Lawsuit Reform Watch

'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. 

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. 

And the worst lawsuit of 2012 is...

Carteret resident Ellen Shane’s “Thanks for saving my life.  That’ll cost you $5 million” lawsuit.    

 

When Carteret resident Ellen Shane was taken hostage at knifepoint at Woodbridge Center Mall earlier this year, a Woodbridge Township police officer valiantly saved her life, shooting the hostage taker as he lunged toward Shane and her husband.  His thanks?  The couple filed a $5 million lawsuit against the police department, claiming that she was traumatized.  Read More. 

Shane ‘won’ this infamous distinction with nearly 2/3 of the vote, our widest Worst Lawsuit margin to date.

Thank you to everyone who participated in our poll! 

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.  

Bad faith bill reintroduced

Superstorm Sandy did something few insurance brokers could do: it forced homeowners to, in some cases, read their insurance policies for the first time. 

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. 

The pot brownie lawsuit

A Hunterdon County Country Club may be on the hook for a prank played by two of its members. 

James Kavanagh, Jr. and Gregg Chaplin convinced their 68-year-old friend, Barry Russo, to eat a “delicious” brownie, the product of Kavanagh’s “special culinary training.”

You guessed it: the brownie was laced with pot. 

The behavior of Kavanagh and Chaplin may more closely resemble sophomoric teenage trouble making than the caliber of Copper Hill Country Club’s average patron.  According to the diabetic Russo, this prank may have contributed to his feeling “light-headed and dizzy,” among other ailments. 

Russo is suing the Copper Hill Country Club, its owner, and the two men for an undisclosed amount of money.  And no, neither the Copper Hill Country Club nor its owner is alleged to have participated in the lacing or ingestion of said brownie. 

Chaplin vehemently disputes Russo’s account. 

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.

When a child drinks cologne, by all means, sue the doctor...

It’s a story that’s easy to miss in the post-Sandy, post-Election Day, “fiscal cliff” news cycle, but one that will stick with you for a while after learning about it. 

A New Jersey appeals court has determined that an emergency room doctor must stand trial for failing to report to the Division of Youth and Family Services that he treated a child who ingested cologne. 

The 3-year-old patient, identified in court papers as “S.A.,” was abandoned by her mother soon after birth in 1998.  The Division (DYFS) placed her in the care of her father two years later.  She was brought to Jersey Shore University Medical Center in Neptune in early 2001 by other relatives, who said that she was “walking with an unsteady gait and was observed as lethargic and weak with an unusual odor on her breath.”

From a layman’s standpoint, it appears that the emergency room doctor, Daniel Yu, performed a thorough examination, leading him to conclude (correctly) that the young child ingested cologne.  She was treated and her extended family was on its way. 

Two months after the cologne incident, DYFS received a disturbing report: S.A., still under her father’s care, had been severely burned and beaten.  She had chemical burns on various parts of her body, including her vagina.  At this point S.A. was removed from her father’s custody by the Division.  She was later adopted by the plaintiff in this case, L.A. v. DYFS, A-2726-11, who is identified as L.A. in court papers. 

 

And in 2007, L.A. filed suit – not just against the Division, which evidently had some history with the child’s family – but against Dr. Yu and Jersey Shore University Medical Center.  DYFS settled with L.A. for $5 million.  No suit was filed against the child’s abuser.  

N.J.S.A. 9:6-8.10 requires anyone who believes a child is being abused or neglected to contact DYFS.  Mercer County Superior Court Judge Paul Innes didn’t believe that a toddler ingesting a foreign substance was indicative of abuse.  It’s the sort of thing that happens in the happiest of homes from time to time, to the tune of at least 100,000 childhood emergency room visits each year.  The appellate court, however, disagreed with his assessment, and the case will be going forward. 

The medical community fears that if Dr. Yu and the hospital are found liable, doctors and hospital staff will be pressured to report abuse for tiniest of infractions, overwhelming a DYFS system that is already overwhelmed and creating an adverse affect on children’s health and well-being.  The threat of DYFS involvement may discourage parents from seeking immediate care when children swallow things they shouldn’t, mask their child’s symptoms, or even deter them from bringing their child to the emergency room altogether in order to avoid the legal scrutiny and uncertainty to follow. 

The need to reform our legal system isn’t just about the taxes we pay or improving New Jersey’s economy.  It’s also about injecting common sense into real-life situations we all face. 

So, should the doctor and hospital be found liable of malpractice for not reporting that a toddler drank cologne to DYFS, you may want to prepare yourself for a barrage of questions the next time you take your kid to the E.R. for sticking a LEGO in his ear.     

Gas cans and natural disasters become the new face of legal reform

The chaos and heartache brought about by Hurricane Sandy forced New Jerseyans to appreciate the utilities and shelter we often take for granted, and incidentally, renewed our appreciation for gasoline and the containers which store it. 

You may not realize it, but if you used a gas can during Hurricane Sandy and its aftermath, it was likely manufactured by Blitz, a company in a small Oklahoma town.  And sadly, it's now a relic of the pre-lawsuit abuse era.

Blitz sold more than 14 million cans per year for the last decade, which translates to 75 percent of all gas cans sold in the United States.  Fewer than two incidents per million cans sold were reported, and most involved obvious misuse.  Pouring gasoline from the container onto an open fire was a common theme. 

Of the 62 cases filed since 1994, only two made it to court and only of those cases was successful.  The rest were settled or dismissed, notes a New York TImes report.  Nevertheless, it still cost the Oklahoma-based company $30 million in legal fees, and presumably, higher insurance premiums to cover the additional $30 million paid by their insurance companies.   Sadly, these costs of doing business in America forced the leading manufacturer of gas cans in the United States to close its 117-person operation for good.  Buying domestic also just got a bit harder. 

For New Jerseyans who retained their homes but lost their power, gasoline offered somewhat of a lifeline for those with generators to fill.  And as shelters and motels filled to capacity, generators were able to keep more people in their homes even as temperatures dropped.  A not-so-small silver lining during a catostrophic storm.   

Of course we hope we never see a storm of Sandy's magnitude ever again.  But if we do, the absence of Blitz in our markets may make generator-powered electricity a difficult commodity to deliver.  

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.

Seeing Red All Over

When red is the only color your skin turns, you tend to take note of the sunblock products that work.  After all, it’s a bit obvious when a particular line of sunscreen fails.  Pictured is one of my personal favorites, Coppertone’s sensitive skin SPF 50. 

But under New Jersey's Consumer Fraud Act, what’s obvious to the consumer can have little bearing on the outcome.  New Jersey-based Merck just settled a longstanding class action lawsuit in which plaintiffs claim that the power of Coppertone was overstated in advertising, using words such as “waterproof,” “sweatproof,” and (shocker) “sunblock.” 

Originally developed by Schering-Plough, Merck acquired Coppertone (and its lawsuit) when it bought Schering in 2009.  The case was originally filed in 2003.  And consumers, like me, readily used Coppertone products in ignorant bliss in the interim, unaware that our UVA-protected skin wasn’t as protected as the attorneys in this case contend. 

Here’s how things will change under the settlement: Coppertone will stop using the words “sunblock,” “waterproof,” “sweatproof,” and “all day” on its labeling.  The content of the sunscreen will remain the same.  Yes, the same.  And under this $3- $10 million settlement, I will get $1.50.  According to Reuters, Merck stated that it agreed to the settlement “solely for the purpose of avoiding the burden, expense, risk and uncertainty of continuing to litigate those issues."

Nice of the lawyers to reward me with $1.50 for my patronage and leave my product formula intact.  Heck, for $1.50 I can get:

• 3 postage stamps;
• 1/3 of a latte;
• One-way bus fare in Los Angeles

I can’t get a bottle of sunblock, but apparently that’s beside the point.

Now if only I could figure out how to collect. 

Our legal system in a nutshell

Stephan Pastis cartoon in Sunday's Star-Ledger

U.S. Chamber: New Jersey’s Civil Justice System ranks in bottom half of states for third consecutive year

The most successful corporations in the United States view New Jersey's civil justice climate as worse than most, according to a study released by the U.S. Chamber of Commerce.

General Counsels from the nation's leading employers said that thirty-one states do a better job of executing civil cases timely and fairly.

"What the Chamber's study tells us is that successful corporations are aware of New Jersey's reputation for attracting abusive lawsuits, and they're thinking twice before expanding here," said Marcus Rayner, executive director of the New Jersey Lawsuit Reform Alliance.  "Even though the economy has improved slightly, New Jersey is no better positioned to prevent abusive lawsuits from entering our court dockets than it was two years ago."

"New Jersey was once known as the nation's 'Medicine Chest' because so much of our economy is dependent upon the viability of our pharmaceutical companies and the life sciences.  Every dollar that is spent fighting frivolous litigation is a dollar that won't be used to strengthen our economy or invest in life-saving research."

The study can be found online on the U.S. Chamber of Commerce's website: http://www.instituteforlegalreform.com/states.

NJ Supreme Court Says ‘No’ – Why Pet Owners' ‘Emotional Distress’ Doesn’t Hold up in Court

In part, it’s, the human-versus-animal, possession-versus- humankind argument.

New Jersey resident Joyce McDougall witnessed her cute Maltese-poodle’s violent death at the hands (paws?) of another dog in Morris Plains.  She filed suit for the cost of a replacement dog, and for emotional distress. 

A trial court agreed that she should receive more than the cost to replace her pet and issued her $5,000.  But being compensated for emotional distress was reserved for people who witness the violent death of a close family member, they said, based on the 1980 Portee v. Jaffee doctrine.  The New Jersey Supreme Court unanimously upheld that decision this week. 

In a much-needed reality check, Justice Helen Hoens observed that the vast majority of states do not allow owners to sue for emotional distress when their animals are killed.  And beyond that, the Courts have been very limited in what they consider to be a “close family member” under this doctrine.   The New Jersey Law Journal notes that an appellate court in the 1980s said it did not apply to a woman who saw her 5-year-old neighbor, with whom she was very close, mauled to death by a circus animal (Eyrich ex rel. Eyrich v. Dam, 193 N.J. Super. 244).   

"It would make little sense, we think, to permit [the] plaintiff to recover for her emotional distress over the loss of her dog when she would be precluded from any such recovery if she instead had the misfortune of watching a neighbor's child, whom she regarded as her own, torn apart by a wild animal," Hoens said.

And if the Court were to expand Portee to include animals, it would open the floodgates for New Jerseyans to sue for emotional distress after watching heirlooms or other property destroyed, the Justices reasoned.  As if New Jersey needs any help maintaining its status as a Judicial Hellhole…

Rayner on Aurora Massacre: Don’t blame Warner Brothers

Listen to executive director Marcus Rayner discuss the first of what is expected to be many lawsuits stemming from the movie theatre massacre in Aurora, Colorado on 1210 WPHT Philadelphia with Rich Zeoli. 

“There’s only one person who’s responsible, and it’s the guy who’s been arrested.”

The controversial lawsuit was filed by a survivor of the massacre who was not physically injured.  His lawyers say they are considering filing suit against everyone from Warner Brothers to the shooter’s doctors, to the move theater itself.  The suspect, who was unemployed, does not seem to make the cut.   

You can listen to the entire segment here: http://philadelphia.cbslocal.com/personality/rich-zeoli/#

TMZ: First Lawsuit Over James Holmes Massacre. Lawyer says "Somebody has to be responsible for the rampant violence that is shown today."

Yes, that would be the killer. 

A survivor of the Aurora, Colorado theatre massacre has hired an attorney and plans to file suit for his extreme emotional distress.  According to TMZ, Torrence Brown, Jr. and his attorney are considering who to target for compensation – the movie theatre, the shooters’ doctors, or Warner Brothers.  The alleged shooter, who was unemployed, apparently doesn’t make the cut. 

It’s not surprising that this massacre, like so many before it, has revived a national conversation about gun control.  Governor Christie has said that such a debate is premature for a nation in mourning.  But what is as surprising as it is appalling, however, is the speed at which Brown’s attorney unabashedly began screening potential defendants to vet the best way to leverage our legal system for financial gain. 

Brown wasn’t physically injured, but his friend, eighteen-year-old A.J. Boik, was shot in the chest and died.  

Funerals for A.J. and other victims will take place later this week.    

The difference is, charging excessive fees is fair when WE do it…

A class action lawsuit brought by major corporations and trade associations against Visa, Inc., and Mastercard, Inc., charged that the companies’ fees to retailers were excessive.  And after a $725 billion settlement, the plaintiffs are seeing that the defendants aren’t the only ones charging high fees. 

The settlement includes a $1.2 billion temporary fee-reduction.  With history as a guide, attorneys can make as much as $600 million, which is roughly 10 percent of the remaining settlement.  This puts it on par with fees received by lawyers during Enron, WorldCom, and Tyco litigation according to an expert quoted in a Reuters report. 

And yes, a new ‘swipe fee’ may be in order for consumers as a result of the settlement. 

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.

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.

A driver reads a text and causes a serious accident. But it might be the sender’s fault.

A New Jersey court will soon decide whether a woman who sent a text message to an irresponsible teenager is liable for the accident he caused.

It was a horrible accident: the Morris County teenager, tinkering with unimportant texts while behind the wheel, struck a motorcycle ridden by a couple.  They were severely injured and each had a leg amputated.  They’ve described it as being in prison, and their lives will never be the same. 

To make matters even worse, the driver, Kyle Best, received a mere slap on the wrist – a nominal fine and some community service.  The law didn’t even require his license be revoked.  He’s free to drive and risk the penalties for texting while driving again if he so chooses. 

But the couple’s attorney has filed a lawsuit against not just the teenager – but the person he was conversing with via text at the time of the accident. 

“The victim's lawyer claims the woman aided and abetted the driver's negligence by texting him when she knew or should have known he was driving,” according to an Associated Press report.  “However, her lawyer is seeking to have her dismissed as a defendant, saying she had no control over when the driver would read the message. He also claims the legal arguments made by the victims' attorney are not supported by case law.”

The Daily Record reports that Morris County Superior Court Judge David Rand is expected to decide on May 25^th whether to dismiss Shannon Colonna, the woman who sent the text message to Best, as a defendant in the suit. 

NJLRA mused over the implications if the court finds the text-sender liable: will people need to sign waivers before we can hand them a bottle opener?  It would open a legal can-of-worms bound only by a lawyer’s imagination and ability.  What’s next, “the phone made me do it”?

It’s a painful situation in which New Jerseyans have to wonder how our legal system became so unfair.  Dismissing the claim against Colonna wouldn’t right the wrongs committed against the couple.  But it would help bring common sense and personal responsibility back into the legal equation. 

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. 

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. 

48 hours after a fender-bender...

Insanity, behold the courts!

Einstein famously said that the definition of insanity is doing the same thing over and over again and expecting different results. 

Yet, that’s the legal tactic trial lawyers have employed against Merck, one of the state’s leading employers.

At issue is whether Fosamax, a drug designed to prevent osteoporosis, caused osteonecrosis of the jaw (ONJ). 

Juries are unconvinced.  Six bellweather cases have gone to trial, and Merck is currently on a five-case winning streak.  Its only hiccup was the first Fosomax case, which ended in a mistrial.  (A subsequent trial awarded the plaintiff $8 million in damages, which was later reduced to $1.5.  The plaintiff’s attorneys have asked for a new trial on damages, which is scheduled for September).

Despite being 1-for-6, there are still 2,345 state and federal Fosamax product liability cases pending against Merck.  It’s insanity yielding to a let’s-keep-trying-until-we-get-it-right offensive.  After all, no matter how insane it seems to continue to pursue such cases, there really isn’t a downside for plaintiffs’ attorneys – just Merck, its employees, and those who rely on it for life-saving drugs. 

Cuts to the courts make their way into our homes

You know it’s serious when legal reformers and trial lawyers agree.

Legal reformers consistently argue that when the publicly-financed civil court system is inundated with absurd litigation, the brakes are put on justice for everyone else. 

Child custody cases, divorces, landlord-tenant disputes, and temporary restraining orders sought by battered women must compete for the same day in court as the guy who sues the bar after crashing his motorcycle in a drunken stupor and the woman who spills hot coffee on her lap. 

And that day in court, of course, is underwritten by taxpayers.  So when funding is cut to the judicial branch, as it was in 42 states last year, the pace of justice slows considerably.

"The impact on people in great distress, such as abused women seeking temporary restraining orders, is beyond measure in money," says Jon Streeter, president of the State Bar of California.

The simplest divorce cases can now take a year to resolve in some states.  “Such delays are not just creating inconvenience for people trying to claim money from landlords or tenants, or fight traffic tickets.  Court cuts are hitting people where they live,” writes Alan Greenblatt for NPR. 

Criminal cases take precedence over civil cases, of course. But that’s hardly comforting to the everyday Americans who need the civil court system to protect them or make them whole.  One circuit in Georgia stopped hearing civil cases altogether. 

Backlog in states have become so significant that Institute for Legal Reform President Lisa Rickard and American Bar Association President Bill Robinson III pleaded with lawmakers to take cuts to the judiciary seriously.  "When states financially starve their judiciaries, they inadvertently create environments toxic to economic growth," they wrote in an op-ed in USA TODAY. 

Read NJLRA’s op-ed in The Daily Record

Lawsuit reform would boost industry

If you are a New Jersey resident, there is a good chance that you know someone who is employed by one of the 24 pharmaceutical and medical technology companies which have crowned us the nation’s  medicine chest. Some 51,000 residents earn their livelihood at one of these entities, which produce everything from life-saving drugs to baby shampoo. Another 70,000 New Jersey residents collect paychecks from the industry through service contracts.

Our status as the nation’s medicine chest has roots in this area stemming as far back as the Industrial Revolution. Since then, New Jersey’s highly-skilled workforce, transportation hubs, and infrastructure have captured the industry in a natural embrace: the medicine chest companies and their offspring had an economic impact of $24.2 billion in 2010 alone.

Click here to read the entire op-ed in The Daily Record.

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. 

Unnamed Trenton Bar is the latest New Jersey establishment to be sued for a patron’s intoxication

Whether you live or work in the Trenton area (or just read about it on occasion), you may remember the unfortunate death of a man who had fallen into a snow bank at the intersection of South Warren and West Front streets last winter. 

Quirino Azcona, a popular deliveryman whom friends called “Cabrera,” stopped at an unnamed bar after his shift ended at Supreme Food in the City’s South Ward in late January 2011.  Fresh snow lined the path he took to his residence in the West Ward.  Surveillance footage suggests that he was heavily intoxicated, stumbling several times before he fell into a snow bank and didn’t get up.  He laid there for an unspecified period of time, hidden from sight by the snow, before he was tragically caught in a city plow and gruesomely killed.

In addition to the City, Azcona’s estranged wife and children have decided to sue the bar. 

"The bar served him to the point where he was intoxicated," his lawyer said in a statement to the Times of Trenton.  "The poor guy got drunk, went out into the snow and got run over by a snowplow.”

Yes, the poor guy got drunk after drinking alcohol.  What reasonable adult could anticipate such a consequence?

The weather conditions certainly were a key contributor to Azcona’s accident, but I suppose the bar is a defendant when Mother Nature is unavailable.   We’ve seen similar situations before. 

We’ve all been warned about the consequences of drinking and driving (really, the consequences of drinking and doing just about anything), which is why most bar patrons take precautions when consuming alcohol.  But as the suing-the-bar-where-you-voluntarily-drank-alcohol-trend continues, the courts are allowing the intoxicated and their kin to shift responsibility to others rather than hold them responsible for their actions (see Voss vs. Tranquilino, Killarney’s in Hamilton, et. all). 

We probably won’t ever know if the unnamed bar in question is the only establishment Azcona patronized on the night of his death, or whether things may have turned out differently if he had been walking with a friend instead of alone.  But we can use his untimely death as an opportunity to remind the public to take weather conditions into account when enjoying a night out, even when planning to walk.  And, hopefully, keep others from meeting a similar fate.  This isn’t something that a lawsuit can do. 

The plaintiffs’ attorneys will argue that personal responsibility is too much of a buzz kill for patrons, so the bar needs to supervise the adults in their presence.  But judging by the comments associated with the Times of Trenton’s story, it seems that most of us agree that having a bar play nanny to its patrons is a greater buzz bill.   

Azcona certainly isn’t the first person to pass out in a drunken stupor after leaving a bar.  But if the suing-the-bar-where-you-voluntarily-drank-alcohol-trend continues in New Jersey, nightlife in the Garden State may undergo an involuntary rehab.

Read NJLRA’s letter-to-the-editor in the Times of Trenton

 

Advocating for traffic changes might be more helpful 

Carl Wilkins’ family suffered an unspeakable nightmare when their loved one was tragically struck and killed after a double hit-and-run incident. The family’s attorney has indicated that they intend to sue NJ Transit, the state of New Jersey and Ewing Township for his death, along with the women who committed this crime (“Hit-and-run victim’s family targets NJ Transit, Ewing, state, 2 others,” Feb. 8).

The individuals who killed Mr. Wilkins deserve to be found liable for their actions. Taking the law a step further, however, and suing the township, state and NJ Transit is costly and misdirected anger. There is no question that this was a tragedy. But as Ewing Township fights to keep its streets safe with fewer police officers, adding a hefty lawsuit to the agenda will undoubtedly jeopardize their ability to provide the services we have become accustomed to as taxpayers.

Suing Ewing Township won’t make crossing the street safer. But working with local and state government to address traffic patterns instead of working against them may yield the changes we need to prevent a tragedy like this from happening again.

-- Marcus Rayner, Feb 23^rd  
Trenton
The writer is executive director of the New Jersey Lawsuit Reform Alliance (njlra.org).

A dirty secret the Kiddie Kollege nightmare left behind

In 2006, children at a South Jersey daycare facility played freely.   Then state inspectors informed them that their facility existed on a heavily contaminated former thermometer factory.  A class action lawsuit against the building’s owners, as well as local, county, and state government entities found all parties liable. 

It may take several years until all of the damage done to these children comes to light, which is why the judge ordered each of these entities to pay for the children’s medical monitoring until age 24.  The fund was supposed to consist of $1.5 million for neuropsychological tests for the 100 children involved.  Early detection and treatment if health problems emerge, the order stressed. 

But so far, nearly 6 years parents were first told that their children were subjected to unsafe levels of mercury at Kiddie Kollege, not a single test has been administered through this fund. 

 

As is the case with far too many class-action lawsuits, the victims’ plight has taken a back seat to disputes over attorneys’ fees.  $1.5 million was put in escrow for medical testing last year.  But the $3 million requested by the five law firms representing the plaintiffs and $1.4 million already paid to Franklin Township’s attorney by its insurer are far from settled, delaying the children’s medical monitoring.  The township’s attorney has even asked for a new trial. 

The children who this case was supposed to be about haven’t accessed the testing that may affect the quality and duration of their lives.  But the lawyers who fought for it (and against it) probably don’t want you to know that. 

Lawsuit Abuse: Now Affecting Your Child’s Future

We already know that lawsuit abuse impacts access to healthcare, insurance costs, and (if you live in New Jersey) your ability to profit from driving under the influence.  But a new study suggests that frivolous litigation may have extended its reach to the playground as well. 

According to research conducted by the American Academy of Pediatrics, three primary barriers have been identified which impede children’s usage of playgrounds.   A greater focus on academics and a lack of financial capital to install or maintain equipment isn’t necessarily surprising.  But “risk of injury” is a barrier which is un-divorceable from liability. 

Daycare centers, schools, municipalities, YMCAs, and other public entities (read: taxpayers) may be in legal jeopardy if a child is injured, irrespective of the reason.  This reality has prompted playgrounds to adopt a plastic, safety-minded exterior – to the point of boredom.  Alice G. Walton writes in the Atlantic that children master such equipment quickly and move on to more intoxicating electronic stimuli.  Monkey bars just aren’t as exciting when they’re so low to the ground that you can walk, instead of holding on for dear life. 

“Safety guidelines, which are admittedly important, can defeat the very purpose of the playground: rather than promoting physical activity, they are dampening it,” writes Walton. 

Of course, experts say that the ripple effects of dwindling, unstructured playtime will affect how today’s children solve problems and resolve conflict as adults.  Fewer cuts and bruises may save entities hefty seesaw-induced legal fees later on, but at the cost of a sedentary childhood. 

Lawsuit abuse has managed to make its way to the playground.  And it’s a painful reality to digest. 

Bergen County pharmacy settlement in the running for U.S. Chamber of Commerce’s Ridiculous Lawsuit

A $4.1 million settlement awarded to a north Jersey man who overdosed on stolen drugs as a teen is gaining national infamy.  The U.S. Chamber of Commerce nominated it for this month’s Most Ridiculous Lawsuit http://www.facesoflawsuitabuse.org/. 

The plaintiff, who said the neighborhood pharmacy should have done a better job of guarding the drugs his friend stole, sued several partygoers, the host, and the host’s mother in addition to the pharmacy. 

The pharmacy will pay the majority of the settlement.

As of today, the Bergen County settlement is killing the competition by a 3 – 1 margin.  You can cast your vote on the Institute of Legal Reform’s website.     

"In this case, the pharmacy was the victim - not the plaintiff, who made a decision to ingest stolen drugs.” said Marcus Rayner, NJLRA’s executive director.   “Yet it is the pharmacy that is being denied justice by today's legal system and the drug user who is benefiting from it.”

“This case underscores just how much our tort system has become out-of-step with common sense and fairness.  Instead of investing in Ridgewood's local economy, Harding Pharmacy will be sending $1.9 million to the pocket of a man who made poor and illegal choices,” he said. 

Doesn’t this just make your heart, um, not swell with pride?

Have you cast your vote for the craziest lawsuit of 2011 yet?

 

 

 

 

NJLRA Statement on $4.1 Million Settlement Awarded to Man Who Overdosed on Stolen Drug

Since you just can’t make some things up (“Man who overdosed at teen house party awarded $4.1 million settlement,” Markos, The Record), here is NJLRA’s statement:

Ridgewood drug store to pay nearly half; underscores need for legal reform

TRENTON, N.J. – Marcus Rayner, executive director of the New Jersey Lawsuit Reform Alliance, released the following statement regarding a $4.1 million settlement awarded to a 21-year-old who overdosed on Xanax stolen from a local pharmacy:

“In this case, the pharmacy was the victim – not the plaintiff, who made a decision to ingest stolen drugs.  Yet it is the pharmacy that is being denied justice by today’s legal system and the drug user who is benefiting from it. 

“The pressure to settle cases – even ones as ridiculous as this – is high, particularly for small businesses like Harding Pharmacy.  This isn’t CVS or Walgreens, with a legal department to handle such matters.  This is a neighborhood business, which settled a case of questionable merit presumably because the cost of justice is simply too high and out-of-reach. 

“In New Jersey a drunk driver can already sue a bar tender if he injures himself while driving under the influence.  Apparently pharmacies which have drugs stolen from them can be financially liable for thieves’ overdoses.  It is a classic example of abusing the system in the hopes of winning a jackpot judgment at everyone else’s expense. 

“This case underscores just how much our tort system has become out-of-step with common sense and fairness.  Instead of investing in Ridgewood’s local economy, $1.9 million will be going into the pocket of a man who made poor and illegal choices. 

Scott Simon voluntarily ingested Xanax stolen by a friend who used to work for the pharmacy nearly four years ago.   His cohorts did not seek immediate medical attention after he went into a coma.  Harding Pharmacy will pay $1.9 million.  Other parties will pay the remaining amount. 

Read Marcus’s letter-to-the-editor in today’s Record

A Florida resident, who makes a living by suing under the Americans with Disabilities Act (ADA), is poised to make litigation tourism New Jersey’s premier industry. 

“The ADA was intended to protect consumers, not liquidate businesses.”

Read it here in The Record. 

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. 

Faking a disability? Don’t post it on Facebook.

Unfortunately, it occurs all too often: a plaintiff overstates, inflates, or fabricates an injury altogether after an auto accident and seeks compensation. 

And then she posts photos of herself completing a 5k on Facebook. 

Defendants are beginning to fight back, asking courts for permission to introduce a plaintiff’s Facebook content if it appears to contradict statements made in court about the scope of their injuries. 

In a recent Pennsylvania case, Largent v. Reed, Jennifer Largent claimed that an automobile accident caused by the defendant, Jennifer Rosko, left her and her husband with “serious and permanent physical and mental injuries.”  Largent’s injuries were so extensive that she needed to walk with a cane, she told the Court.

All it took was a search of the plaintiff’s public profile to see Largent’s status updates about going to the gym and “enjoying life with her family.”  Judge Richard Walsh was satisfied that the defendants met relevancy standard needed to probe the rest of her page.  Noting Facebook’s motto – “Facebook helps you connect and share with the people in your life” – Walsh wrote:

[No court has ever] recognized a ‘general privacy privilege’ for Facebook information, and neither will we… only the uninitiated or foolish could believe that Facebook is an online lockbox of secrets.”

Ben Present, writing for the Legal Intelligencer, notes that this is the third Pennsylvania civil court to decide that a party’s Facebook page falls within the scope of discovery if posted information appears to contradict statements in discovery or testimony.  Let’s hope that plaintiffs and attorneys will begin to think twice before crowding our courts with bogus claims- that’s something honest Pennsylvanians can ‘like.’

Atlantic City gets slammed (again)

This time, it’s a man-made disaster: lawsuits.

The best odds in Atlantic City may be in the Courtroom - not its casinos.  The Press of Atlantic City reports that until very recently, the City paid out an average of $2.5 million annually in legal settlements.   

“…a shocking number of the plaintiffs suing Atlantic City are current or former employees of the resort. It verges on sport, a local tradition as popular as strolling the Boardwalk.” - Press of Atlantic City, 11/20/11

NJLRA has underscored the amount of money the Atlantic City school district must budget each year for lawsuits in previous posts.  But the Press of Atlantic City’s editorial in Sunday’s paper draws attention to the high price of slip-and-falls – for the city’s taxpayers. 

“Former firefighter Ricky Williams settled a suit with the city after claiming he had been the subject of racist threats by his supervisor. The city then fired the supervisor, Capt. Edmund Mawhinney, who subsequently sued for wrongful termination and got a six-figure settlement.

It would almost be comical - if these lawsuits and settlements weren't taking money out of taxpayers' pockets.

Why is the city sued so often? Hard to say. The resort has a long history of not carefully following its own policies and procedures - that has certainly led to plenty of lawsuits from disgruntled employees.

And, of course, plenty of plaintiffs sue the city simply because it appears to work.”

One thing is for certain: wasting precious taxpayer dollars on excessive litigation in an era of budget cuts and economic downturn is no laughing matter- except, perhaps, to the lawyers and plaintiffs they represent. 

Click here to read the editorial.  

Teen who made headlines for killing family and suing their estate gets another 15 minutes of fame

Dateline NBC will be airing an interview this evening with Justine Winters, the Montana teenager who made headlines last year for killing a pregnant mom and her 13-year-old son during a failed suicide attempt.  What Dateline does not mention in its teaser (as of now, at least) is that Winters later filed suit against the deceased mother’s estate for, among other things “lack of capacity to enjoy [her] life.”

Winters was driving at a speed of 86 miles per hour, not wearing a seatbelt, and texting her ex-boyfriend of her plans to crash her vehicle when she struck pregnant Erin Thompson and her son Caden. 

“Crossing the Line” airs at 9 p.m. EST. 

The iTunes Class Action Lawsuit You’ll Never Hear About

Unless you read about it here, of course. 

If you purchased a $0.99 iTunes giftcard, you could make a 30% return on your investment.

Apparently iTunes raised the price of most of their songs from $0.99 to $1.29 in April 2009. In legalese, this means that if you purchased a $0.99 giftcard before May 2010 (and no, I don’t understand the point of a $0.99 giftcard, either), you may be entitled to a large cash credit of $3.25.

Attorneys William M. Audet, Jonas P. Mann, Audet & Partners, LLP were kind enough to file this class action lawsuit on your behalf.  They are seeking a mere $2.1 million for their trouble.  The named plaintiffs in the suit, Johnson v. Apple Inc., will receive a $2,500 return on their $0.99 investment. 

While Apple maintains that it did nothing wrong, it seems that they’ve preferred to roll over and play dead rather than to risk an even greater financial loss: they are not contesting the $2,500 settlement for each named plaintiff, nor are they contesting the aforementioned attorneys’ fees.  The class’s own attorneys state:

Apple denies all allegations in the Lawsuit and in the Owens Action, and has asserted many defenses. Apple is entering into this settlement to avoid burdensome and costly litigation. The settlement is not an admission of wrongdoing or an indication that any law was violated.

And yes, if you were one of the folks who used a $0.99 iTunes giftcard during this period, they are representing you as well (unless you choose to opt out of the settlement – which you must do before December 29^th). 

Finally, no greediness permitted: the fine print clearly states that you are entitled to one $3.25 credit, no matter how many giftcards you redeemed.  Click here to enlarge and see for yourself:

 

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.

U.S. Chamber: Tort Reform Would Create 35,000 – 94,000 Jobs in New Jersey

Want to see New Jersey's unemployment rate drop by up to 2.3%?

Tort reform would bring a welcome infusion of cash and jobs into New Jersey’s struggling economy, according to a report issued by the U.S. Chamber of Commerce’s Institute for Legal Reform. 

New Jersey could save as much as $1.7 billion if comprehensive tort reform is enacted, according to the study, which measured New Jersey’s tort activity index.  A decrease in the state’s index would also yield between 35,000 and 94,000 new jobs, nudging the state’s unemployment rate down from 9.2% to 8.35% - 6.9%.    Litigation costs would drop by as much as 21.5%. 

“The correlation between tort reform and economic growth is evident,” said Marcus Rayner, executive director of the New Jersey Lawsuit Reform Alliance.  “This study demonstrates that the economic growth New Jersey so desperately needs can be spurred with common-sense tort reform.  

“$1.7 billion reinvested in our economy will help put people back to work and help New Jersey reclaim its economic footing.  Civil justice reform is a way to capture the money we waste on lawyer’s fees and litigation costs – without raising taxes or cutting essential services.” 

A state’s tort index is comprised of the number of tort claims filed annually, the frequency of major verdict awards, and the concentration of attorneys practicing in the state. 

A link to the study can be found on our website and via the U.S. Chamber.

Waning public resources could restrict access to our states’ courts, ABA President warns

Statehouses across the country are grappling with budget deficits and declining revenue.  We’ve all heard of successful programs meeting their demise due to an absence of funding.  Crippling budgetary trade-offs being made to our educational system, law enforcement, and the like have become so commonplace that they barely raise eyebrows in disbelief. 

What we’ve heard less about is the economic downturn’s impact on a key cornerstone in our democracy: justice. 

Layoffs, furloughs, and unfilled judicial vacancies eventually leave their mark on our judicial system.  The American Bar Association’s Task Force on Preservation of the Justice System found that civil cases have been the hardest hit by budget cuts.  Typical civil cases include everything from child custody and divorce to employee compensation. 

In the past few months, we’ve had a patron pursue a lawsuit against restaurant for injuries he sustained while driving his motorcycle drunk all the way up to the State Supreme Court; a lifeguard sue for age discrimination just before he retired; a patient who fell asleep while polishing a gun sue his doctor; and a woman who filed suit against ABC, claiming to be “severely damaged” after the station read the wrong winning lottery numbers. 

These are the types of cases pushing back court dates for issues that matter.  These are the types of cases being vetted when resources thin and demand for the court’s services grow.  And yes, these all happened here in New Jersey. 

“All of us must have and protect our right and our freedom to use courtrooms when we need to…That courtroom must be open to protect families…to validate and protect contracts for business...” said newly elected ABA President Wm. T. Robinson III at a symposium in Kentucky. 

Spreading ever-thinning public funds around may be a new reality for the foreseeable future.  But compromising access to justice is one sacrifice Americans shouldn’t have to make. 

No matter what the trial lawyers tell you, filing a frivolous lawsuit isn’t a victimless crime. 

Ocean City's Legal Woes: $250,000 and Counting

If you receive NJLRA’s weekly email, you may have read Douglas Bergen’s reports in the Ocean City Patch: Ocean City Pays Lifeguard $50,000 in Secret Lawsuit Settlement and Ocean City Pays More Than $200,000 to End Firefighter Lawsuit. 

The first of these settlements went to Michael Hamilton, 67-year-old lifeguard who failed the half-mile running portion of a requalification test.   Hamilton acknowledged that he was planning to retire anyway.  Nevertheless, he found an attorney to take his age-discrimination case against the City and share in the payout. 

The second, which was resolved on September 29^th (less than one month after Hamilton’s suit), was filed by former firefighter Mark McCulley, who dually served as the Department’s paymaster.  McCulley’s situation is more sympathetic, but a taxpayer might wonder if sympathy should come with a $220,000 price tag. 

Atlantic County Municipal Joint Insurance Fund insures Ocean City (which is part of Cape May County).  The City has half a dozen other lawsuits which it will need to address in the coming months, either by settlement or trial.  Douglas Bergen observes that Ocean City’s taxpayers “likely will bear the brunt of the settlement payments.”

When a municipality of fewer than 12,000 residents is willing to pay a quarter of a million dollars on two legal claims in order to avoid going to court – one of which was arguably ridiculous – it demonstrates just how high the stakes are for New Jersey’s 566 towns and cities. Civil justice reform isn’t a mere fancy of the private sector. 

Reasons to "Rep Your ZIP"

Have you ever been asked “Can I have your ZIP code?” by a perky cashier?

It’s not something I have an issue with- after all, they’re just numbers that I happen to share with 25,000 other people. 

Kerry Feder, a Verona, NJ resident, doesn’t see it that way.  She was asked by a store employee for her ZIP code when making a purchase at Williams-Sonoma in Upper Montclair earlier this year.  Instead of simply declining, Feder decided to file suit under New Jersey’s Truth in Consumer Contract, Warranty, and Notice Act (TCCWNA).

Fortunately, Feder v. Williams-Sonoma Stores Inc. was thrown out by a federal judge in Newark earlier this week.  Judge William Walls found that Williams-Sonoma’s practice does not violate CCWNA because the “Can I have your ZIP code” request is not made under the provision of a written contract. 

Unfortunately, however, a Morris County judge reached the opposite conclusion just a few weeks ago in a case against Harmon Stores.  The New Jersey Law Journal reports that Superior Court Judge Stephan Hansbury rejected the notion that a ZIP code is “too broad an identifier to be the subject of a privacy violation.”  (The same attorneys, by the way, represented the plaintiffs in both TCCWNA suits). 

The reason why there is a sudden rush to try class action TCCWNA cases in New Jersey (even though this practice has been around for so long it’s rather routine) is likely due to a California Supreme Court ruling against Williams-Sonoma in February, which found that collecting ZIP codes violates their state’s consumer statutes.  A plethora of similar cases have since been filed across California, and it seems that New Jersey is poised to be the second state in which the trial attorneys want to test the waters. 

The courts’ conflicting rulings suggest that New Jersey might be in for more TCCWNA class action suits.  Trial attorneys may see the dollar signs at the end of the road, but remember who pays the bill: consumers, who pay stores’ legal overhead in the form of higher prices; job-seekers, whose opportunities part-time and seasonal employment may be extinguished; and taxpayers, who are forced to subsidize these cases as they make their way through the court system. 

So, you can stand up and be counted, and give your ZIP code if asked – (and if it means better advertising and coupons for me, I’m for it) – or you can decline.  The choice should be yours – not the trial bar’s to make for you. 

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.

Van Drew introduces Senate version of legislation to reverse Voss v. Tranquilino

Late last month, Senator Jeff Van Drew (D-Cape May) introduced S-3028.  Like its companion bill, A-4228, this legislation would reverse the New Jersey Supreme Court’s decision in Voss  v. Tranquilino, which allowed a motorcyclist to sue the bar for injuries he sustained while driving drunk.  

The text isn’t available on the Legislature’s website as of today, but an earlier report in the Asbury Park Press outlines some of its parameters.

After Irene

NJLRA hopes that everyone is safe, powered, and dry following Hurricane Irene.  Kudos to all of those who helped others last weekend and during the ensuing floods. 

As we look toward Labor Day weekend, here are some outrageous lawsuits to help lighten the mood.  And, as always, beware of hot dogs:

Where's the beef? Hot dog battle goes to court

Northfield, Ill.-based Kraft Foods and Downers Grove, Ill.-based Sara Lee have been embroiled in the litigation since 2009 over advertising claims that consumers prefer Kraft’s Oscar Mayer Jumbo Beef Hot Dogs over Sara Lee’s Ball Park and that Oscar Mayer is "100 percent pure beef."

Kids lose bad mother lawsuit. Can't take mom to court over bad birthday cards.

For starters: she didn't send her son college care packages, or buy her daughter the homecoming dress she wanted. And their birthday cards? No cash or checks, just Hallmark sentiments.

Protester sues Capitol worker who popped balloon

The altercation allegedly happened July 25 during a daily sing-along, which was an ongoing protest of the state law curtailing collective bargaining rights for public workers.