyrocketed for doctors practicing specialized medicine during the last few years. In order to simply maintain a viable practice, many doctors will likely have to see more patients and deliver more babies than any doctor reasonably could without compromising quality of care for patients.


Conversely, many will opt to not treat various patients, such as emergency room or acute care patients, because of the liability that doing so presents.  These decisions are the direct result of the high medical malpractice premiums facing specialty doctors in New Jersey today.


Malpractice insurance costs so much because New Jersey's current civil justice laws are decisively anti-physician. Malpractice awards in New Jersey are not capped, for one, as they are in thirty-two other states. In addition, some New Jersey courts allow cases to be built around weak "junk science" that is often not permissible in other jurisdictions. As a result, New Jersey's courts have become a lottery for those wanting to turn an unfortunate medical outcome into a payday. Physicians, therefore, are required to prepare themselves with sufficient insurance should they find themselves -- or others with whom they share a practice or support staff -- to be the victim of frivolous litigation. As I mentioned, this excessive physician liability can also force many doctors to abandon specialized medicine altogether, leaving many patients without care.


While both federal and state governments bear responsibility for setting civil justice and medical malpractice policy, aspiring physicians in New Jersey are at a notable disadvantage. Medicine bears the distinction of being both business and personal. Why practice specialized medicine in New Jersey when other states, including some of our neighbors, offer much less burdensome alternatives?


In Pennsylvania, for example, punitive damages against individual physicians is limited to 200% of compensatory damages.  Many of you may be familiar with the successful medical malpractice reforms in Texas, which after capping medical malpractice awards in 2003 saw an average 21.3% annual decrease in  medical malpractice premiums in the following four years.  As a result, the number of medical license applications in Texas increased 18% in the four years since the state legislature enacted the caps. (Source, The New York Times, More Doctors in Texas After Malpractice Caps, October 5, 2007).


Mississippi experienced 25% annual increases in medical malpractice premiums prior to their reforms and even created a state insurance pool to offer coverage to doctors.  After their reforms, rates plummeted and the State of Mississippi was able to sell the state insurance pool.


According to the National Conference of State Legislatures, all but 15 states have adopted some limit on medical malpractice awards.  New Jersey must join the majority of states in adopting some reasonable limits on medical damage awards.  Without them, we will continue to force doctors out of our state and we will limit care to thousands of our most vulnerable women and children.

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.

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.

Monday, April 19, 2010

Read NJLRA's Op-Ed in today's Bergen Record!

Tuesday, April 20, 2010
Marcus Rayner is the executive director of the New Jersey Lawsuit Reform Alliance.

AS NEW JERSEY’S unemployment rate hovers around a regionally high 10 percent, our businesses face a stagnant economy coupled with high business costs, and our state and local governments must address significant spending cuts, some may not realize that New Jersey’s economy is taking another serious hit – from frivolous litigation.

According to Forbes Magazine, New Jersey is “one of the worst places to get sued in America.”

The American Tort Reform Association has listed New Jersey in its Top Five “Judicial Hellholes” for the third consecutive year. And that’s not an overstatement: For many high-tech, bio-tech and research-based companies, one frivolous lawsuit can spell financial ruin, and send ripple effects through our struggling economy.

Consider this: Consumers do not have to be defrauded in order to file a lawsuit under New Jersey’s Consumer Fraud Act. They don’t have to ask for a refund before suing in court, either. Warnock Dodge found this out when a customer believed she was overcharged by $40 and immediately marched to court. New Jersey courts also welcome out-of-state plaintiffs.

In one such case, an Alabama resident who claimed a popular acne medication gave him inflammatory bowel syndrome received a $25 million judgment – money he will take with him to Alabama.

Go to complete Op-Ed.

Monday, March 29, 2010

Medical Malpractice Reform in New Jersey

Did you know that there is a viable Medical Malpractice bill in the New Jersey Legislature?  

A-1982/S-760 would:

  • Establish that a provider had a relationship with a patient filing suit;
  • Prevent insurance carriers from raising malpractice premiums based on a mere claim of medical malpractice, unless the physician is found liable in court;
  • Require that physicians and healthcare professionals providing “expert testimony” be licensed in New Jersey;
  • Narrow the window for filing suit to not more than four years after the date of the alleged incident occurred; and
  • Protect volunteer physicians acting in good faith from civil liability.

New Jersey’s doctors face a multitude of challenges.  Frivolous malpractice litigation doesn’t need to be one of them. 

Let Assemblyman Herb Conaway, Chair of the Assembly Health and Senior Services Committee, know that you support this legislation and ask him to post it in committee. 

Thursday, March 18, 2010

Great news for AstraZeneca

The Associated Press reports that a Middlesex County jury sided with the drug maker AstraZeneca in a case in which the plaintiff alleged that his use of the drug Seroquel caused him to become diabetic. 

AstraZenca faces product liability lawsuits involving over 20,000 plaintiff groups, which allege that Seroquel caused them unforeseen harm, despite the drug’s warning label.  The AP also said many cases have been filed in New Jersey, Delaware, and Florida, some of which have been dismissed over questions regarding the qualifications of plaintiffs’ expert witnesses. 

Thursday, February 04, 2010

NJLRA's Testimony at the New Jersey Assembly Bipartisan Leadership Committee Hearing

Testimony Before the New Jersey Assembly Bipartisan Leadership Committee Hearing

By Marcus Rayner, executive director

New Jersey Lawsuit Reform Alliance

Tuesday, February 2, 2010


Good afternoon. My name is Marcus Rayner and I am the executive director of the New Jersey Lawsuit Reform Alliance (NJLRA).  I would like to thank you for holding this hearing today and for the opportunity to appear before you.

In this economy I know that you are all looking for ways to create jobs and encourage economic growth, but that daunting budget deficits and diminishing tax revenues limit your policy options. 

When the state’s leading employers formed NJLRA in 2007, our economy was still relatively strong.  New Jersey was then, and is now, a target for abusive lawsuits, especially by out-of-state litigants.  In fact, 94% of the pharmaceutical mass torts in New Jersey's courts have been brought by out-of-state plaintiffs because of the favorability of New Jersey’s laws to these suits, many of which would not see the light of day in their home jurisdiction.    Our economy is much more challenging today, and the rise in abusive lawsuits experienced by our business community has only made matters worse.  The Healthcare Institute of New Jersey estimates that 1,200 pharmaceutical jobs were lost between June 2008 and June 2009. 

Today I offer some ideas for fair civil justice reform.  Collectively, they will help employers, reduce costs for consumers, and restore New Jersey as a state that welcomes business investment.  Perhaps as important, these ideas present you with policy options that are budget-neutral at a time when we hope to encourage job creation without adding to the State’s budget deficit. 

NJLRA has been working with many members of the legislature, including several who are present today, to identify solutions and submit legislative proposals for consideration:

  • First, New Jersey would benefit from an expanded appeal bond cap.  We have been working closely with Assemblymen Jon Bramnick and Gary Schaer, as well as Senator Ray Lesniak, to introduce a bill that would expand NJ's appeal bond cap to all civil defendants.  Right now, only tobacco companies benefit from a cap on the bonds civil defendants must pay when they lose a trial court judgment and appeal the case to a higher court.  Defendants, like plaintiffs, deserve to appeal a trial court decision that they believe was wrong.  But unlike plaintiffs, defendants in NJ must pre-pay to do so.  This bond requirement, which siphons money that would otherwise be used for ongoing business investments, often forces defendants to settle promising cases or discourages them from exercising their right to appellate review in order to avoid the bond.  A reasonable cap of $50 million - or the full judgment amount, whichever is less, would protect the appellate rights of defendants without harming plaintiffs.
  • Next, New Jersey’s Consumer Fraud Act is in need of reform.  The CFA was originally enacted in 1960 to protect NJ consumers from questionable business practices.  Today, our Consumer Fraud Act is one of the most abused in the nation.  The NJCFA is being widely applied by the courts as a national law to be used for large class actions against our employers.  Today, we are the only state, or one of the only states, whose CFA does the following: NJ’s CFA mandates treble damages; we allow out-of-state plaintiffs to sue in our courts – even if the consumer transaction took place elsewhere; and finally, we do not even require a that consumer has actually been defrauded in order to sue . 
  • Finally, New Jersey's rules of evidence for expert testimony are in need of reform to ensure that only true experts testify in court when medical science is a determining factor in a civil suit.  Junk science in the courtroom distorts justice and leads to unfair verdicts benefiting no one. 

Thank you again for the opportunity to testify today and welcome the opportunity to talk with each of you further about these reforms.

Tuesday, December 29, 2009

A doctor’s nightmare

Malpractice cases take a toll on doctors.  Just ask Dr. Joan Savitsky. 

In yesterday’s New York Times, Dr. Savitsky – a former internist in the Boston area – writes of the personal and professional tribulations she faced after the family of a cancer patient sued her.  Litigation stretched on for over four years.  It ended when the plaintiffs’ attorneys, realizing the case was unwinnable, told them they would have to pay for expert testimony at their own expense. 

The plaintiffs were the children of a relatively young woman she treated for an unexpected and aggressive colon cancer.  Dr. Savitsky writes that she believed them to be coping with complex emotions, which she speculated would include grief, anger, and frustration, and perhaps misunderstanding.  Filing a malpractice suit somehow addressed this.

You can read the full text of Dr. Savitsky’s story here. 

Monday, December 21, 2009

Tort reform is the key to a healthier New Jersey

As the national debate on health-care reform and tort reform unfolds, it is worth noting that here in New Jersey, we have our own health- care crisis under way. And it is driving out physicians, limiting patient access to care and increasing the cost of health care for all of us.

Recently, I spoke to a young man who is studying medicine at the University of Medicine and Dentistry of New Jersey (UMDNJ). A lifelong New Jersey resident who excelled as an undergraduate, he represents the best and brightest our state has to offer. With grand aspirations of becoming a doctor, he enrolled at UMDNJ, hoping to someday practice in his home state. Unfortunately, he has come to realize that his dream of practicing specialized medicine faces a significant hurdle -- and it's not just rotations.

This promising young medical student, whom I will call Jim, has become a casualty of our litigious health-care system. Growing up in a large family fostered Jim's interest in delivering babies, prompting him to study obstetrics. Earlier this year, however, reality hit: Jim has the talent to become an OBGYN, but lacks the bottom line.

"I can't afford it," Jim realized. "I went to medical school thinking that if I worked hard enough, I would be able to practice my specialty of choice. Not being able to become an OBGYN because I can't afford malpractice insurance was the furthest thing from my mind."

CLICK to read full Op-Ed in the Times of Trenton

Tuesday, December 15, 2009


FOR IMMEDIATE RELEASE                                Contact: AnnMarie McDonald

December 15, 2009                                                 (609) 649-3167





Citing a “culture of litigation,” American Tort Reform Association says that excessive litigation has compromised access, affordability of prescription drugs; schools in Atlantic County also hurt.


ATLANTIC CITY, N.J. – A report released today by the American Tort Reform Association (ATRA) places New Jersey’s courts at number 4 in its annual list of “Judicial Hellholes,” with a particularly dire situation in Atlantic County. 

“Every dollar spent defending against a groundless lawsuit is a dollar that won’t be spent on research and development, capital investment, worker training or job creation,” said ATRA President Sherman “Tiger” Joyce.  “Unfortunately for those living in Hellholes jurisdictions during this economic downturn, it can be that much harder to find or keep a job and get critical health care services as employers and doctors are driven away by the  threat of costly litigation.”

“Ninety-three percent of the lawsuits filed against our pharmaceutical companies were from out-of-state litigants, whose cases would never see the light of day in their home jurisdictions,” added Marcus Rayner, Executive Director of the New Jersey Lawsuit Reform Alliance (NJLRA).  “Instead of being the nation’s ‘medicine cabinet,’ the trial bar is turning New Jersey into the nation’s lottery ticket instead.” 

Even more alarming is the impact that excessive litigation is having on Atlantic City’s struggling school district.  The report notes that the Atlantic City School District spent roughly $1.5 million on legal services last year, more than every other school district in the state by a substantial margin.  This school year, Atlantic City has budgeted $1.16 million for its legal services, equating to approximately $184.00 for each student in the district. 

“We have a lot of problems, and a lot of lawsuits… we’re trying to recoup costs for frivolous lawsuits,” said School Superintendent Fredrick P. Nickles. 

The full text of ATRA’s report can be found on NJLRA’s website, http://njlra.org


# # #


The New Jersey Lawsuit Reform Alliance (NJLRA) is a statewide, bipartisan group of businesses, individuals and organizations committed to improving the State’s civil justice system by advocating for legal reforms in the legislature and in the courts. NJLRA believes a balanced civil justice system is critical to ensuring fair and open courts, maintaining and attracting jobs and fostering economic growth in New Jersey. NJLRA is the only organization in New Jersey dedicated exclusively to civil justice reform.

Wednesday, November 04, 2009

Governor Christie

In light of former U.S. Attorney Christopher Christie’s election night victory over incumbent Governor Jon Corzine, we have posted the Governor-elect’s thoughts about civil justice reform below:

“The Christie administration will propose meaningful and fair changes to New Jersey’s legal liability policies to make our state more affordable for consumers and businesses. 

The ease with which lawsuits can be brought in New Jersey is encouraging attorneys from around the country to file lawsuits here.  Consequently, New Jersey residents and businesses must often wait in line behind out-of-state plaintiffs. 

New Jersey’s civil justice system discourages businesses from locating here and gives residents businesses a strong reason to relocate to other states. 

To end the abuse and manipulation of New Jersey’s civil justice system, Christie proposes to:

  •    Make it more difficult for out-of-state plaintiffs to sue in New Jersey courts. 
  •   Make it more difficult to file class action suits for frivolous reasons. 
  •   Prevent the admission of flimsy and dubious testimony offered by expert witnesses. 

NJLRA looks forward to working with both the Legislature and the Christie administration to reform New Jersey’s civil justice laws. 

Friday, October 30, 2009

Next Administration Could Reshape the State Supreme Court

New Jersey voters are preparing to cast their ballots in one of the most hotly contested gubernatorial elections in recent memory.  In addition to the economy and social policy, it is important to note that the next governor will impact each of these – and much more – far beyond a four or eight year tenure in the governor’s office. 

The Star-Ledger’s Mary Fuchs  reports that the next governor will likely appoint four justices to the State Supreme Court.   In a body of seven, these new justices will have enormous power to render decisions impacting the way New Jersey companies do business and doctors care for patients for years. 

Justice Virginia Long will reach the mandatory retirement age of 70 during the next gubernatorial term.  Three others – John E. Wallace, Jr., Roberto Rivera-Soto, and Helen Hoens – will face reappointment hearings. 

In a too-close-to-call election like this one, it’s easy to overlook the impact the outcome will have on the Court, and neither campaign has dedicated advertising to it.  Fairleigh Dickinson University poll director Peter Wooley  may have summed up voters’ individual importance in this election the best.  He told Politicker NJ that “At this point, anyone who says their vote doesn’t count is mistaken.  And no one knows that better than the campaigns.”

So as we prepare for the final weekend of campaign advertising, keep in mind that the Governor’s office isn’t the only branch of government that will be effected by this election.