Lawsuit Reform Watch

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.

Must Read NYT Op-Ed: Ugly? You May Have a Case

“… why not offer legal protections to the ugly, as we do with racial, ethnic and religious minorities, women and handicapped individuals?”

Extending the Americans with Disabilities Act to protect the “ugly?”  Seriously?!

Most of us are taught that beauty is in the eye of the beholder, not the ADA attorney.

Nevertheless, Professor Daniel S. Hamermesh at the University of Texas, Austin, argues that even affirmative-action programs for the ugly should be in order.  Yes, he’s actually advocating to put ugliness-based lawsuits on the same platform of racial, ethnic, gender, and disability-based employment discrimination.

Oddly enough, he seems to acknowledge that money is the motivating – not supporting – factor in bringing potential lawsuits:

“There are other possible objections. ‘Ugliness’ is not a personal trait that many people choose to embrace; those whom we classify as protected might not be willing to admit that they are ugly.  But with the chance of obtaining extra pay and promotions amounting to $230,000 in lost lifetime earnings, there’s a large enough incentive to do so. Bringing anti-discrimination lawsuits is also costly, and few potential plaintiffs could afford to do so.  But many attorneys would be willing to organize classes of plaintiffs to overcome these costs, just as they do now in racial-discrimination and other lawsuits.”

Gee, there’s an idea. Let’s refrain from bathing and personal care and sue our way into cold hard cash.  Exactly what our business community (and kempt colleagues) need to thrive during an economic downturn. 

Anti-bullying law puts taxpayers at risk

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. 

Beach Reading

If you’re a small business entrepreneur and manage to sneak some time away this summer (or just a concerned citizen wanting to learn more about how your local government works), you might want to pick up a copy of Assemblywoman Amy Handlin’s latest book, Government Grief: How to Help Your Small Business Survive Mindless Regulation, Political Corruption, and Red Tape. 

Handlin, who represents the 13^th Legislative District, offers practical advice for engaging with local government officials.  There are also extensive glossaries designed to make navigating the multitude of government bureaucracies easier, as well interesting commentary on what Handlin calls the “corruption tax.” 

Perhaps best of all, the book is straightforward, down-to-earth, and actually helpful; it’s not filled with the generalities and hyperboles we’ve come to associate with elected officials.  She stresses that the advice offered in her book (which is rooted in her extensive backgrounds in marketing and public service) is applicable to every state and local jurisdiction. 

You can check it out here.  Happy reading - hope you enjoy it as much as we did!

In case you were wondering…

The results* of our very unscientific Facebook poll are clear:

 

 *as of 8/9/2011, 1:04 p.m. EST

Yet, we still need legislation to deliver this message to the New Jersey Supreme Court…

In case you missed it: Read NJLRA’s letter-to-the-editor in the Hunterdon County Democrat

A jury recently awarded a $2.5 million judgment against Warren Township, population 16,000, over its handling of a report the Council received about an intoxicated municipal judge on the bench. With a total budget of $16 million, this is a surcharge residents will feel for years to come if it is not overturned on appeal, wrote Marcus Rayner, NJLRA’s executive director.

Click here to read the full letter and click here to read about the lawsuit costing Warren Township taxpayers one-eighth of their entire municipal budget. 

He’s back! Richard Kreimer, the NJ man who made $400k suing people

Richard Kreimer has discovered something the trial bar has known for quite some time: there is good money in suing people.

Excerpt from Alexi Friedman’s piece in the Star-Ledger:

“Kreimer, who is homeless, has made a name for himself over the years by suing NJ Transit, the Morristown Library, CVS pharmacy, a coffeehouse, a Chinese restaurant and various municipalities and mayors, all alleging First Amendment and civil rights violations. In most instances, he has been barred from or thrown out of a location.

Kreimer believes he is a target because he is homeless.

The suits — there have been close to 20 — have won the Morristown native equal parts scorn and support, a good bit of media coverage and hundreds of thousands of dollars in settlements.

"I’m probably the most famous person in New Jersey," he boasted in between forkfuls of rice and sips from a soda from the train station, where he spends much of his time.”

Strassel: The Senate’s Lawsuit Factory

In case you missed it, Kimberley A.  Strassel details trial lawyers’ attempts to use a controversial case to block mandatory arbitration clauses (The Senate’s Lawsuit Factory, The Wall Street Journal, 7/22/11).  Some how-to highlights:

1) Identify a law or regulation that prevents trial lawyers from cashing in.

2) Identify a "victim" of this law or regulation.

3) Get congressional allies to turn said victim into a cause célèbre.

4) Use ensuing moral outrage to get the law or regulation changed.

5) Buy a yacht.

Is suing the bar a new drunk driving trend?

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

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

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

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

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

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

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

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

Read more.

Have you voted yet?

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

Trentonian: Wrongful death lawsuit filed against popular area Irish pub

Usually the wrongful death suit is filed against the drunk driver.  This time, it’s being filed on behalf of him. 

Wrongful death lawsuit filed against popular area Irish pub

Read Artemis Coughlan’s story in the Trentonian.

TRENTON - Muscle car enthusiast John Robert Gately spent the night of October 16, 2009 drinking at the popular Killarney’s Publick House Irish Pub in Hamilton, paid his bill and drove away.

Minutes later he slammed his car into a tree and utility pole on Youngs Road and died.

His parents, Kathleen Cousminer and father John M. Gately blame the people who served him the alcohol at the pub for not paying attention to his intoxicated condition that lead to the accident in a lawsuit filed in Mercer County Court.

Link to full story.  

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

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

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

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

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

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

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

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

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

Session Recap

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

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

 

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

Legislation is necessary to limit suits in New Jersey

By Marcus Rayner

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

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

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

Link. 

APP: Legislation Would Limit Suits by Drunken Drivers

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

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

Legislation to Overturn Voss v. Tranquilino Decision Introduced

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Economist also pointed out the following:

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

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

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

A-4135 Introduced in the Assembly

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. 

The Big Apple Needs Big Reform

A lot of tort reform –inspiring activity has been taking place across in New York these days. 

First, there is judge-directed negotiation, an approach to resolving medical malpractice cases without the years of traditional legal overhead.  As part of President Obama’s pledge to address skyrocketing medical malpractice litigation costs, New York City received a federal grant for a type of mediation between a trained judge and attorneys for each side.  Its intent is to get judges involved earlier and actively encourage settlements, which prompts quicker resolution and fewer years in an expensive limbo for the parties involved.  There are no appeals, and the settlements are often a shadow of what a plaintiff might receive in court.  A positive consequence is that lawyers may become more hesitant to pursue a case that is marginal.  A negative consequence, however, is that doctors may still feel pressured to settle, even when they haven’t been negligent. 

Next, the New York State Assembly passed A-694, a complex piece of legislation supported by trial lawyers.  It seeks to overturn the New York Court of Appeals’ decision in the case of Arons v. Jutkowitz. If enacted, opponents say, the cost of medical malpractice insurance will likely increase for New York’s physicians.   More information about the legislation can be found here. 

The last is sobering.  New York City doled out an astounding $521 million in personal injury and property damage lawsuits in 2010.  It’s sort of like a $57.88 lawsuit insurance policy for each of the city’s 9 million residents.  And this figure is seven percent lower than it was in 2009!

Scam exposed: plaintiff hired a lawyer before buying product!

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

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

 

Excerpt, pages 3 – 4 of the decision:

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

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

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

NJLRA live: Rayner on FOX News Channel

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

Public weigh-in on Voss v. Tranquilino

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

speedkillsu

4:43 AM on June 2, 2011

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

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tizziec@optonline.net

6:49 AM on June 2, 2011

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

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ort63

6:56 AM on June 2, 2011

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

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16317

7:02 AM on June 2, 2011

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

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Overtaxed08527

7:04 AM on June 2, 2011

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

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sancam

7:15 AM on June 2, 2011

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

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077734

7:15 AM on June 2, 2011

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

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emtwraith

7:09 AM on June 2, 2011

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

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

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

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

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

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

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

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

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

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

Op-Ed: The High (and Hidden) Costs of Lawsuits against Local Governments

It’s time to recognize the role that municipal lawsuits play in the crushing burden of New Jersey’s property tax.

In New Jersey, the arrival of spring doesn’t just mean warmer weather and the smell of fresh flowers, it’s also the time of year when our state’s 566 municipalities draw up their budgets.  And most of us, busy with daily life, fail to take note of our own council’s agenda – until we see the increase on our next property tax bill. 

Read NJLRA’s op-ed in NJ Spotlight. 

Tort reform and healthcare costs....

The cost of healthcare is a hot topic in New Jersey.  States that enacted non-economic malpractice caps saw a 3 – 4 percent decrease in healthcare costs over the last few years, according to the Agency for Healthcare Quality and Research. 

Why does tort reform reduce the cost of healthcare?  For starters, it lessens the needs for defensive medicine.  Unnecessary tests can be both costly and time-consuming, and the patient isn’t any healthier for it. 

With a looming physician shortage, perhaps it’s time for New Jersey to take a look at these cost-cutting measures.  A poll conducted by the American College of Emergency Physicians (ACEP) recently found that more than half of emergency room doctors cite their fear of being sued as the primary reason for ordering unnecessary tests in the ER.  Emergency room doctors may be particularly vulnerable to lawsuits, because patients are generally sicker and they often don’t have access to patients’ medical histories. 

Post-reform, Texas emergency rooms have undergone the second biggest improvement in wait times in the nation.  And that’s not it for the Lone Star State.  Texans -who faced a physician shortage not unlike the one New Jersey will likely face- have added at least one emergency room physician in 33 rural counties, 24 of which previously had none. 

That’s not just stopping the hemorrhaging: it’s a reversal.  One that New Jersey patients could benefit from, too – expanding access to care is a welcome consequence of enacting tort reform. 

The Next Public Health Crisis? Obese patients too high-risk

Obese women aren’t always treated kindly by society.  And now, some OB-GYNs in Florida say they simply can’t risk treating them – at all. 

"People don't realize the risk we're taking by taking care of these patients," said Dr. Albert Triana.  "There's more risk of something going wrong and more risk of getting sued."

The Sun-Sentinel polled 105 OB-GYNs in South Florida.  Fifteen of them said they refuse otherwise healthy new patients over 200 pounds. 

Doctors can decline patients for any reason.  But when fourteen percent of OB-GYNs won’t see obese patients because the financial risk is too high, we could be seeing the dawn of a disturbing public health trend. 

According to the Los Angeles Times, which also reported on the study, South Florida OB-GYNs have “long complained of high numbers of lawsuits after difficult births and high rates for medical malpractice insurance.”  Obese women who were pregnant were somewhat routinely referred to specialists, but turning down obese women who are not pregnant is new.  According to doctors interviewed, obese patients present an increased risk of complications – and are increasingly seen as potential lawsuit. 

We have enough barriers between women and gynecological and prenatal care in the United States.  It would be great if the trial lawyers, with their self-proclaimed concern for the average person, would stop adding to these barriers and support medical malpractice reform instead. 

NJ is one of the “Worst States for Business”

Chief Executive Magazine released its 2011 survey of the worst states for business.  Unsurprisingly, Texas is ranked best, and New Jersey, New York, Illinois and California are the bottom four.  New Jersey held steady at #47 for the third consecutive year.

It will also come as no surprise that many states in the top 10 continue to address civil justice reform issues (beneficial reforms are under legislative consideration in 5 of the top 10 states).

You can read Chief Executive Magazine’s full article and methodology here, or click on the map below for an interactive map of the best and worst states for business. 

South Jersey Towns Sing a Familiar Tune

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. 

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

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

Case in point:

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

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

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

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

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

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

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

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

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

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