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.
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!
The following pieces of legislation were prefiled for introduction for the new legislative session, which officially began on January 10th. 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 |
A2473 |
Schaer, McKeon |
|
|
Permits litigants contesting class certification the right to immediately appeal that ruling. |
A4135 |
Chiusano, Wisniewski |
|
|
Caps noneconomic damages in medical malpractice actions at $250,000. |
A1367/S610 |
Weber, Chiusano, McHose |
|
|
Establishes a medical malpractice part in the Superior Court. |
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. |
A1982/S670 |
Conaway, O'Scanlon, Weber, Handlin, McHose, Angelini, Riley, Huttle, Chiusano |
|
|
Establishes limits for certain damages in medical malpractice actions. |
A1806/S1844 |
Casagrande
|
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.
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 215th legislative session, which begins next week. You can download a copy of NJLRA's testimony in support of business courts here.
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).
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.
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.
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 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.
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.
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:
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.
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.
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)
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.
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.
Assembly Majority Leader Joseph Cryan (D-Union) will be the keynote speaker at NJLRA’s annual Fall Membership Luncheon.
The event will take place at the Trenton Country Club in West Trenton on Tuesday, September 13, at noon.
Click here to RSVP now. It’s free, but an RSVP is required. We hope to see you there!
We all remember Tyler Clementi’s tragic suicide last year, which propelled the Anti-Bullying Bill of Rights Act through the Legislature. Just about everyone agrees that addressing student bullying is a positive step toward deterring the conditions which contributed to this young man’s untimely death. But as schools across New Jersey prepare to reopen next month, the unintended consequences of this law may end up may end up exposing school districts to costly liability that taxpayers will be forced to bear.
According to a recent report in NJ Spotlight, online and out-of-school liability emerged as an area of concern for school personnel during required training sessions held over the summer. Where to draw the line between parental and school responsibility has been a subject of debate for many years. With the implementation of the Anti-Bullying Bill of Rights Act, however, this responsibility and liabilities associated with it have been placed solely on school districts and the taxpayers which fund them. Trial lawyers in New Jersey have essentially been given a blank check to sue school districts on behalf of bullied children, no matter how ambiguous the term “bullying” may be.
School districts have an obligation to enforce New Jersey’s Law Against Discrimination and to be responsive to student bullying. But civil liability ultimately belongs on the backs of bullies, not taxpayers.
It’s something school districts will have to come to grips with this school year when the law goes into effect. Check out my letter-to-the-editor about it in the Courier News.
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.
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:
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.
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.
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).
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.
As we know, New Jersey is a class action lawsuit magnet. A piece of legislation introduced by Assemblymen Gary Chiusano and John Wisniewski, however, would bring more fairness to the process.
Imagine the following scenario: A New Jersey-based business becomes entangled in a product liability lawsuit. The plaintiff’s attorneys decide to file suit on behalf of everyone who bought a particular product, whether they were injured or not, and oftentimes without their knowledge. The judge certifies the group of unidentified consumers as a class, and a class-action lawsuit ensues, over defense objections to the certification. In our scenario, our business needs to go through the entire trial before it can appeal the judge’s determination of a class.
The legislation introduced by Assemblymen Chiusano and Wisniewski, however, would grant an immediate right to interlocutory appeal. In reality, a class certification usually means the end of the road for New Jersey civil defendants, because trying such cases is simply too expensive and burdensome. Many settle even if there is an error in certifying the class. A-4135 spares all parties time and expense.
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.
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.
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.
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.
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.”
You can listen to the hearing live on the Legislature’s homepage.
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.”
Full consideration by the State Senate is expected to take place in June, according to sources.
We’ve said it many times before: taxpayers lose when frivolous litigation is filed against government entities.
Money that could be spent on maintaining municipal services ends up being spent on attorney’s fees, even when a plaintiff’s damages aren’t apparent or quantifiable.
The Gloucester County Times reported over the weekend that several South Jersey towns are supporting legislation they say will “make lawyers think twice about filing any old lawsuit.” S-2404, sponsored by Senator Sean Kean (R-Monmouth) would cap the attorney fee awards that public entities are required to pay when a plaintiff receives a judgment.
The Municipal Excess Liability (MEL) Joint Insurance Fund recently released a study which showed a dramatic cost increase among closed claims over the last ten years. Fee-shifting laws often require the public entity to pay for the plaintiff’s legal fees as well as its own, leaving little disincentive for an attorney to file suit for small damages or unquantifiable cases.
S-2404 would cap attorney fee awards that public entities are required to pay at $50,000 if the plaintiff is awarded $50,000 or less. If the plaintiff is awarded more than $50,000, the attorney’s fees could not exceed that amount. For the average New Jersey town, this is a lot of money!
There is no Assembly version of S-2404 currently.
The path Anne Patterson is taking to the State’s highest Court can be confusing to most non-judicial scholars. Let’s recap:
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.
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.
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.
Senator Jeff Van Drew (D-Cape May) introduced the companion bill to A-3333 on Thursday, which would reform New Jersey’s oft-abused Consumer Fraud Act. The bill number is S-2855.
A-3333 has received bipartisan support in the Assembly and is sponsored by Assemblyman John McKeon (D-Essex) and co-prime sponsors Ralph Caputo (D-Essex) and Dominick DiCicco (R-Glouster). It is cosponsored by Assemblywomen Amy Handlin (R-Monmouth), Mila Jasey (D-Essex), Elease Evans (D-Passaic), and Alison Littell McHose (R-Sussex).
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.
The trials and tribulations Senator Diane Allen (R-Burlington) faced in New Jersey politics were front and center over the weekend in a Star-Ledger piece by Linda Ocasio.
A cosponsor of S-760/A-1982, which would enact many of the medical malpractice reform measures NJLRA supports, Senator Allen offers her perspective as to why it hasn’t been acted upon:
“If we had more women of either party, we’d get a lot of these things through,” Senator Allen said.
An extensive hearing of the bipartisan, bi-cameral Women’s Legislative Caucus last year underscored the declining number of OB/GYNs and subsequent impact on women’s access to care. After months of languish, the Assembly version of the bill passed favorably from the Assembly Health and Senior Services Committee, but was later second-referenced to the Assembly Judiciary Committee.
You can read the full Star-Ledger piece here.
As most LRW readers already know, New Jersey’s new legislative district map has arrived. Changes weren’t as drastic as some anticipated, and what this means for tort reform over the next decade remains to be seen. LehighValleyLive.com has the before and after photos:
We’ve mentioned in previous posts that New Jersey’s pharmaceutical companies shed 7 percent of their workforce last year, according to a report published by the Healthcare Institute of New Jersey.
As the Senate Budget Committee began its budgetary hearings for 2012 today, Senator Paul Sarlo asked Legislative Budget Officer David Rosen why, “despite ambitious pro-business policies touted by the governor,” the Garden State’s unemployment rate continues to exceed 9 percent.
“The fact that N.J.’s high end job market has largely been telecomm and pharmaceuticals – [those are] two industries that have been transformed largely beyond our control,” Rosen replied.
Of course, a third job field may have had an impact on the previous two: litigation tourism.
A cost-free way to stop the hemorrhaging of high end jobs is to enact changes to New Jersey’s Consumer Fraud Act, which has become one of the most abused laws of its kind. Assemblyman John McKeon has introduced legislation, A-3333, which would make the law less hostile for high-end industries in New Jersey.
Politicker NJ’s Darryl Isherwood has additional commentary on Monday’s budget hearing.
Assembly bill A-1982, sponsored by Assemblyman Herb Conaway, was voted out of the Assembly Health and Senior Services Committee today, 8 votes in the affirmative and two abstentions.
A-1982 takes steps to rectify the New Jersey Supreme Court’s 2010 decision in Ryan v. Renny, which gutted the affidavit of merit statute. It also protects volunteer physicians from medical malpractice liability and prevents insurance companies from immediately imposing an increase on doctors who are named in a malpractice suit.
Several committee members, including Assemblywomen Celeste Riley and Elease Evans, spoke of the impact New Jersey’s doctor crisis will have on women’s access to healthcare. New Jersey already has a 12% gap between the number of New Jersey’s patients and doctors available to treat them. This number is expected to widen by another 3,000 doctors by the end of the decade if changes are not made, and higher-risk specialties like obstetrics will be hit hardest.
Assemblywoman Nancy Munoz, who voiced language concerns in a previous hearing, and Assemblyman Jerry Green were the lone abstentions.
Assemblywoman Alison Littell McHose (R-Sussex) signed on as a cosponsor of A-3333, increasing the total number of sponsors and cosponsors to seven. She joins primary sponsors Assemblymen John McKeon (D-Essex), Ralph Caputo (D-Essex), and Domenick DiCicco (R-Glouster), and cosponsors Assemblywomen Amy Handlin (R-Monmouth), Mila Jasey (D-Essex), and Elease Evans (D-Passaic).
A-3333 calls for reforms to New Jersey’s oft-abused Consumer Fraud Act (CFA). If enacted, A-3333 would do the following:
More information about New Jersey’s CFA is available on NJLRA’s website.
Sherman “Tiger” Joyce, president of the American Tort Reform Association (ATRA), had the following to say about New Jersey’s prospects for civil justice reform in The Metropolitan Corporate Council publication:
“Of course, the litigation industry also remains strong throughout New Jersey, home to once-and-future judicial hellholes, and ATRA expects it to again push an expansion of wrongful death liability while actively opposing consumer fraud reform. But tort reformers, backed by Governor Chris Christie, have some momentum. They support three affirmative reform bills already filed during the current legislative session. One seeks to limit appeal bonds to the total value of the monetary judgment or $50 million, whichever is less. Another would revise the individual's cause of action under the Consumer Fraud Act and make other revisions regarding applicability (see trial lawyers' opposition noted earlier). The third pertains to liability, standards of care and insurance coverage for medical malpractice actions.”
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.
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.
Below are the 2011 legislative committee dates for the committees of particular interest to NJLRA (Judiciary, Health and Senior Services, & Economic Growth), along with anticipated voting session dates for the Assembly and Senate. Legislative Digest also has the complete committee legislative calendar through March 21st online.
THURSDAY, JANUARY 6, 2011
SENATE SESSION 2:00 PM Senate Chambers
Voting Session: Board list to be announced
ASSEMBLY SESSION Assembly Chambers
Voting Session: Time and board list to be announced
MONDAY, JANUARY 10, 2011
SENATE SESSION 2:00 PM Senate Chambers
Voting Session: Board list to be announced
ASSEMBLY SESSION Assembly Chambers
Voting Session: Time and board list to be announced
TUESDAY, JANUARY 11, 2011
JOINT SESSION
Joint Session to receive Governor's State of the State Address.
THURSDAY, JANUARY 20, 2011
SENATE QUORUM 12:00 PM Senate Chambers
1:00 PM: Senate Health, Human Services, and Senior Citizens scheduled to meet
ASSEMBLY QUORUM Assembly Chambers
10:00 AM: Group (A) Assembly Health and Senior Services scheduled to meet
2:00 PM: Group (B) Assembly Commerce and Economic Development scheduled to meet
MONDAY, JANUARY 24, 2011
ASSEMBLY QUORUM Assembly Chambers
10:00 AM: Group (C) Assembly Judiciary Committee scheduled to meet
MONDAY, JANUARY 31, 2011
SENATE QUORUM 12:00 PM Senate Chambers
10:00 AM: Group (3) Senate Economic Growth scheduled to meet
1:00 PM: Group (4) Senate Judiciary scheduled to meet
THURSDAY, FEBRUARY 3, 2011
ASSEMBLY QUORUM Assembly Chambers
10:00 AM: Group (A) Assembly Health and Senior Services scheduled to meet
2:00 PM: Group (B) Assembly Commerce and Economic Development scheduled to meet
MONDAY, FEBRUARY 7, 2011
SENATE QUORUM 12:00 PM Senate Chambers
1:00 PM: Group (2) Senate Health, Human Services, and Senior Citizens scheduled to meet
THURSDAY, FEBRUARY 10, 2011
ASSEMBLY QUORUM Assembly Chambers
10:00 AM: Group (C) Assembly Judiciary Committee scheduled to meet
MONDAY, FEBRUARY 14, 2011
SENATE QUORUM 12:00 PM Senate Chambers
10:00 AM: Group (3) Senate Economic Growth scheduled to meet
1:00 PM: Group (4) Senate Judiciary scheduled to meet
THURSDAY, FEBRUARY 17, 2011
SENATE SESSION 2:00 PM Senate Chambers
Voting Session: Board list to be announced
ASSEMBLY SESSION Assembly Chambers
Voting Session: Time and board list to be announced
THURSDAY, MARCH 3, 2011
SENATE QUORUM 12:00 PM Senate Chambers
11:00 PM: Group (2) Senate Health, Human Services, and Senior Citizens scheduled to meet
ASSEMBLY QUORUM Assembly Chambers
10:00 AM: Group (A) Assembly Health and Senior Services scheduled to meet
2:00 PM: Group (B) Assembly Commerce and Economic Development scheduled to meet
MONDAY, MARCH 7, 2011
ASSEMBLY QUORUM Assembly Chambers
10:00 AM: Group (C) Assembly Judiciary Committee scheduled to meet
THURSDAY, MARCH 10, 2011
SENATE QUORUM 12:00 PM Senate Chambers
10:00 AM: Group (3) Senate Economic Growth scheduled to meet
1:00 PM: Group (4) Senate Judiciary scheduled to meet
MONDAY, MARCH 14, 2011
SENATE SESSION Senate Chambers
10:00 AM: Committees at the call of the Senate President
ASSEMBLY SESSION Assembly Chambers
Voting Session: Time and board list to be announced
MONDAY, MARCH 21, 2011
SENATE SESSION 2:00 PM Senate Chambers
10:00 AM: Committees at the call of the Senate President
Voting Session: Board list to be announced
I am happy to report that the 214th NJ legislature has taken positive first steps toward reforming New Jersey's civil justice climate. Most notably, A-2473/S-480, which extends appeal bond caps to all industries, is now on second reading in the General Assembly. We also saw efforts to reform New Jersey's oft-abused Consumer Fraud Act with the introduction of A-3333. Finally, the Assembly Health and Senior Services Committee held a hearing earlier this year on A-1982, which would reform New Jersey's medical malpractice environment for our state's doctors. Collectively, these initiatives would discourage frivolous class-action litigation and enhance the integrity of scientific evidence admitted in our courts. NJLRA would like to thank all of the bills' sponsors and the legislative leadership in both parties for their commitment to advancing pro-business legislation. Together with our supporters, we are able to educate the legislature on the importance of these initiatives. Senator Raymond Lesniak (D-Union), who was NJLRA's keynote speaker at our Fall Membership Luncheon, said NJLRA's proposals will be a "cornerstone" of the state's effort to reposition New Jersey's economy for long-term growth. We enthusiastically accept Senator Lesniak's wisdom.
If you think you have seen more of NJLRA lately, it's because we have increased efforts to get our message out. In 2010 we re-launched our website, where you can find any of the eight op-eds I authored over the past year. NJLRA has also been the focus of several news stories and has written a dozen letters to-the-editor. I encourage you to visit NJLRA's Blog and Facebook page. You can also follow us on Twitter.
We continue to make an effort to reach out to New Jersey's small business community. A recent poll we conducted in conjunction with the Monmouth University Polling Institute suggests that many of the Garden State's small businesses feel vulnerable to abusive lawsuits. We are hoping to articulate the unique needs of New Jersey's small business community as we meet with legislators across the state.
As we have said in the past, New Jersey cannot recover from this recession without sound policies that support job growth. With limited resources to fund tax breaks or business incentives, legal reform offers policymakers in Trenton a revenue-neutral policy change that can send a very strong message to employers all across the nation. States which have enacted tort reform, including Texas, now lead the country in job growth and physician retention.
Thank you again for your continued support. I am confident that we will continue our path toward reforming New Jersey's civil justice laws in 2011. Please save the date for NJLRA's first Membership Meeting of 2011, which will be held on Tuesday, March 8th at noon at the Trenton Country Club. We will discuss our plans for 2011. As always, please do not hesitate to contact me if I can ever be of assistance.
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?
Small businesses have historically played a crucial role in getting the workforce back on track after economic disarray, and in New Jersey, they have served a crucial cultural purpose as well. The fact that nearly one-in-five small businesses has seriously considered leaving New Jersey should set off alarms.
FOR MANY OF US it may be hard to conceptualize, but there was a time in New Jersey’s recent history when our state was a beacon for the American Dream instead of a disincentive to it.
An abundance of natural resources, an educated workforce and low business costs made the Garden State ripe for the mom-and-pop shops and diners that at one time penetrated nearly every Main Street across the state.
Read NJLRA’s op-ed today in The Record.
