169 posts categorized "The Courts"

Wednesday, July 27, 2011

Is suing the bar a new drunk driving trend?

It’s been fifteen months since we brought you the case of Voss v. Tranquilino.  You’ll recall that the plaintiff in this case, Ocean County resident Fredrick Voss, had a blood alcohol level nearly two and a half times the legal limit when he plowed his motorcycle into a car (“Drive drunk, hurt yourself, and blame someone else, 4/29/10).  He later sued Tiffany’s Restaurant, where he had consumed the alcohol, for his injuries.  The New Jersey Supreme Court agreed to hear the case to determine whether a 1997 Motor Vehicle law, which barred drunken drivers from collecting damages for their injuries, trumped an earlier law allowing those who suffer a loss (usually the innocent involved) to sue the licensed beverage server. 

In the year since, the Court actually ruled in favor of Voss, essentially giving a green light to a person charged with a DUI to sue a tavern owner for any injuries they sustain in the process of driving drunk (an illegal act, last I checked). 

It doesn’t stop there, either.  The parents of a young man who was killed after driving home from a popular Hamilton bar are now suing the establishment for wrongful death.  The loss of a child is always tragic, irrespective of the means.  But usually when “drunken driver” is mentioned in conjunction with “wrongful death,” it’s the family of an innocent motorist who is suing the drunk driver – not the family of the drunk driver suing the bar. 

What we’re seeing now, in the fifteen months since the New Jersey Supreme Court decided to hear the Voss case, is a disturbing push to use New Jersey’s civil justice system to compensate criminal behavior.  Assemblyman John Amodeo introduced legislation to overturn the Court’s decision in Voss v. Tranquilino¸ and prevent drunken drivers from suing others for injuries they cause themselves.  The bill number is A-4228. 

It’s unfortunate but necessary that the Legislature clarifies that New Jersey’s legal system should not reward illegal behavior.   

Tuesday, July 26, 2011

Read NJLRA’s Letter-to-the-Editor in Saturday’s Star-Ledger

Warren Township whistle-blower suit exposes NJ's problematic legal climate

A jury recently awarded a $2.5 million judgment against Warren Township, population 16,000, over its handling of a report the council received about an intoxicated municipal judge on the bench (“The costly consequences of dismissing a whistle-blower,” July 18). With a total budget of $16 million, this is a surcharge residents will feel for years to come if it isn’t overturned on appeal.

Read more.

Thursday, July 21, 2011

Have you voted yet?

Should drunk drivers be able to sue bartenders for serving them alcohol?  Vote here!

Monday, July 18, 2011

Judgment 1/8th the size of a New Jersey town’s budget rendered

Even the plaintiff’s lawyer thinks it’s crazy. 

A state jury recently hit Warren Township, NJ (Somerset County) with a $2.5 million judgment over its handling of a municipal judge who came to work after consuming alcohol and prescription drugs. 

The judge, Richard Sasso, was reported to Warren’s town council by Michele D’Onofrio, who was Warren’s municipal prosecutor.  The Council chose not to take action, so D’Onofrio reported Sasso to the state Supreme Court’s Advisory Committee on Judicial Behavior.  He was barred from serving as a municipal court judge for life.  And she was dismissed.      

D’Onofrio sued and won.  The award breaks down as $552,000 in economic damages; $824,000 in punitive damages; and D’Onofrio’s attorney’s $1.2 million request for legal fees. 

“We would have settled for a fraction of that,” Bob Braun quotes D’Onofrio’s attorney, Nancy Erica Smith as saying. 

Municipal insurance doesn’t cover punitive damages, so for a town with a $16 million budget, the $2.5 million judgment is a hefty price for taxpayers to foot – especially when the Township had the opportunity to address it before it reached the Supreme Court’s Advisory Committee.    

The bad behavior of Sasso - who earned $200,000 a year by racking up part-time gigs in Warren, Bridgewater, Watchung, and Bound Brook – is a lesson on how taxpayers end up paying for the actions (or in this case, inactions) of others.  (See Braun’s piece in the Star-Ledger, “Warren Township melodrama highlights suburban mismanagement,” 7/18/11). 

Warren Township is appealing the decision.  Unless New Jersey acknowledges the need to reform its civil justice system, a single lawsuit – even a meritorious one – will have the power to influence a municipality’s budgetary priorities for years to come. 

Friday, July 15, 2011

Session Recap

It’s been a quiet week for civil justice reform.  Unsurprising, since failed attempts to override some of the Governor’s vetoes, school funding, and speculation over which congressional district will be eliminated during redistricting have dominated New Jersey politics.

 To recap the 2010-2011 Session thus far, NJLRA supports the following bills:

  Bills

Wednesday, July 06, 2011

Read NJLRA’s Op-Ed in today’s Star-Ledger

Legislation is necessary to limit suits in New Jersey

By Marcus Rayner

The New Jersey Supreme Court recently issued a decision allowing a motorcyclist to sue a restaurant that served him alcohol after he was injured when he crashed into a car while driving drunk.

The case stems from a 2006 incident in which 46-year-old Brick resident Fredrick Voss decided to drive home after drinking at Tiffany’s restaurant in Toms River. He pleaded guilty to a DUI charge after he rode the motorcycle through a red light and into a car. His blood alcohol level was nearly 21⁄2 times the legal limit.

Pleading guilty to a DUI charge might prompt most people to accept responsibility for endangering themselves and others. In a nod to how notions of personal responsibility — and our courts’ appetite for lawsuits — have changed, Voss took to court Tiffany’s restaurant and Kristoffe Tranquilino, the driver of the car he hit.

Link

Tuesday, July 05, 2011

APP: Legislation Would Limit Suits by Drunken Drivers

Kathleen Hopkins wrote about A-4228 in the Asbury Park Press over the weekend.  This is the legislation that would prevent drunken drivers from suing restaurateurs who serve them alcohol from injuries they sustain while driving drunk (a la Voss v. Tranquilino). 

We’ll link to A-4228 once it’s available on the legislative website

Thursday, June 30, 2011

Legislation to Overturn Voss v. Tranquilino Decision Introduced

NJLRA issued the following statement regarding A-4228, which would prohibit drunken drivers from suing restaurateurs for injuries they sustain while driving under the influence of alcohol:

"The New Jersey Supreme Court's decision in Voss v. Tranquilino allows a convicted drunk driver to use our court system to profit from the poor choices he made, at the expense of New Jersey's business community.  Common sense is being downgraded to the point where drunk drivers can relinquish personal responsibility by collecting monetary damages from the restaurateur serving them drinks. 

"This decision was a kick in the gut to New Jersey's restaurateurs.  A-4228 is a first step toward protecting our business community from the Supreme Court's misinterpretation of the law. 

"The Court clearly defied the will of the legislature when issuing this decision, and I encourage leadership in both houses to consider A-4228 as soon as possible. 

The case stems from a 2006 incident in which Fredrick Voss crashed his motorcycle into a car and injured himself.  His blood alcohol level was nearly two-and-a-half times the legal limit.  He pled guilty to a DWI charge but later filed suit against Tiffany's Restaurant in Toms River under the Dram Shop Act.     The New Jersey Supreme Court sided with Voss in a 5-2 decision, stating that existing law does not explicitly bar drunken drivers for suing for their own injuries. 

The legislation is sponsored by Assemblyman John Amodeo (R- Atlantic County). 

Wednesday, June 29, 2011

A sedentary lifestyle kills. But you might have a workers' comp claim if your job makes you lethargic.

A desk job might be lucrative to some, especially the unemployed.  But if you’ve been lethargic or sedentary for a while, you might have a worker’s compensation claim, according to a New Jersey appellate court. 

And with so many employees working sedentary desk jobs, this decision can have an enormous impact on New Jersey’s businesses.

In this case, she may have had a sedentary lifestyle, weighed more than 300 lbs, had an enlarged heart, and recently begun taking birth control pills, but the husband of Cathleen Renner said that it was her job that killed her.  Renner, a 25 year-employee of AT&T, died from a blood clot that formed in her leg and lodged in her lung.  According to an AP report, she had been working overnight in her home office to finish a project for the company the night before.   Her doctors say the clot likely developed during the time when she was working overnight in her home office.  And that means it’s her job’s fault. 

“Sitting at your desk is a risk in and of itself,” said Patrick Caulfield, the attorney representing Renner’s husband.  “It seems to be the No. 1 risk factor.” 

Of course, that’s a risk many of the nearly one-in-ten unemployed New Jerseyans would be all too happy to assume. 

The Court acknowledged that Renner “led a sedentary life in and out of work,” but she was “even less active when behind her desk.”  Well, um, yeah.  Just like you’re less active when you’re sitting in a car than running a marathon. 

AT&T was mum on whether it would appeal the decision to the State Supreme Court.  If AT&T appeals and loses, the Court may be paving the way for a litany of workers’ compensation claims – and a higher unemployment rate. 

Tuesday, June 28, 2011

Patterson nomination confirmed by the Senate

Anne Patterson’s nomination to the New Jersey Supreme Court was approved late last night by the Senate, by a vote of 36-0

Senators Madden and Lesniak abstained, while Senator Stack was not present at the time the vote was recorded.  Senator Ciesla was absent. 

Patterson will assume the seat being vacated by Justice Roberto Rivera-Soto this fall.   

Wednesday, June 22, 2011

The Wal-Mart decision’s impact on future class actions

The 5- 4 decision handed down by the U.S. Supreme Court in Wal-Mart v. Dukes, et al. is likely to impact the size of class action lawsuits going forward. 

The issues are real, but from the beginning, the case was a stretch: a class action lawsuit against Wal-Mart on behalf of its 1.6 million female employees in the United States since 1998.  One-hundred twenty of these plaintiffs are named, many of whom give hard-to-dispute examples of gender based discrimination:

  • When a female employee with five years at Wal-Mart and a Master's Degree asked her department manager why her pay was less than that of a just-hired 17-year-old boy, the manager said: "You don't have the right equipment. You aren't male, so you can't expect to be paid the same."
  • A male department manager told a female employee that male employees will always make more because "God made Adam first, so women would always be second to men". 
  • A store manager told Christine Kwapnoski that he gave a male associate a larger raise because he had a "family to support". Kwapnoski says this was a common refrain from Wal-Mart managers. She was also told that she needed to "doll-up" and "blow the cobwebs" off her make-up.        
  • Betty Dukes, a 61-year-old greeter at a Wal-Mart store in Pittsburgh, CA, joined the company in 1994 as a part-time cashier making $5 an hour. She says the company failed to give her more responsibilities, training, and promotions on repeated occasions because she's a woman. After joining the lawsuit, she found out that two men, who had been hired long after she was, were paid more as greeters. In 2003, after nine years of employment at Wal-Mart, Dukes was earning just $8.44 an hour. 

If you happen to be female and not discriminated against, however, it didn’t matter.  You were included irrespective of your knowledge or consent.  A class of 1.6 million against a major corporation is more attractive to plaintiffs’ attorneys than 120 individual lawsuits, after all. 

And this was Dukes’ undoing.  The demonstrable first-hand accounts became anecdotal, because plaintiffs’ attorneys now had to demonstrate that Wal-Mart had a companywide discriminatory policy.  That’s 3,400 stores in all corners and subcultures of the United States. 

 Statisticians pointed out that fewer women were promoted, and that as of as of 2006, women made up more than 70 percent of Wal-Mart’s hourly employees, but fewer than 1/3 held managerial positions.  Justice Ruth Bader Ginsberg noted this in her dissenting opinion.  But the question before the Court was whether the women “had suffered a single wrong that allowed them to sue Wal-Mart as a block.”  This would be a hard sell, because many if not most of the company’s personnel procedures were decided locally and regionally, not at their corporate headquarters in the Midwest. 

With a class of this size, determining why male-to-female ratio is so skewed is nearly impossible, let alone trying to defend against it.  There are likely many reasons, and arguably some which might be independent of gender-based discrimination.  And then there’s the irony of women who may not have experienced gender-based discrimination and are promoted at Wal-Mart, infrequent but in existence, who are included in the class nonetheless. 

The Economist also pointed out the following:

More surprising than the ruling on this question was the 9-0 ruling on another procedural point. The plaintiffs sued under a rule designed to give an entire class “injunctive relief,” i.e., an order that the defendant stop bad behavior. They also asked for back pay under that rule, which they may do only if the back pay is “incidental.” All nine judges agreed that this rule, intended to strike down discriminatory policies, was inappropriate to determine more than a million different pay claims. They said that the women must instead try for class status under a more restrictive rule that requires the issues binding the class not just be common, but that their commonality predominate, alongside other restrictive conditions. The plaintiffs offered a “trial by formula” in which a selection of plaintiffs would have their cases heard, and the results applied to the class. The court ruled unanimously that this would deprive Wal-Mart of defenses in individual cases that it was entitled to.

As a result of the Court’s ruling, we’re likely to see fewer far-reaching class action lawsuits, with a judicial preference for smaller and more specific evidence-based claims.  One size doesn’t fit all. 

All the more reason for individuals – not the trial lawyers – to stand up and be counted. 

Tuesday, June 14, 2011

NJ Supreme Court Update

In case you missed it, Edwin Stern, who was temporarily appointed to the New Jersey Supreme Court by Chief Justice Stuart Rabner following the Justice Wallace controversy, retired last week after reaching the mandatory retirement age of 70. 

Justice Rabner has temporarily appointed Judge Dorothea O’C Wefing from the Appellate Division to serve on state’s the high court. 

Monday, June 13, 2011

Scam exposed: plaintiff hired a lawyer before buying product!

We already know that New Jersey is infamous for its abuse of the Consumer Fraud Act.  The one where a plaintiff doesn’t have to actually be defrauded in order to collect damages, lets attorney’s fees inflate nearly unchecked, and feeds the ‘litigation tourism’ industry by default.  Yes, that infamy. 

Fortunately, civil justice seems to have come down against trial lawyers in one case.  A federal court in New Jersey recently denied class action status for anyone who purchased “all natural” Arizona Iced Tea without realizing that it had high fructose corn syrup.  The problem, according to a report in Forbes Magazine, is that plaintiff Lauren Cole consulted with an attorney before purchasing the product.  And when you’re trying to seek class certification on behalf of a bottomless number of people, it helps to have at least one person file a claim. 

 

Excerpt, pages 3 – 4 of the decision:

The factual and procedural record in this case is confused on at least one key question: whether Plaintiff’s qualifying purchase occurred before or after she concluded that Arizona beverages containing HFCS were not natural as labeled…

…During the course of discovery of this case, Plaintiff produced for Defendants a retainer agreement she signed in anticipation of this lawsuit. (Donovan Decl. Ex. C.)  In the agreement, Michael Halbfish, Esq., one of Ms. Coyle’s current attorneys in this litigation, agreed to represent Ms. Coyle in an anticipated class action seeking damages and injunctive relief against the Defendants in this matter for their deceptive

practices in marketing beverages containing HFCS as “all natural.” (Id. ¶ 1.2.)  The agreement was signed on August 9, 2007, more than seven months before Plaintiff has alleged that she was misled by defendants’ “all natural” labeling in her purchase on March 30, 2008.  (Id. ¶ 10.1.)

Tuesday, June 07, 2011

NJLRA live: Rayner on FOX News Channel

NJLRA Executive Director Marcus Rayner sat down with Gretchen Carlson to talk about how the New Jersey Supreme Court's decision in Voss v. Tranquilino will impact the Garden State.  

Monday, June 06, 2011

Rayner, live

In case you missed it…

NJLRA's Marcus Rayner was on Fox & Friends this morning with Gretchen Carlson to discuss the New Jersey Supreme Court’s decision in Voss v. Tranquilino and what it means for Garden State businesses and bar patrons.  We’ll post the clip as soon as we get it. 

Friday, June 03, 2011

Public weigh-in on Voss v. Tranquilino

The Asbury Park Press ran a story yesterday about the Supreme Court’s decision in Voss v. Tranquilino, which gave a green light to drunk drivers suing establishments for injuries they sustain while driving drunk (Court: Brick man can sue Tiffany's Bar for over-serving him/ Hopkins).  Here are excerpts of some of my favorite comments as of this morning:

speedkillsu

4:43 AM on June 2, 2011

Well that officially just killed that industry ...last call 9;00pm ........

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tizziec@optonline.net

6:49 AM on June 2, 2011

Idiots in THIS state will start driving drunk on purpose hoping to get rich when they sue the bar after..

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ort63

6:56 AM on June 2, 2011

Sounds like another self serving ruling by our court system. the more we are allowed to sue the more the lawyers make. when is it enough, when are we to be held accountable for our own actions. you want to save the state and the taxpayers some money? hold people responsible for their own actions and do away with these waste of money lawsuits

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16317

7:02 AM on June 2, 2011

So give the person a huge amount of money for being stupid. I think the bar should have the right to counter sue. Why should someone lose their business for someone else being irresponsible ?

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Overtaxed08527

7:04 AM on June 2, 2011

In Pennsylvania, the voters elect their judges, including their state Supreme Court justices. Sitting judges need to face periodic retention votes in order to keep their job. Funny thing -- you don't see too many Pennsylvania judges acting like legislators (e.g. the Abbott decisions) or otherwise reaching idiotic decisions as they did in the case mentioned in this article.

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sancam

7:15 AM on June 2, 2011

Are you kidding me? You have one too many drinks, full well knowing it's against the law to drink and drive (you just haven't been caught in the act yet), you go out and then get in to a serious accident (good thing you didn't kill someone else) and then you're going to hold the establishment responsible? That's like saying that I can bring suit against an eating establishment for making me FAT by overfeeding me because I did not have the sense to stop eating. Talk about a litigious society? I thought the idea was to cease with the frivolous lawsuits that are costing the rest of us a fortune.

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077734

7:15 AM on June 2, 2011

do we need to go back to prohibation [sp] because humans no longer take blame for any actions or free choices they make?

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emtwraith

7:09 AM on June 2, 2011

You have to be kidding me..., this should be like the Son of Sam law where you can not profit from your crimes

Thursday, June 02, 2011

Patterson nomination approved by Senate Judiciary Committee

 Nominee received bipartisan support from Senate Panel

Citing her temperament and diversity of experience, the Senate Judiciary Committee approved the nomination of Anne Patterson to the New Jersey Supreme Court.

Patterson declined to speak in-depth about ongoing matters before the Court, but said she fully appreciated the distinct roles of an activist and a judge. 

"Clearly you have the requisite skills to serve in this position," said Senator Nicholas Scutari (D-Union), who chairs the committee.

Senator Raymond Lesniak (D-Union), who previously cited concerns about the Court's lack of racial diversity, voted against Patterson’s nomination.

Patterson, 52, was originally nominated in May 2010 by Governor Chris Christie to fill the vacancy left by Justice John Wallace, whom he did not renominate for tenure. She was ultimately nominated to fill the anticipated vacancy left by Justice Roberto Rivera-Soto, who announced that he will not seek tenure.

Wednesday, June 01, 2011

NJ Supreme Court finds that intoxicated patrons can sue businesses for injuries they sustain

Last year, Fredrick Voss made headlines for suing a Toms River restaurant for injuries he sustained after crashing his motorcycle while intoxicated.

Today, the Supreme Court ruled in favor of… Voss!  Only Justices Albin and Rivera-Soto dissented. 

Marcus Rayner, executive director of the New Jersey Lawsuit Reform Alliance (NJLRA), issued the following statement in response to the New Jersey Supreme Court’s decision, in Voss v. Tranquilino, which upheld an appellate court decision to permit persons convicted of a DUI offense to sue restaurants for injuries they cause to themselves:

"The Court today has once again defied the will of the legislature to the detriment of business and common sense in New Jersey.  The legislature sought, in plain language, to bar suits against bars and restaurants by intoxicated patrons under the motor vehicle laws of this state. Today drunk drivers can minimize personal responsibility for their actions and sue the restaurateurs of New Jersey for serving them drinks.

“Common sense tells us that pleading guilty to driving while intoxicated shouldn’t legally transfer responsibility from one party to another.  Adults who choose to break the law and endanger others should not have the ability to use our civil court system to collect monetary damages at the expense of New Jersey’s business community. 

The case stems from a 2006 incident in which Fredrick Voss crashed his motorcycle into a car and injured himself.  His blood alcohol level was nearly two-and-a-half times the legal limit.  He pled guilty to a DWI charge but later filed suit against Tiffany’s Restaurant in Toms River under the Dram Shop Act.   

The Court effectively upheld an appellate court's ruling, which found that an intoxicated motorist can sue a bar or restaurant for their own injuries resulting from being overserved alcohol at that bar or restaurant, even if they plead guilty to a DWI charge.  The Court upheld the notion that the Dram Shop Act (which established this liability for restaurants, though it was typically exercised by those innocently injured) supersedes motor vehicle law in NJ, which holds that drunk drivers may not sue the bar or restaurant.

A copy of the Court’s decision can be found on NJLRA’s website.

Tuesday, May 31, 2011

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.”   

Monday, May 23, 2011

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. 

Tuesday, May 17, 2011

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.   

Wednesday, May 11, 2011

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.”

Tuesday, May 10, 2011

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.

Wednesday, May 04, 2011

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. 

Monday, May 02, 2011

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.

Tuesday, April 26, 2011

Here’s something NJLRA and the trial lawyers can agree on

“New Jersey is, in many ways, ground zero for mass tort in the US, with the majority of major drugmakers headquartered in the state.”

That’s where the accord stops.  We celebrate the jobs, innovation, and life-saving drugs that our nation’s “Medicine Chest” generates.  Trial lawyers are celebrating Accutane lawsuits, 3,100 strong, which were consolidated in Atlantic County Superior Court.   

We’ve written about the popular acne drug Accutane extensively.  It’s now off the market, due in large part to the cost of the settlements its manufacturer has had to pay. 

Calling our state’s largest industry “ground zero for mass tort” isn’t exactly the encouragement New Jersey business owners and entrepreneurs need during these economic times.  But to the detriment of everyone else, the only industry the trial bar is concerned with seems to be ‘litigation tourism.’ 

Tuesday, April 19, 2011

Budget break. What’s a New Jersey Tort Reformer to do?

One of the most appealing aspects about tort reform is that it has the power to spur economic growth while being budget-neutral. 

That said, the legislative “budget break” – which is the period between the end of March and June when the Legislature is in recess while the Assembly and Senate Budget Committees meet to finalize the next fiscal year’s budget – can seemingly push tort reform to the back burner. 

Fortunately, there are some things tort reformers can do:

Take a look at your municipal budget.  How much money is your town or city spending on litigation costs?  It’s probably much higher than you think.  Could some endangered local government service be spared if its litigation tab weren’t so high?   Perhaps it’s worth mentioning at your next town council meeting, especially if a lot of cases are referred to expensive private firms.  You’ll be happy you spoke up when your next property tax bill is due. 

Review tort reform measures that were recently introduced.  Senators Jennifer Beck (R-Monmouth) and Loretta Weinberg (D-Bergen) recently introduced S-2800, which adds an additional protection for doctors to two of the proposals in S-760/A-1982.  The new bill addresses protecting a doctor from having his or her name linked to a malpractice suit prematurely.  It also provides protections for volunteer physicians acting and good faith and prevents doctors’ insurance premiums from automatically increasing when a lawsuit is filed.

Assemblyman John Burzichelli (D-Gloucester) also introduced several bills in late 2010 which would protect local governments from liability in certain instances where whether is to blame.  The bills were endorsed by the New Jersey League of Municipalities, which you can read about here

See where redistricting has left you.  Are you in a new legislative district?  Use this as an opportunity to educate your new legislators on the importance of a business-friendly climate in New Jersey.  Unless they live under a rock, they’ve heard this before.  But they might not have thought about tort reform as a means to achieving economic growth.  You can check the new legislative map here to see if your municipality has been moved to a different district.

In sum, the budget break is a great time for tort reformers to connect the dots between economic growth in Trenton and municipal and family budgets at home.  It’s a great way to keep up the momentum and learn more about your community at the same time. 

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.

Tuesday, March 29, 2011

Read NJLRA’s op-ed in the Home News Tribune & Courier News

Lawsuit abuse a continuing drag on NJ business

By Marcus Rayner | March 29, 2011

“From a college student suing a Chinese restaurant for soup she spilled on herself (Somerset County), to a drunken motorcyclist who drives into a parked car and sues a restaurant (Ocean County), lawsuit abuse has an economic impact on businesses in every corner of the state. Every dollar spent fighting nonsense lawsuits is a dollar not spent on innovation or job creation, and it doesn't need to be this way.”

 Several hundred miles from here, Illinois business owners are learning about a place with an abundant supply of workplace talent and a high-quality lifestyle sure to make any entrepreneur envious. Weary from crippling tax hikes, a labor shortage and a shrinking consumer base, Illinois business owners can only dream about this land of milk and honey: New Jersey.

"Well-educated, diverse talent pool," reads the ad, placed by New Jersey Gov. Chris Christie. Want to start a business? "Innovative financing, incentive and assistance programs. Exceptional quality of life."

The catch? Here in New Jersey, businesses are vulnerable to lawsuit abuse. Everything the ad says about New Jersey is true. Christie's efforts to improve the business climate in New Jersey, combined with our state's existing assets make New Jersey fertile grounds for entrepreneurship. His outreach to the national business community is both constructive and sorely needed as we seek to reclaim our economic footing here in New Jersey. And business retention as well as recruitment will be critical to our economic growth over the next decade, a point that leaders in both political parties have made.

Click here to read entire piece.

Thursday, March 24, 2011

Ocean County Dram Shop case is heard by N.J. Supreme Court

You may recall LRW’s post last year about Voss v. Tranquilino, A-110-09 (“Drive drunk, hurt yourself, and blame someone else,” 4/29/10). 

Frederick Voss, who rode his motorcycle into a car driven by Kristoffe Tranquilino after leaving Tiffany’s Restaurant in Toms River drunk, sued both parties for the injuries he caused himself.  Claims against Tranquilino were dismissed, but the claims against Tiffany’s were allowed to proceed. 

Arguments in the latter case were heard by the New Jersey Supreme Court last week. 

I don’t need to reiterate the perils of driving while intoxicated or failing to accept responsibility for one’s actions, or the ridiculousness of suing for injuries you caused yourself.  Ruling in Voss’s favor would not only send a bad message, but would ultimately shift responsibility to the establishment and not the individual.  It would also likely result in higher insurance prices for the restaurant industry, which usually translates into higher prices as well. 

Voss v. Tranquilino’s path to the NJ Supreme Court

 Before the Court:  Drunken drivers cannot sue an insurance company for damages; however, can drunken drivers injured in accidents file a claim against the establishment which served them liquor?

1987 – The New Jersey Licensed Alcoholic Beverage Fair Liability Act, N.J.S.A 2A:22A-1 to -7 is enacted (Also known as the “Dram Shop Act”)

The Act prohibits liquor establishments from serving patrons they know, or should have known, are intoxicated.

1997 – Insurance law amendments enacted, N.J.S.A. 39:6A-4.5(b)

A driver convicted of DWI in connection with an accident “shall have no cause of action for his or her injuries.”

2002 – Camp v. Lummino, 352 N.J. Super. 414 (App. Div. 2002)

Appellate panel decided that immunity did not apply in a host-liability case, allowing a claim by an underage drunk driver to proceed with a claim against the homeowner of the place where he had been drinking.

2004 – Caviglia v. Royal Tours of America, 178 N.J. 460 (2004)

Court upholds N.J.S.A. 39:6A-4.5(a), which bars any “cause of action for recovery of economic or nonecomonic loss” to the driver of an uninsured vehicle who is injured in an accident.

2009 – Voss, intoxicated, causes an accident with Tranquilino, a motorist

 Voss is injured.

2010 – Voss files suit against both Tranquilino and Tiffany’s, where he had been served alcohol prior to the incident

Ocean County Superior Court Judge John Peterson dismisses claim against Tranquilino, citing the 1997 amendments.  The claim against Tiffany’s is allowed to proceed because they did not repeal the Dram Shop Act.  Tiffany’s appeals.

2011 – Voss v. Tranquilino reaches the NJ Supreme Court

The restaurant’s attorney argues that the 2004 case should guide the Court’s decision, and the Legislature revoked the ability of a drunk driver to sue the establishment that served him with the 1997 amendments. 

Monday, March 21, 2011

Honey, did you hear that?

Next time you hear a noise in the middle of the night, you might want to think twice before asking your partner to investigate. 

That’s because a New Jersey Appellate Court recently ruled that asking for help in such a situation confers a “duty of care,” and if your friend/neighbor/spouse/random passerby is injured or killed while checking on that noise, the responsible party is… you. 

Yes, you.

This decision stems from a 2003 incident in Irvington, New Jersey.  Jean Robert Vertus was wrapping up with a client in his financial services office in the city, when the pair heard something in the building.  Vertus exited through a side door and went to a the home of a nearby friend, Cosme Novaly.  The client, Naitil Des ir, did not. 

In an apparent state of panic, Vertus told Novaly that “there was “something going on” in his building. 

Instead of calling 9-1-1, Novaly decided to see what was going on at the building. 

Minutes later, Vertus heard gunfire.  He ran back to the building, where he found Novaly on the sidewalk bleeding to death.  Des ir was also shot and killed. 

Novaly’s estate later sued Vertus.  They alleged that Vertus had a “reasonable duty of care” because he asked Novaly for “help in circumstances he knew or should have known would expose Novaly to risk of injury.”  Essex County Superior Court Judge Michael Casale dismissed the family’s lawsuit on summary judgment, and they appealed. 

The lawyer for the Novaly family said that Vertus should have taken steps to ensure Novaly’s safety.  The appellate panel said that Vertus “knew or should have known” that Novaly could be exposed to danger, and had a duty to warn him. 

So, before asking someone to walk you to your car, see who’s outside, or find out the source of a noise, remember to shout “Please note that you might be in danger if you come to my aid.  You have been warned,” in order to shield yourself from liability.    

“Help, I hear something,” just doesn’t cut it. 

 Case: Estate of Novaly v. Vertus.

Wednesday, March 16, 2011

New Jersey woman bummed over losing lottery numbers is in the running for “Ridiculous Lawsuit of the Month”

The Record’s Merry Firschein reported that Rakel Daniele of Fort Lee thought she won a quarter-million dollar “Mega Millions” lottery prize, only to find out that WABC called the wrong winning numbers.  WABC called 1, 2, 3, 4, 5, and Mega ball 12.  Daniele had all of these, minus the Mega ball number.  As it turns out, the winning ticket on June 19, 2009 would have read “4, 9, 12, 16, 46.”    

Instead of shouting expletives and getting on with life, Daniele is seeking $75,000 from WABC-TV, the Walt Disney Corporation, and an unidentified “Jane Doe.”  The lawsuit is now in federal District Court in Newark.  (Seriously). 

In addition to being “severely damaged” by relying on “false and incorrect” lottery results, the station added insult to injury when it rebroadcast the wrong numbers a second time.  Her complaint says that WABC went “beyond all possible bounds of decency, and were atrocious, and utterly intolerable in a civilized community.”  (Really).

Call me a cynic, but what I think goes beyond all possible bounds of decency is that a person would waste the court’s time and resources because she’s bummed.  Really. 

Nevertheless, you can vote for the most ridiculous lawsuit of the month at Institute for Legal Reform’s Website, http://www.facesoflawsuitabuse.com/poll/

Friday, February 25, 2011

Caught on Tape: “Some people fake slip and falls for a living.”

Abc_gma_leamy_110223_me
Fraudulent slip-and-fall duos have become so pervasive in the last three years that many stores are investing in hidden cameras to catch the perpetrators in the act. 

ABC’s Elizabeth Leamy reports on the spike in suspicious slip and fall claims.  Some of what the camera catches is amazing – from a man who buys a hot dog, then places it in a store isle so his accomplice can intentionally slip, to a woman who fixes her hair before lying down in artificial distress. 

The National Insurance Crime Bureau says that “suspicious claims” are up 24 percent from 2008. 

Leem notes this number could be even higher, because many businesses quietly pay off these claims to make them go away.  Even when fake falls are caught on tape, “fake slip and falls still have the effect of driving up prices for all of us,” she says. 

Jim Quiggle of the Coalition Against Insurance Fraud says that indeed, “some people fake slip and falls for a living.” 

 You can watch the report here, via ABC’s website

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

Excerpt:

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.   

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.

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

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. 

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

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?

Wednesday, December 15, 2010

New Jersey’s still a relative “Hellhole”

The American Tort Reform Association (ATRA) released its annual “Judicial Hellholes” report for 2010/2011.  Marcus Rayner spoke with NJ 101.5 about how this reputation continues to stifle economic growth in our state, and particularly impacts New Jersey’s job-wielding pharmaceutical industry

An excerpt:

Marcus Rayner, Executive Director of the New Jersey Lawsuit Reform Alliance, explains why the report specifically names Atlantic County. He says the New Jersey Supreme Court has chosen to consolidate the Mass Tort litigation in the pharmaceutical industry in Atlantic County under one judge, Judge Carol Higbee, who has experience here. Unfortunately, her rulings have been inconsistent and often against he pharmaceutical industry." 

Rosetta Key’s report can be found on 101.5’s website.  The Hellhole report can be found on ATRA’s website. 

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.

Friday, October 29, 2010

Have a happy, safe, and lawsuit-free Halloween!

I pulled some memorable Halloween-related lawsuits in honor of the holiday this weekend.  While you’re dodging crazy goblins and ghouls, you might want to keep a watchful eye for crazy lawsuits, too. 

The Haunted House was too scary.  Yep, it was filed by an adult against a large company.  The Plaintiff said that the Universal Studios attraction caused her “mental anguish” and “extreme fear.” 

Maryland lawsuit over Halloween fundraiser is a real scream.  This is a recent case actually going before the courts in the Old Line State.  Your Halloween fundraiser two hours from my Halloween fundraiser might scare patrons away.  Time to call in the courts.  

And my personal favorite, posted by Robert on the Insurance Blog: The Only Thing Scarier Than Halloween? A Trick-or-Treater's Liability Lawsuit

Robert talks about how to protect oneself from the “overzealous trick-or-treater” whose parent happens to be a personal injury lawyer. 

Jack o lantern

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). 

Thursday, October 14, 2010

The legal defense line-item

Which is the best way to spend taxpayers’ money?  Your choices are the following:

  • $100,000 for a sixth-grader needing to transfer schools because of an allergy to cats on the premises;
  • $60,000 for an Arizona tourist who fell on a dilapidated sidewalk;
  • $650,000 to a psychiatric patient who gouged his eyes out

You may be tempted to say “none of the above,” but unfortunately, all of the above had their day in the Washington, D.C. legal system.  The sixth-grader’s $100,000 lawsuit against the government resulted in a $7,500 settlement for her family, with undisclosed legal costs for the District.  The Arizona tourist and psychiatric patient, however, received aforementioned settlements at taxpayer expense. 

Washington, D.C.’s economy is stronger than many cities of comparable size and its crime rate is slowly declining, but it’s hard to deny that $8.5 million would help quench the District’s charities and nonprofits’ thirst for coveted public funding.    

In an insightful piece in the Washington Post, Paul Schwartzman notes that the District paid out more than $50 million in legal settlements between 2007 and 2009.  Part of the taxpayers’ high tab is due to the District’s reluctance to settle cases early.  Another is derived in legitimacy, such as a tragic police mistake which cost two children their lives.  But, finally, a big reason is that D.C. has an abundance of lawyers.  As the District’s attorney general, Peter Nickles, puts it in Schwartzman’s piece, “There are more lawyers per capita in this city than any other city in the world.  And what do lawyers like to do?”

Evidently, they like to sue themselves.  All of the District’s residents underwrite these costs with their tax dollars and can appropriately cringe.  But plaintiff’s attorneys can look toward lawsuits against the government with confidence, because unlike the majority of the District’s residents, they see a high ROI rather than a reduction in services.  The lawsuit industry is indeed alive and well in our nation’s capital. 

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

Monday, September 27, 2010

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

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

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

Here are some of my favorite comments so far:

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

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

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

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