Lawsuit Reform Watch

Legislative update: Social media and statute of limitations

The General Assembly is scheduled to consider changes requested by Governor Christie to the so-called ‘Facebook bill,’ which would prohibit employers from asking for the passwords and login information of current and prospective employees, on Monday, May 20^th.  The bill, A-2878, was conditionally vetoed by the Governor last week, citing concerns that sections 4 and 5 would “paint with too broad a brush” and prevent employers from making informed choices about hires for positions requiring social media credentials.   Assembly sponsor John Burizchelli (D-Gloucester) has stated that even with the Governor’s changes, "the integrity of the bill is intact."

The State Senate voted to revise a bill to extend the civil statute of limitations in certain previously dismissed and time-barred cases on Monday, May 13^th.  New Jersey’s business community fears that the legislation, S-2281, would leave institutions which serve children vulnerable to unfounded accusations and offer little recourse.  The bill substitution can be found here. 

Diegnan/Gill legislation revising shareholder class action lawsuits, A-3123, is signed into law

Legislation which revises the law concerning derivative proceedings and shareholder class action lawsuits was signed into law by Governor Christie.  It was part of a package of bills sponsored by Assemblyman Patrick Diegnan (D-Middlesex) and Senator Nia Gill (D-Essex)to advance economic-growth initiatives as recommended by the Corporate and Business Law Study Commission. 

A derivative action is a suit brought by a small or minority shareholder against the corporation’s management or directors.  A-3123 establishes a minimum value of shares one needs in order to file such a suit.  It would also amend the parameters under which such a suit may be filed, allowing corporations to avoid unnecessary litigation and costs. 

Assemblyman Diegnan said this legislation would make New Jersey “even more attractive for businesses looking to set up shop or expand their presence in the state,” calling it a “common-sense update to our corporate business law to show that New Jersey is truly ‘open for business’” [read statement].

This sentiment was echoed by Assemblyman John Burzichelli (D-Gloucester) a cosponsor:

"With fierce competition on all sides from our neighboring states, we must seize any advantage that will help make New Jersey an even more attractive place in which to do business,”  he said.   

NJLRA thanks Governor Christie for signing A-3123, as well as the sponsors and cosponsors for addressing this issue. 

'Bad faith' bill is bad policy for New Jersey

S-2460, the covertly dubbed “Consumer Protection Act of 2012,” is a new lease on trial lawyers’ attempt to create a new cause of action for ‘bad faith’ (S-766/A-3434).

That bill, S-2460, is now scheduled for a hearing on Monday, March 4th, in the Senate Commerce Committee. 

Proponents argue that this bill will help policyholders who have been affected by Superstorm Sandy by codifying existing case law, protecting their right to sue insurance companies who fail to pay claims to which they are entitled.  In reality, it adds uncertainty and greater consumer costs to New Jersey's homeowners' insurance market:

• Very few victims of Sandy will be helped.  Those who lacked flood coverage, had inadequate coverage limits, or could not afford their deductible could not file suit under this bill.

• Policyholders would be able to recover damages in excess of the terms of their insurance contract.  In addition, they would be able to file for attorneys' fees, court costs, and prejudgment interest dating to the time the suit was filed.   

• All New Jersey insurance customers, including businesses which purchase commercial insurance, will pay higher insurance premiums as a result.

And as we noted last month, many of us opt for lower premiums in exchange for higher deductibles.  Others quickly sign on the dotted line and hope we never meet the devil lurking in the details.  But when the worst happens, as many New Jerseyans experienced late last year, customers expect their insurer to cover their losses as defined in their coverage. 

New Jersey Manufacturers Insurance Co. (NJM) CEO Bernie Flynn told a legislative committee last month that they expect payouts to reach $300 million.  State Farm has made a point of expediting their 30,000 Sandy-related claims.  On some occasions, however, an insurer may fail to live up to their end of the agreement and deny payment to a customer.  New Jersey consumers are able to file suit against their insurer in these instances.  But recently reintroduced legislation threatens to add more bureaucracy and litigation into an already stressed civil justice system. 

S-2460, the covertly dubbed “Consumer Protection Act of 2012,” is a new lease on trial lawyers’ attempt to create a new cause of action for ‘bad faith’ (S-766/A-3434).  It wouldn’t simply codify existing case law with respect to ‘bad faith;’ rather, a court would only need to find that an insurer acted ‘unreasonably’ in order to win a bad faith case, adding subjectivity and the potential for awards beyond one’s coverage. 

Acting Department of Banking and Insurance commissioner Kenneth Kobylowski noted that New Jersey’s strong homeowners’ insurance market had rates near the national average despite having property values among the highest in the country. 

"To have average premiums in the middle of the marketplace is just a testament to how stable, how competitive and how well-run our homeowners' market is," he told NJ BIZ. 

But if the cost of doing business increases for New Jersey’s insurance industry, we can all expect our premiums to rise. 

Bill granting civil immunity to ambulatory, rescue, and first aid squads advances

S-2165 received the unanimous approval of the Senate Law and Public Safety Committee.  Under current law, only the officers and members of first aid, ambulance or rescue squads have civil immunity; not the entities themselves.  This bill clarifies that the entities, as well as the officers and members are not liable for any civil damages as the result of an act or the omission of an act committed while in training for or in the rendering of intermediate life support services in good faith. Its companion bill, A-3282, passed the Assembly Health and Senior Services committee with bipartisan support in January. 

S-2165 is sponsored by Senator Kip Bateman (R-Somerset).  Its assembly sponsors include Assemblymen Eric Peterson (R-Hunterdon), Anthony Bucco (R-Morris), and Herb Conaway (D-Burlington).  The measure awaits full legislative approval in each house. 

Subway is the latest example of why NJ's Consumer Fraud Act needs fixing

We can tell you that New Jersey’s courtrooms are among the nation’s easiest in which to file a ridiculous lawsuit, but sometimes the weaknesses of the NJCFA speak for themselves. 

Two New Jersey residents contend that the size of their ‘footlong’ sub from Subway fell short of twelve inches.  And with a straight face, they were able to file a lawsuit under the New Jersey Consumer Fraud Act with ease.  Their lawyer is seeking class-action status on behalf of everyone who’s purchased one and meets the criteria. 

A recent NJ BIZ article (Advocates hope bill takes bite out of N.J. fraud law / Jared Kaltwasser, 2/4/13)) examines a possible remedy for the New Jersey Consumer Fraud Act, sponsored by Assemblyman Craig Coughlin.  A-3264 has been referred to the Assembly Consumer Affairs Committee. 

Register now for NJLRA's Spring Membership Luncheon, honoring two of New Jersey's Outstanding Legislators

There is no cost to attend.  Advanced registration is required.

When: Tuesday, March 12th, 12:00 p.m.

Where: Trenton Country Club

  REGISTER HERE

Assembly Health Committee to hear medical liability reform measure

The Assembly Health and Senior Services Committee is scheduled to hear A-1831 on Thursday, marking an important step toward addressing deep concerns about the cost of liability insurance within the medical community.   

Sponsored by Chairman Herb Conaway (D-Burlington), A-1831 would prevent insurance carriers from raising liability premiums based on a claim of medical practice, unless the physician is found liable in court, and would prohibit insurers from increasing liability premiums in certain charitable or emergency situations. 

This legislation would also provide civil immunity to healthcare professionals who volunteer their services in good faith.  Civil immunity would be available to volunteer healthcare professionals who do not have an active provider-patient at the time of the emergency.  As our population outpaces the number of physicians we need to adequately care for the health of New Jersey residents, volunteer healthcare professionals will become increasingly important.  By offering civil immunity to these volunteer medical personnel, A-1831 takes a step toward addressing our New Jersey’s public health needs. 

Practicing specialized medicine in New Jersey is comparatively difficult for recent medical school graduates.  In addition to their student loans, new doctors must bear New Jersey’s high cost of liability insurance premiums.  Specialties which carry some of the highest premiums, including obstetrics and gynecology, disproportionately impact New Jersey women.  It is no longer cost effective for many existing OBGYNs in New Jersey to deliver babies, and many have stopped doing so altogether.  It’s not just a matter of addressing a significant healthcare cost-driver; it’s also about ensuring that New Jersey residents – especially women – have access to medical care.   

The hearing will take place at 10 a.m. in committee room 16.

A-3282 Passes Assembly Health Committee with Bipartisan Support

A-3282 clarifies that first aid, ambulance or rescue squads, as entities, have immunity from civil damages in certain circumstances

While this may seem to be a routine legislative clarification, the catalyst case, Murray v. Plainfield Rescue Squad, was eye-opening. 

In August 2004, a young man was shot by his own brother.  Alive and able to speak, his parents immediately called 911.  The Plainfield Rescue Squad arrived by ambulance and fruitlessly performed CPR; some believe that if he had instead been immediately transported to the hospital, Odis Murray would have had a 20 – 30 percent chance of survival. 

The Murrays decided to file a wrongful death lawsuit – not against their other son, Akeem Murray, who intentionally fired the shot that killed Odis – but against the Plainfield Rescue Squad. 

A lower court found that the because the Squad provided “intermediate life support services in good faith,” they were protected from civil liability under N.J.S.A. 26:2K-29, also known as the Good Samaritan Act. 

The Supreme Court ultimately disagreed.  The spirit of the act was to protect volunteers acting in good faith from liability so as to not dissuade volunteer responders from helping in the first place.  While it specified who would be protected, it did not define ‘rescue squads’ clearly enough for the Court’s liking. 

“The Legislature chose to provide immunity to volunteer rescue squads and to rescue squads rendering advanced life support services,” wrote Justice Barry Albin in a unanimous decision.  “By the clear language of N.J.S.A. 26:2K-29, the Legislature chose not to provide immunity to rescue squads, as entities, rendering intermediate life support services.

“If the failure to provide immunity to such rescue squads was an oversight, any corrective measure must be taken by the Legislature.”

The Legislature took the first step toward clarifying the intent of the Act today.  Primary sponsors of A-3282 include Assemblymen Eric Peterson (R-Hunterdon), Anthony Bucco (R-Morris), and Chairman Herb Conaway (D-Burlington).  Its companion bill, S-2165, is sponsored by Senator Kip Bateman (R-Somerset) and has been referred to the Senate Law and Public Safety Committee.   

Click here for Assemblyman Conaway's statement.  

A red-light camera lawsuit that will have you seeing red

It’s not exactly a refund. 

If you were one of the half-million motorists who received a ticket in the mail courtesy of American Traffic Solution’s red light cameras, take comfort: the $85 - $140 fine you paid may not be the last word.   

The timing of yellow lights wasn’t officially recertified until July 25^th, prompting lawyers to argue that fines issued before that date in eighteen of New Jersey’s municipalities should not stand.  ATS avoided a trial by agreeing to a $4.2 million class action settlement. 

But don’t celebrate just yet.  You won’t be getting the full sticker price of your erroneous ticket returned.  No.  After attorney’s fees and administrative costs, you and other red-eyed motorists will receive $6.  And that’s assuming all of your paperwork is correct. 

Assemblyman Declan O’Scanlon (R-Monmouth) has long argued that intersections with red light cameras pose a greater risk to public safety than those without the cameras.  Accidents have increased nearly 400 percent at some intersections in just the first year of installation. 

According to the Star-Ledger, a separate class-action suit is pending against Redflex Traffic Systems, which is the red light vendor for cameras in eight other municipalities. 

Good luck to those eligible for a $6 check.  I’m sure the legal maneuvering was worth every penny.

The "Facebook bill" will be heard in the Assembly today - urge legislators to read section 5 before voting!

A-2878, referred to as the “Facebook bill,” would prohibit employers from asking for certain social networking information from employees and prospective employees.  The bill’s intention to protect employees’ privacy is laudable; however, a provision in Section 5 of the legislation creates an unnecessary hardship for New Jersey’s business community and may place an additional strain on our court system.  This section would create a new opportunity for current, former, and prospective employees to sue New Jersey businesses. 

Under this provision, employers or businesses who seek to hire an employee to administer their company’s social media communications would risk a lawsuit if they ask a prospective employee about his or her social media experience.  An unqualified job applicant would be given the right to seek monetary compensation if social networking was raised even in casual context during the interview process or later as an employee.  New Jersey would be the only state in which an employee or prospective employee would have such leverage, contributing to a hostile business climate in which unemployment outpaces the national average.   Even if an employer is found to have committed no violation of this act, time and capital will be needed for a defense.  Small businesses would be hurt most by litigation, as it can take up to $70,000 to resolve even the most clearly meritless cases. 

As New Jersey seeks to rebuild after the events of Hurricane Sandy, it is critical that we do not impose unintended disadvantages on our state’s economic backbone.  California, Maryland and Illinois have taken steps to protect employees’ privacy without exposing their business community to new and expensive liability in addition to penalties.  Please urge legislators to consider amending or removing Section 5.   

Legislative Updates - "Facebook bill" advances, Statute of limitations bill stalls

The State Senate advanced legislation this week that would prohibit employers from asking employees and prospective employees about their social media usage.  While intended to protect workers’ privacy, NJLRA and other business advocates stress that the so-called Facebook bill creates a new provision for workers to sue their employers, and with it, great potential for abuse.  [Learn more about S-1915].

Legislation to amend New Jersey’s statute of limitations in certain civil cases was held from consideration by the full Senate.  NJLRA and other business advocates have voiced concerns about both S-1651 and S-2281.  [Learn more about NJLRA’s position].

Legislative Update - The "Facebook bill"

S-1915, which prohibits employers and prospective employers from requesting access to workers’ social networking accounts, was passed by the full Senate.  While NJLRA applauds the sponsors’ intent to protect employees’ privacy, the Senate did not amend Section 5 which would give current and prospective employees new grounds to sue businesses. 

NJLRA supported removing this clause.  Casual conversation over the mere existence of a social networking page with a subordinate, for instance, would become a thing of the past. Forgetting that could cost employers tens of thousands of dollars in legal fees – and it also gives the disgruntled ex-employee or the unqualified job applicant unprecedented leverage over their employer.   

Previous post.

Legislative Update

Assemblyman Craig Coughlin (D-Middlesex) introduced legislation which would give judges more discretion in cases involving the New Jersey Consumer Fraud Act. Under current law, the court is required to award threefold the damages sustained by any person in interest and attorneys’ fees, filing fees and reasonable costs if a violation occurs. This bill, A-3264, gives the court discretion in awarding damages. They would not be permitted to exceed three times the actual damages sustained by the consumer. The bill also provides that the consumer fraud act applies only to New Jersey residents and transactions that take place within the State. A-3264 has been referred to the Assembly Consumer Affairs Committee. The full text can be found here, on the Legislature’s website.

NJ is Treacherous Ground for Physicians: A Panel Discussion

Ten years ago the Medical Society of New Jersey (MSNJ) worked hard to enact meaningful medical liability reform in New Jersey.  Since then, court decisions have gutted key statutes and insurance premiums have skyrocketed.  We are now on the brink of a severe doctor shortage as other states enact liability reform and attract new physicians. 

MSNJ will be hosting a panel discussion on Thursday, September 27^th with leading legislative and legal experts to discuss what can be done to combat the unique issues facing New Jersey’s doctors and their impact on public health. 

To register for this free event, please click here to visit the Medical Society’s website. 

NJLRA welcomes Senate Minority Leader Tom Kean, Jr. to Annual Membership Luncheon

Executive Director Marcus Rayner greets Senate Minority Leader Tom Kean (R-Union) at NJLRA's annual Fall Membership Luncheon

Since it's peak convention season, now is the perfect time to REGISTER to VOTE!

NJ Prosperity Project gets out the vote

While we’re all embroiled in patriotism (or nausea, depending on your perspective), now is the time to keep the momentum going and turn your sentiments into action.  The deadline to register to vote is October 16^th, not Election Day.  Click here and follow prompts to register.

Register for NJLRA’s Annual Fall Membership Luncheon!

With fall just around the corner, it’s time to register for NJLRA’s annual Fall Membership Luncheon!  This year’s speaker will be Senate Minority Leader Thomas Kean, Jr.  It will take place on Thursday, September 13^th at noon at the Trenton Country Club.

Time flies, so register today! 

 Click here to register online.

Protecting volunteers may expand healthcare in Trenton, NJ

As our nation continues to debate health insurance mandates and cost-drivers that left preventative medicine out of reach for many, volunteer doctors quietly set up shop in some of New Jersey’s most underserved communities, trying to alleviate public health burdens on a patient-by-patient basis. 

Trenton is one of these communities.  In a Trenton Times report earlier this week, City Health Officer James Brownlee explained that years of funding cuts forced its clinics to greatly reduce the services they could offer. 

But there may be light at the end of the tunnel.  And that light is federal “free clinic” status.

According to the Times, such a designation would provide “essential malpractice insurance for a new staff of volunteer doctors, nurses, and other professionals who have retired from local hospitals,” bringing with it an opportunity for clinics to begin expanding their outreach once again.   

Medical liability insurance is routinely cited by New Jersey’s medical community as a disincentive for doctors to practice in the Garden State.  Such premiums, particularly for OB-GYNs, are significantly higher than premiums in other states. 

New Jersey faces a doctor shortage by the end of the decade if we simply do nothing.  Physicians who volunteer a portion of their retirement to continue treating patients help close a gap that we have yet to fill – a gap that will only increase as the number of physicians per capita decreases. 

Some aren’t convinced that assuaging doctors’ concerns about medical liability insurance increases access to care.  But in some of Trenton’s most underserved neighborhoods, it’s clear that it may make a world of difference.    

Assemblyman Herb Conaway is the sponsor of A-2178, which would provide civil immunity for certain volunteer physicians, nonprofit clinics, and federally qualified health centers.  It was second-referenced to the Assembly Judiciary Committee after passing favorably from the Health and Senior Services Committee in May.  Chairman Peter Barnes has not indicated whether he will post it for a vote. 

The bill’s Senate counterpart, S-1165, has the bipartisan support of Senators Loretta Weinberg (D-Bergen) and Diane Allen (R-Burlington). 

Christie, Romney, and Legal Reform

Paul Ryan is Mitt Romney’s vice-presidential pick.  This means Governor Christie officially belongs to New Jersey for at least another 16 months. 

With movement on pension and education reform, legal reform and medical liability reform may rise on the Governor’s agenda.  The need for legal reform has grown more apparent in recent months as studies confirmed that New Jersey will face a shortage of physicians by the end of the decade.  The State Senate unanimously passed legislation authorizing DHSS to convene a summit to analyze the shortage’s implications for New Jersey residents; its Assembly counterpart, A-1828, awaits action by the Assembly Health and Senior Services Committee. 

Have a happy, safe, and lawsuit-free 4th of July from NJLRA!

Red light cameras proponents say such cameras at intersections make our roads safer, deterring motorists from running them and causing serious accidents.  But many New Jersey motorists and taxpayers criticize them as being unfair for failing to take justifiable conditions into consideration, a fundraiser for cash-strapped government entities, a great way to get rear-ended by tailgaters, if not all of the above. 

Two South Jersey residents filed the first putative class-action lawsuit against Cherry Hill Township last month.  They say that yellow signals are too short at such intersections, in violation of regulations set by the Legislature in 2008, and a refund is issued to drivers.  The refunds would be administered by a court-supervised program.  It’s unclear how much (if anything) individual motorists would reclaim once attorneys’ fees and administrative costs are calculated. 

Read more in the New Jersey Law Journal.   

“Ambulance-chaser” bills advance

On Monday, the Assembly Judiciary Committee advanced legislation to prevent accident reports from being made available to the general public for 90 days following an accident.  Such reports are often aggressively sought by trial lawyers, which prompted Assemblywoman Nancy Munoz to dub the legislation, A-801, the “ambulance chaser bill.”

The Senate Judiciary Committee advanced a similar measure on Thursday, which would bar solicitation for 30 days following an accident.  S-761 is sponsored by Senator Nicholas Scutari. 

According to a report by Michael Booth in the New Jersey Law Journal, constituents often expressed concern to the legislators after receiving pieces of mail from attorneys referencing their “upcoming court case.”   The current Assembly version of the bill would require the word “advertisement” to be included on such mailers, in capital letters.

Legislative Alert: Insurance Fraud, False Claims Legislation to be heard on Monday

A-944, which establishes and enhances certain insurance fraud measures, will be heard in the Assembly Financial Institutions Committee on Monday, June 18th
at 10 a.m. in Committee Room 15

NJLRA supports A-944

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A-2165, which would change the effective date of the New Jersey False Claims Act, will be heard in the Assembly Judiciary Committee on
Monday, June 18th
at 10 a.m. in Committee Room 12

NJLRA opposes A-2165
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Please contact Marcus Rayner for more information about either of the above.

Until further notice, the halls of justice will be closed

In the criminal court system, it’s often said that justice delayed is justice denied. 

But for the civil court system in Union County, justice is suspended. 

A political stalemate over judicial vacancies is contributing to a shortage of judges available to hear civil cases, according to a report in the Star-Ledger.  A nearly 40 percent vacancy rate among judges, a backlog of over 800 cases, and four recall justices on vacation beginning July 1^st means that the Union County Courthouse will not hear any civil cases during the months of July and August, a spokesperson said.  Civil cases include everything from child custody disputes and divorces to the resource-draining “I-drove-drunk-and-hurt-myself-time-to-sue-the-bar” cases for which New Jersey has become infamous.  

New Jerseyans from all walks of life need access to our civil courts.  Union County taxpayers are no exception.  Once the political stalemates are resolved, the Legislature needs to get serious about keeping frivolous lawsuits of our civil courts, which take scarce time, money, and resources away from disputes which need judicial intervention.

Bruce Harris nomination tomorrow, 10 a.m.

Some say it's a done deal: Bruce Harris, Mayor of Chatham and Governor Christie's Supreme Court nominee, won't be approved by the Senate Judiciary Committee tomorrow. 

The Star-Ledger reported this last week (Spoto, 5/22), and others have weighed in since.  Here is a sampling:

"Before a second of testimony has been heard or a single question has been asked, once again Democrats are disrespecting the nomination process and rushing to judgment to kill another qualified man’s nomination before he even sits in the committee room."- Kevin Roberts, spokesman for Governor Christie

"The nomination of Mr. Harris sends the wrong message, that we can only achieve diversity on the Supreme Court through lowering the bar for qualifications.  In a state with many distinguished African-American lawyers and judges, nothing could be further from the truth." – Senator Ronald Rice, leader of the NJ Black Legislative Caucus

"I don’t think it’s going to be an extremely long hearing because there’s just not a lot of experience to question him on," Senator Nick Scutari, Senate Judiciary Chair

(and of course)

"It's interesting that someone like Nick Scutari, with his educational background [found Harris unqualified]" - Governor Christie

NJ Needs Class Action Reform - Support A894 in AJU Committee on Monday!

A894, sponsored by Assemblymen Chuisano and Wisniewski, would allow defendants to appeal a class action certification immediately. This means that defendants who believe the court made a mistake will not have to incur the time and expense of going to trial only to have to do it all over again because the class certification was erroneous from the start.

Learn more about A894 and how it would affect class action lawsuits and New Jersey's economy here.  

Please support A894 in the Assembly Judiciary Committee on Monday, 5/21, at 10:00 a.m. in Committee Room 12

Committee members:

Assemblyman Peter J. Barnes, III (D18), Chair 

Assemblywoman Annette Quijano (D20), Vice Chair  

Assemblyman Ralph R. Caputo (D28) 

Assemblyman Gordon M. Johnson (D37) 

Assemblyman John F. McKeon (D27) 

Assemblyman Michael Patrick Carroll (R25) 

Assemblywoman Holly Schepisi (R39) 

New Jersey Needs Class Action Reform. Support A-894

Update: Conaway/Weinberg bill to protect certain volunteer physicians, nonprofit clinics, and FQHCs advances from Assembly Health Committee

A-2178 was unanimously supported by the committee’s democrats.  Using the hypothetical example of a doctor’s spouse who may create a nonprofit organization and employ said doctor as a volunteer, Assemblyman Erik Peterson expressed concern that there may be an opportunity for some to take advantage of the law.  He abstained awaiting clarification.  Assemblyman David Rible voted against it. 

Protecting those who help others is gaining traction in New Jersey

In recent years, concerns regarding civil liability have prompted some entities and individuals to think twice before getting involved during an emergency. 

A trio of bills, including one which is scheduled for consideration by the Assembly Health and Senior Services Committee on Thursday, seeks to change that.

 

A-2178/S-1165                          Status: on AHE agenda, 5/10/12

Many New Jerseyans rely on healthcare services offered by federally qualified health centers, nonprofit clinics, and retired-but-certified volunteer physicians who provide treatment.  The threat of liability for these individuals and entities, however, is a powerful disincentive.   Legislation sponsored by Assemblyman Herb Conaway and Senate Majority Leader Loretta Weinberg would provide civil immunity to the aforementioned acting in good faith. 

 

A-2099/S-1416                        Status: 2^nd reading the Assembly

When a West Virginia woman was unable to speak after calling 9-1-1, first responders arrived at her home but did not have consent to forcibly enter.  She was later found dead by family members.  An assembly committee approved legislation which would grant civil immunity to first responders who must forcibly enter a property in order to provide emergency assistance.  It awaits consideration by the Senate Judiciary Committee (contact Senator Scutari).    

 

 A-832/S-852                        Status: Signed into law

Automatic external defibrillators can save lives if they are used within the first few minutes of a cardiac arrest.  That is why the John Taylor Babbitt (JTB) Foundation made it its mission to fundraise and donate AEDs to places of public assembly, according to the Chatham Patch and Mendham-Chester Patch.  The problem the Foundation encountered is that for each device donated, 8 – 10 were being rejected.  The reason, according to JoAnne Babbitt, is that some organizations, including churches, youth recreation leagues, and schools, will not accept a donated AED because of the increased liability they assume.  AEDs were not covered under New Jersey’s Good Samaritan law. 

Fortunately, that changed with the stroke of a pen last week, as the Governor signed A-832/S-852 into law with overwhelming legislative support from both parties.  Senator Nicholas Scutari was the lone legislator to vote against it.  New Jersey has joined the ranks of 43 other states which grant civil immunity to those who own or utilize an automatic external defibrillator (AED) during a cardiac arrest. 

 

Let’s hope the positive momentum help A2178 and S1416 materialize as well. 

New Jersey's doctors are on treacherous ground

New Jersey is treacherous ground for physicians. 

Few people deny that the earth is getting warmer.  And few people deny that New Jersey’s exodus of doctors (the so-called “Medical Brain-Drain”) will affect New Jerseyans’ access to healthcare. 

There are likely many reasons behind this phenomenon, as the Department of Health and Senior Services Summit (S173), if enacted, hopes to uncover.  High cost of living and a lack of tax incentives are frequently cited, as are the costs of liability of insurance (click here for one New Jersey’s medical student’s story). 

And with respect to the number of claims filed against physicians each year, New Jersey is an outlier among states. 

Comparing New Jersey to Ohio, for instance, is revealing: despite having a population which exceeds New Jersey’s by two and a half million, the Garden state had 630 medical liability claims in 2011 to Ohio’s 287.   New Jersey even managed to surpass Texas, which has nearly three times the number of residents, in the number of medical liability claims last year (Texas had 550 claims in 2011, in case you were wondering). 

“A physician shortage crisis is right around the corner in New Jersey if we do not take immediate steps to change course,” J. Richard Goldstein, president and CEO of the New Jersey Council of Teaching Hospitals, said in a 2010 news release. “National health reform, while laudable and needed, will only work to accelerate the time when there simply will not be enough doctors to serve New Jersey’s adults and children.”

Should meaningful medical liability reforms continue to stagnate, despite Dr. Goldstein’s warnings, New Jersey will continue to educate other states’ physicians, at the cost access to care for New Jersey’s residents. 

The Co$t of bullying

Many of New Jersey’s school districts have maintained that New Jersey’s bipartisan anti-bullying law, while well-intentioned, is a costly unfunded mandate.  A state panel agreed, which prompted the law’s sponsors and Governor Christie to allocate $1 million to the state’s local school districts in order to help them pay for staffing and training. 

As the Gloucester County Times pointed out in an editorial earlier this month, $1 million spread over 612 school districts isn’t likely to quell the districts’ concerns regarding the law’s cost. 

And as NJLRA points out in a letter-to-the-editor, with so many bureaucratic nuisances, litigation is all but assured. 

“It ought to be possible to have an effective anti-bullying strategy in each of our schools without breaking anyone’s bank,” the GC Times wrote.

New Jersey needs a strong anti-bullying law. But with respect to this particular law, the bleeding has only begun.

Read NJLRA’s letter here. 

Auto insurance reform worked. Why not legal reform? #legalreform @lougreenwald #nj

There was a time when auto insurance premiums topped New Jerseyans’ list of complaints about life in the Garden State.  Today, a decade after comprehensive reform, it doesn’t crack the top ten. 

Noting the growth of NJLRA and our affiliates since our inception in 2007, Assembly Majority Leader Lou Greenwald suggested legal reform could follow a similar course in New Jersey. 

New Jersey’s small businesses, particularly those located in Southern New Jersey, have experienced increased financial strain from rising liability insurance over the past few years.  Municipal governments are also feeling the effect of an overheated culture of litigation.   Irrespective of the merits or outcome, taxpayers foot the bill when a lawsuit is filed against local governments.  It’s not exactly the kind of investment one hopes for with his or her property tax bill. 

Click here for a list of active, bipartisan legislation which can improve New Jersey’s civil justice climate for taxpayers, businesses of all sizes, and the medical community and their patients. 

In case you missed it: NJLRA offers advice to NJ business owners

In an op-ed in the Times of Trenton this week, NJLRA discusses why it’s important to engage with local elected officials.  It is intended to be a guide for the state’s small business owners, but it can apply to everyone who’s ever been curious about who makes the rules by which we all need to abide. 

You can read it in The Times here, or on NJLRA’s website. 

Budget Break 2012. What’s a New Jersey Tort Reformer to do?

New Jersey’s annual “budget break” is the period between the end of March and June when Assembly and Senate Budget Committees meet to finalize the next fiscal year’s budget.  The emphasis on budgetary matters can seemingly push legal reform to the back burner, as the rest of the Legislature remains in recess and voting sessions are suspended. 

But as Lawsuit Reform Watch noted last year at this time, one of the most appealing aspects about legal reform is that it has the power to spur economic growth while being budget-neutral.  There are some things tort reformers can do:

Attend NJLRA’s Membership Luncheon, featuring Assembly Majority Leader Lou Greenwald.  Assemblyman Greenwald recently assumed the title of Assembly Majority Leader in the Democratic Caucus.  What legal reform progress does he envision in the near future?  Come hear his thoughts on all things legal reform on Tuesday, April 10^th, at noon.  You will be in the company of 60+ business leaders, association presidents, and NJLRA members at this event.  Paul Matey, Deputy Chief Counsel to Governor Christie, will also deliver remarks.  There is no cost to attend, but registration is required.  Click here to register.  Directions to NJ CAR are available here. 

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.

Follow NJLRA.  In addition to subscribing to our blog feed, we are active on Facebook and Twitter.  And as rumor has it, a Pintrest board may be in the works.  In addition to legislative developments and the latest doctor shortage statistics, we’ll be sure to let you know which New Jersey bar will be the next sued by patrons for ‘making’ them drunk. 

Touting tort reform before business

Read Andrew Kitchenman’s story in NJ BIZ about the prospect for lawsuit reform this year:

 

Advocates of lawsuit reform are touting the possibility of significant bills to reform the state's laws governing class action and consumer fraud cases, signaling what may become the biggest opening for changes since the 1990s.

A pair of bills introduced this session would limit the cost to post bonds for corporations that are appealing judgments, and would allow the subjects of class-action lawsuits to directly appeal the determination that a "class" exists.

The state's most prominent lawsuit reform advocate may be Marcus Rayner, executive director of the New Jersey Lawsuit Reform Alliance, which launched in 2007 to bolster lobbying on tort reform and related issues.

Rayner said the political climate is shaping up to be good for the bills.

"I think the business community has been impressed with this legislative leadership's interest with helping," along with that of Gov. Chris Christie, Rayner said.

Rayner said tort reforms in other states — including North Carolina, Wisconsin, Tennessee and Texas — increased pressure on New Jersey.

"A climate of excess litigation drives up the costs for everybody, from the business owner to the consumer," he said.

Read full story.

Governor’s budget address

Governor Christie’s budget address will take place at 2 p.m. today.  While lawsuit reform measures are typically devoid of budgetary line-items, changes that NJLRA seeks would add much-needed business investment to the state’s economy. 

You can listen the Governor’s budget address live on the Legislature’s homepage, linked here. 

Save-the-Date: NJLRA's Spring Membership Luncheon

NJLRA will hold its annual Spring Membership Luncheon on

Tuesday, March 13th at noon, at the Trenton Country Club in West Trenton

Previous keynote speakers have included Senator Ray Lesniak (D-Union) and Rich Bagger, former chief-of-staff to Governor Christie.

This year's keynote speaker TBA. 

 

There is no cost to attend, but an RSVP is required.  Email us to RSVP - we hope to see you there!

Prefiled Civil Justice Bills

The following pieces of legislation were prefiled for introduction for the new legislative session, which officially began on January 10^th.   Please contact NJLRA if you would like additional information about any of the following:

Summary	New Bill #	Old Bill #	Sponsors
Extends $50 million cap on appeal bonds in civil actions to all industries in New Jersey	A241	A2473	Schaer, McKeon
Permits litigants contesting class certification the right to immediately appeal that ruling.	A894	A4135	Chiusano, Wisniewski
Caps noneconomic damages in medical malpractice actions at $250,000.	A966	A1367/S610	Weber, Chiusano, McHose
Establishes a medical malpractice part in the Superior Court.	A1689	A260	Russo
Concerns liability in good faith treatment cases, standards of care, insurance coverage for medical malpractice actions and also sets time limits on medical malpractice claims being filed.	A1806	A1982/S670	Conaway, O'Scanlon, Weber, Handlin, McHose, Angelini, Riley, Huttle, Chiusano
Establishes limits for certain damages in medical malpractice actions.	A1926	A1806/S1844	Casagrande

Item of note: last day of the 2010-2011 voting session

A-3304, which NJLRA opposes, is scheduled for consideration by the full Assembly today.  If enacted, this legislation would make the 2008 False Claims Act retroactively applicable to alleged offenses occurring up to 14 years ago, from March 1998.

A lot can happen in nearly 14 years.  Companies change. Employees change.  Exonerating evidence is harder to come by.

But this bill doesn’t take any of that into consideration.  Instead, a company – no matter how big or small, equipped with a legal department or not – may be forced to defend itself against a False Claims lawsuit without the benefit of time-sensitive exonerating material. 

More importantly, A-3304’s retroactive application of the False Claims Act is unconstitutional, and puts companies that do business in the State of New Jersey in serious danger of unfair and unjust litigation abuse. 

A-265 Receives Broad Support in the Assembly Judiciary Committee

What do the New Jersey Lawsuit Reform Alliance, the New Jersey Chamber of Commerce, NJBIA, New Jersey Retail Merchants Association, National Federation of Independent Business-New Jersey, Chamber of Commerce of Southern New Jersey, Chemistry Council of New Jersey, New Jersey Food Council, and the Healthcare Institute of New Jersey have in common?

All were present to support A-265, sponsored by Assemblyman David Russo, which would create specialized business courts in New Jersey.  Chairman Peter Barnes noted the wide range of support. 

Legal issues involving businesses are complex, laden with terminology and evidence which is unfamiliar to the common court.  Highly technical matters are identified and addressed at great cost to both businesses and taxpayers alike.  The advantage of a business court is that it would permit business-related judicial matters to be heard by courts with an established background and knowledge of such litigation.  A majority of northeastern states already have a business court in place, and it is actively under consideration by several others. 

Establishing a business court doesn’t just improve the efficiency of our court system – it sends a strong message to businesses that New Jersey is a solid place in which to expand and hire workers. 

A-265 was posted today for discussion only.  NJLRA looks forward to the bill’s reintroduction and advancement in the 215^th legislative session, which begins next week.  You can download a copy of NJLRA's testimony in support of business courts here.  

Legislation to create a business court in New Jersey on AJU agenda for discussion

A-265 would create a specialized business court within the New Jersey Superior Court.  

Legal issues involving businesses are increasingly complex, laden with terminology and evidence which is unfamiliar to the common court.  Highly technical matters are identified and addressed at great cost to both businesses and taxpayers alike. 

And unsurprisingly, we are among a minority of states on the east coast which do not have a business court in place.

NJLRA supports A-265 because it would permit narrow business-related judicial matters to be heard by courts with an established background and knowledge of business litigation.  And with an unemployment rate in excess of 9 percent – the highest in the region – the creation of a business court serves as an incentive for leading employers to increase their business presence in New Jersey.  The highly specialized industries, including the life sciences, which are affected by this legislation have the potential to create long-term, high paying jobs that will be essential to growing our state’s economy over the next several years.   

It is sponsored by Assemblyman David Russo (R-Midland Park). 

Legislative Update

A-3434, which NJLRA opposes, was passed in the Assembly yesterday by a vote of 44-27.  This bill, which requires a review of consumer contract for unconscionability, may actually be in conflict with Federal law under a U.S. Supreme Court decision handed down on April 27th, 2011 in AT&T vs. Concepcion.  In that decision, the Court ruled that "[w]hen state law prohibits outright the arbitration of a particular type of claim, the FAA [Federal Arbitration Act] displaces the conflicting rule."  Please click here for more information. 

Statute of limitations bill, A-3929, advanced by committee

The Assembly Regulated Professions Committee unanimously approved A-3929, which requires certain civil actions against certain licensed professionals to be brought within two years, down from six.

**Legislative Updates**

Assemblyman Upendra Chivukula’s “Trade Secrets Act” was passed unanimously by the General Assembly during Monday’s voting session.  Under A-921/S-2456, a company or organization would be able to sue for damages or losses that result from someone taking proprietary information (a recipe, chemical formula, invention, intellectual property, etc.) and trying to profit from it by selling it or manufacturing it.  If I take a secret recipe for a food item, sell it and make money from it, for instance, I would have to pay royalties to the company or person from whom I stole it.   A-921/S-2456 has now passed both houses and has the support of NJLRA. 

On the agenda for Thursday’s Assembly Regulated Professions Committee hearing is A-3929, which would require civil actions against certain licensed professionals (including most doctors) to be brought within two years instead of six.  This is especially important as witnesses become unavailable and records are destroyed over the extended period.  NJLRA supports this bill and looks forward to the committee’s favorable passage.  It is sponsored by Assemblyman Vincent Prieto (D-Hudson).

The Lame Duck Season is upon us

The so-called “lame duck” session of the Legislature – the period between Election Day and the start of the next legislative session in January – is traditionally a period of frenetic lawmaking activity.  For outgoing legislators who may be retiring or have not been reelected, it is the very last chance they have to shepherd bills through the democratic process. 

NJLRA has five bills which it hopes will advance:

A-2473/S-480, which would apply the $50 million appeal bond cap enjoyed by tobacco companies to all businesses in New Jersey, so they do not have to prepay in order to appeal a judicial decision.

A-3333/S-2855, which would limit causes of actions under the New Jersey Consumer Fraud Act to consumers who suffer an ascertainable loss (as opposed to businesses), and make the Act applicable only to transactions which occur in New Jersey. 

A-4228/S-3028, the “New Jersey Licensed Alcoholic Beverage Server Fair Liability Act.” This bill would prevent drunken motorists, convicted of DUI, from suing licensed beverage servers who served them in the event they drive drunk and cause themselves injury.  (Yes, thanks to the New Jersey Supreme Court, we need legislation to clarify that drunk drivers cannot legally profit from their irresponsibility).

A-4135, which would allow defendants the right to immediately appeal a class action certification.

A-1982/S-760, which would address skyrocketing medical malpractice premiums and a consequential physician shortage in certain specialties by: protecting volunteer physicians acting in good faith from liability; prevent insurance companies from immediately imposing an increase on doctors who are named in a malpractice suit; require physicians providing expert testimony to be licensed in New Jersey and board certified in the appropriate specialty; and reverse the New Jersey Supreme Court’s decision in Ryan v. Renny, which gutted the Affidavit of Merit Statute enacted in 2004. 

LRW will keep you abreast should any of the aforementioned bills advanced.  For the most up-to-date legislative calendar, click here to visit the Legislature’s website. 

It’s Election Day in New Jersey. Go vote.

People often say that they sit out “off year” elections like this one because they’re not as important as Presidential or gubernatorial elections.   

This notion is entirely false.  Only a handful of us will ever meet the President or require an intervention from the White House.  For substantive help, government begins from the bottom up. 

It is the level of government closest to you – your mayor, town council, and state senators and assembly members – who decide the best use for the empty lot across the street from your house, how frequently your trash will be collected, and by how much your property taxes will rise.  These are the elected officials best equipped to make changes when you can’t get through to the state unemployment office, experience problems at the MVC, or need to raise awareness about an issue that’s important to your community.  This is why it’s especially important that we exercise care and concern during “off year” elections –at the very least, that we pay attention to whom we are entrusting with the oath of local office. 

All of New Jersey’s 40 legislative districts are up for grabs today.  Many municipalities have mayoral and town council races as well.  Click here to find your voting location, and visit NJ Spotlight’s voter guide for more information about some of the candidates. 

It’s Election Day.  Make it count. 

Survey: South Jersey Becoming a Lawsuit Mecca

A majority of New Jersey’s small business owners want the Legislature to address legal reform, according to a Rutgers-Eagleton survey. 

And business owners in the Philly suburbs are the most likely to be taken to court. 

The survey found that the majority of New Jersey’s small business owners aren’t happy with the state’s culture of litigation:

• 84% of those surveyed rate the state’s business climate as “fair” or “poor,” and an astounding 87% say they want the Legislature to prioritize legal reform. 
• 24% of businesses statewide have been threatened with litigation in the past five years, but that number jumps to 40% among South Jersey businesses. 
• Overall, 1-in-4 South Jersey small businesses have actually been brought to court during the past five years.  The chances of courtroom litigation also increase with a business’s longevity and growth.
• Two-thirds of South Jersey businesses saw an increase in their liability insurance premiums during this time period, even if they haven’t been sued.

Marcus Rayner, NJLRA's executive director, released the following statement:

“It’s clear that New Jersey’s liability laws put the state at a disadvantage,” said Marcus Rayner, executive director of the New Jersey Lawsuit Reform Alliance.  But that disadvantage is exacerbated if a business happens to operate in the suburbs of Philadelphia.”

“Every time a lawsuit is filed against one of New Jersey’s small businesses, every business’s insurance costs threaten to rise.  Business owners are telling us that even if it’s not their business being sued today, they still might incur costs and will need to make judgments about where to invest their business’s resources."

“This is not the kind of restraint we ought to have in a state with a 9.2% unemployment rate.  When 87% of small business owners in a state want change, it’s time for the Legislature to act.” 

The survey was conducted by the Eagleton Institute of Politics at Rutgers University.    Full results can be found our website, http://njlra.org.

New Jersey Trade Secrets Act Advances

Admittedly, when I think of “trade secrets,” I tend to think of multiples of, well, Trade Secret. 

But in New Jersey, the “trade secrets” referred to an important piece of legislation, S-2456, which unanimously passed the Senate Commerce Committee on Monday. 

Trade secrets aren’t the same as patents.  For instance, you might patent a life-saving drug, but the New Jersey Trade Secrets Act might refer to the process behind its manufacture.

Under A-921/S-2456, a company or organization would be able to sue for damages or losses that result from someone taking proprietary information (a recipe, chemical formula, invention, intellectual property, etc.) and trying to profit from it by selling it or manufacturing it.  If I take a secret recipe for a food item, sell it and make money from it, I would have to pay royalties to the company or person from whom I stole it.   

A-921 passed the full Assembly in late 2010.  Its Senate counterpart, however, was amended before being voted out of Committee, so the Assembly will need to vote on the amended version before it heads to the Governor’s desk.   

New Jersey is, of course, among a minority of states which have not passed the Trade Secrets Act.  More information about the Act can be found in the New Jersey Law Journal and on the Legislature’s homepage. 

Photos from NJLRA's Fall Membership Luncheon

 

 

 

Assemblyman Joseph Cryan (center), with David Kott of McCarter & English (left), and Marcus Rayner

 

 

 

 

 

Marcus Rayner (far left), and AnnMarie McDonald (far right), with Scott Ross of the New Jersey Petroleum Council and Michael Egenton of the New Jersey Chamber of Commerce

 

 

 

 

 

(From left) Michael McDonald and Joe Anson of Bayer Healthcare with Marcus Rayner

 

 

 

 

 

 

Paul Madrazo of Glaxo Smith Kline and MaryAlice Barrett of Roche with Eileen Kean (center)

Assemblyman Cryan: “Everybody wins if we curb frivolous lawsuits."

One thing is clear: NJ's hospitality industry could be severely impacted by Voss v.  Tranquilino.

Here are some highlights from Assembly Majority Leader Joseph Cryan’s (D-Union) keynote address at NJLRA’s annual Fall Membership Luncheon:

"As much as we try to help new businesses establish, hire people and flourish, we need to devote the same sort of efforts to making sure existing businesses and industries flourish. We all know that tort reform goes a long way to removing the obstacles that exist and actually prevent businesses and industries from growing.

"We've got to be able to give businesses and physicians and those who are impacted by what we [legislators] do some stability and some certainty in the marketplace. And hopefully together we can do that."

Cryan told the audience about his personal experience with lawsuit abuse in Middlesex County. His family-operated establishment was the third and largest of three establishments visited by an intoxicated patron. The patron, who was refused service by Cryan's establishment, fled as an employee attempted to call him cab and caused a fatal automobile accident. Cryan's establishment - the only establishment to refuse him service - ended up paying out half a million dollars in claims.

"I look at this recent Voss decision, for example, and the Supreme Court is going to potentially take down the whole hospitality industry... Have we kind of lost our way a little bit in terms of who's responsible for what?

The case refers to the New Jersey Supreme Court's decision in Voss v. Tranquilino earlier this year, which permitted an Ocean County motorcyclist to sue the establishment which served him for bodily injuries he sustained while driving under the influence.

"Tort reform isn't a Republican or Democrat issue - it's an economic issue," said Marcus Rayner, NJLRA’s executive director.

"That's why it's important to urge the legislature to support measures like A-3333/S-2855, which would help protect honest businesses from frivolous litigation," Rayner said.

NJLRA's Annual Fall Membership meeting tomorrow

Assembly Majority Leader Joe Cryan (D-Union) will be the keynote speaker.  Over 60 people have registered.

We’ll post event comments and photos as soon as we can.   

Tort Reform in New Jersey, Round 1 (2002 – 2003)

We get a lot of questions about tort reform efforts pre-NJLRA, particularly with respect to medical malpractice reform.  Here is a roundup of what occurred in New Jersey, 2002-2003.  Note: Since this effort predates NJLRA’s founding, please chime in with anything else that should be included. 

• Omnibus legislation was introduced in December 2002 with the sponsorship of then-Assembly Majority Leader Joe Roberts.  The legislation, A50, was intended to address escalating medical malpractice insurance premiums and concerns over a consequential shortage of doctors in New Jersey.  Liability insurance for New Jersey’s hospitals had increased an average of 50 percent in just the previous year.  Dubbed the “Patients First Act,” A50 called for a $300,000 cap on non-economic damages for physicians, nurses, and other healthcare professionals, while allowing plaintiffs to collect up to $1 million in “pain and suffering” from a special state fund; tightening the statute of limitations during which an individual could file a malpractice claim; create discoverability protections and medical error reporting to help healthcare providers improve patient safety; provide a “good Samaritan clause” for physicians providing emergency care on a volunteer basis. 

• December 12, 2002: A50 clears Assembly Health and Human Services Committee; Assembly Banking and Insurance Committee, and Assembly Appropriations Committee before being passed by the full Assembly, 44-20-12.  The $300,000 cap on non-economic damages for physicians, nurses, and other healthcare professionals is removed.

• January 2003: Unhappy with the removal of the $300,000 cap, physician groups organize a three-day “work stoppage,” despite pleas from legislative sponsors for restraint.

• March 2003: The Senate removes the $300,000 non-economic cap provision from its companion bill, S2174, before releasing it from the Health, Human Services, and Senior Citizens Committee with additional amendments.  It is passed by the full Senate, 32-5.

• April 2003: Doctors’ associations threaten a second work-stoppage if the cap is not reinstated.

• June 30, 2003: With heavy lobbying by the Trial Lawyers Association (now called the “American Association for Justice”) and waning physician sympathy, A50/S2174 dies on concurrence in the Assembly.