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. 

Governor’s budget address

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

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

NJLRA Applauds Passage of Bill Requiring Study of NJ’s Looming Physician Shortage

The State Senate unanimously passed S-173, sponsored by Senator Robert Singer, which would require the Department of Health and Senior Services (DHSS) to conduct a study of New Jersey’s looming doctor shortage. 

“The New Jersey Council of Teaching Hospitals warned us in 2010 that New Jersey will be short nearly 3,000 doctors by 2022 if preventative measures are not taken,” said Marcus Rayner, executive director of the Alliance. “This is on top of the current 12% gap between physician supply and demand.

“It’s encouraging that the Legislature is taking this issue seriously and trying to avert a crisis situation.

“New Jersey’s doctors, especially those in high-risk specialties, carry some of the highest liability insurance premiums in the country.  It is becoming harder for the average physician to undertake the expense of practicing in New Jersey when so many other states have enacted cost-saving liability reform during the past several years.

If enacted, S-173 would convene a strategic planning summit of stakeholders.   The Department would be required to report findings and recommendations to the Governor and Legislature six months after enactment. 

The legislation was approved by a vote of 40 – 0.  It awaits action by the General Assembly. 

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

NJLRA will hold its annual Spring Membership Luncheon on

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

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

This year's keynote speaker TBA. 

 

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

New this week…

Assemblyman Herb Conaway, chair of the Assembly Health and Senior Services Committee, reintroduced legislation granting civil immunity for certain volunteer physicians, nonprofit clinics, and federally qualified health centers. 

A volunteer physician is defined in this bill, A-2178, as a physician who is retired but maintains licensed and is not receiving compensation for patient care. 

New Jersey is projected to be short by nearly 3,000 physicians by the end of the decade.  Medical specialties, including OB-GYNs, are expected to be among the hardest hit.  By protecting volunteer physicians, nonprofit clinics, and federally qualified health centers – acting in good faith – from liability, A-2178 would remove a significant disincentive to practice in areas in which there is high demand for such services. 

Assemblyman Conaway is also the sponsor of A-1806, which would accomplish similar objectives and reverse the 2010 New Jersey Supreme Court decision in Ryan v. Renny.  The decision gutted the state’s affidavit of merit statute. 

Prefiled Civil Justice Bills

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

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

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?

A-265 Receives Broad Support in the Assembly Judiciary Committee

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

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

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

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

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

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

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

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

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

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

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

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. 

**Legislative Updates**

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

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

The Lame Duck Season is upon us

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

NJLRA has five bills which it hopes will advance:

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

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

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

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

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

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

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.  

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

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

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

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

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

It’s Election Day.  Make it count. 

Survey: South Jersey Becoming a Lawsuit Mecca

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

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

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

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

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

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

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

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

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

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.

NJLRA will be at the Mercer County Chamber of Commerce Fall Business Expo today! Come by and say hello!

Sun National Bank Center

81 Hamilton Avenue

Trenton, NJ 08611

10:00am – 3:00pm

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. 

New Jersey Trade Secrets Act Advances

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

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

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

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

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

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

Photos from NJLRA's Fall Membership Luncheon

 

 

 

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

 

 

 

 

 

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

 

 

 

 

 

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

 

 

 

 

 

 

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

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

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

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

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

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

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

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

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

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

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

NJLRA's Annual Fall Membership meeting tomorrow

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

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

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.

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

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

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

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

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

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

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

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

Cryan will be keynote speaker at NJLRA Membership Luncheon

Assembly Majority Leader Joseph Cryan (D-Union) will be the keynote speaker at NJLRA’s annual Fall Membership Luncheon. 

The event will take place at the Trenton Country Club in West Trenton on Tuesday, September 13, at noon. 

Click here to RSVP now.  It’s free, but an RSVP is required.  We hope to see you there!

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. 

We’re officially encouraged by Governor Christie’s remarks at the Jersey Shore last week:

Christie on Perry: a laudable record on tort reform (Max Pizarro / Politicker NJ)

Tort reform was a key element in Texas’s economic recovery at a pace unheard of in most other states.

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.”

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. 

Patterson nomination confirmed by the Senate

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

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

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

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. 

NJ Supreme Court Update

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

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

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.