128 posts categorized "Trial Lawyers"

Thursday, March 06, 2014

Haddonfield Lawyer Admits to Doctoring Asbestos Suits in N.Y. to Increase Business

Jessica Beym | South Jersey Times

A former attorney in the Haddonfield office of a firm specializing in toxic tort litigation today admitted that he falsified defendants’ names in more than 100 asbestos suits filed in New York State courts in order to increase business and his standing in the firm, according to U.S. Attorney Paul J. Fishman.

Full Story.

Thursday, February 06, 2014

Lawyer’s Unconventional Super Bowl Ad Goes Viral

A Georgia attorney took plaintiffs attorney advertising to a whole new level with this Super Bowl ad.


Friday, January 04, 2013

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

It’s not exactly a refund. 

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

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

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

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

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

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

Friday, November 16, 2012

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

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

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

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

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

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

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

Tuesday, September 25, 2012

Our legal system in a nutshell

Pearls before Swine Stephan Pastis_9.23.12
Stephan Pastis cartoon in Sunday's Star-Ledger

Thursday, August 23, 2012

Baseball Lawsuit

A young man who was severely brain injured during a Little League game will receive a $14.5 million settlement.  Approximately $4.7 million will go to his attorneys. 

A baseball hit from a metal bat struck him in the chest at age 12.  Now 18, Steve Domalewski has difficulty speaking and can’t stand on his own. He’s lucky to be alive.  It was a costly freak accident that will affect him and his family forever. 

Metal bats are controversial because of their potential to cause serious injury, as one did to Steve Domalewski.  According to the Star-Ledger, the suit targeted Hillerich & Bradsby, makers of Louisville Sluggers; Little League, Inc., which approved use of the bat; and The Sports Authority, which sold the bat. 

Some comments from NJ.com:


why stop here? Sue the town for allowing the game to happen. Sue the state for allowing the town to allow the game to happen. Sue the United States for allowing the state to allow the town to have the game. Sue the makers of the baseball for making the baseball too hard. Sue the opposing batter and his family for hitting the ball. Sue the opposing kid's coach for putting the kid out there that hit the ball that hurt this young man. Sue the maker of this kid's glove for not catching this comebacker in time. Sue the umps who didn't stop this game proactively before the child got injured. Sue PAL Baseball for having this league in which the child got injured.


1 Hour Ago



You forgot the shirt maker for not making it out of a material that would deflect a ball...LOL 


Friday, July 27, 2012

Rayner on Aurora Massacre: Don’t blame Warner Brothers

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

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

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

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

Tuesday, July 24, 2012

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

Yes, that would be the killer. 

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

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

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

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

Thursday, July 19, 2012

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

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

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

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

Tuesday, June 05, 2012

Beauty is in the eye of the beholder - not the ADA attorney - right?

To the dismay of taxpayers and Americans with actual disabilities everywhere, unfortunately, it appears that the answer is “wrong.”

A University of Texas professor mused in an op-ed in the New York Times last year that affirmative-action like programs for the “ugly” should be in order, giving self-described “ugly” Americans grounds for a lawsuit under the Americans with Disabilities Act (ADA). 

Lacking a high school diploma, the Department of Justice warned, may also count as a disability under the expanded definition of the ADA, should a potential employer reject an applicant because of it.

The Washington Times points out that the expanded definition of “disability” is consistent with a 2008 Congressional amendment to the Act, following concerns that courts were interpreting the definition too narrowly.  The tide seems to have been reversed and then some, with ADA claims rising by 90 percent in the past five years.  “The flood includes more frivolous claims than ever,” writes Luke Rosiak for the Washington Times.  “Despite the broadened law, the EEOC [Equal Employment Opportunity Commission] saw the highest percentage yet deemed ‘no reasonable cause’ last year.” 

Alas, even with the expanded definition on the plaintiffs’ side, ADA attorneys are still finding ways to te$t the bounds of our taxpayer-funded court system. 

Monday, May 14, 2012

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

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

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

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

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

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

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

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

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

Tuesday, April 24, 2012

Keep it civil or keep it on your side of the Hudson

Political discourse reached another low this week, as a New York-based group of trial lawyers all but accused NJLRA and its members of being responsible for the tragic death of Trayvon Martin (nevermind that at least one NJLRA’er immediately donned a hoodie and signed petitions calling for his killer’s arrest). 

It’s not unusual for large corporations to join a plethora of advocacy organizations and associations, but of course “Call-Me if-You’ve-Been-Hurt-by-Anything” didn’t let this truth get in the way.  In their mind, somehow this equates to an endorsement of ALEC’s agenda. 

And with a fair amount of gender-baiting, they single out three pharmaceutical companies, all with a strong New Jersey presence, and all of which have produced life-enhancing drugs for men and women for generations.  Their argument (or lack thereof) seems to hinge on the quantity of reproductive drugs and devices (too many versus too few) instead of accessibility or affordability, and ignores the fact that the more resources these companies spend fighting frivolous legal claims, the fewer resources are available for innovation and the product development so many people depend upon.

If you want to have an honest conversation about legal reform and its importance to New Jersey’s economy and public health, let’s have one.  But seriously, leave Trayvon Martin and his grieving family alone. 

Monday, April 23, 2012

48 hours after a fender-bender...

It was a fender-bender...

Friday, April 20, 2012

Insanity, behold the courts!

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

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

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

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

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

Monday, April 16, 2012

Cuts to the courts make their way into our homes

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

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

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

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

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

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

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

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

Monday, March 05, 2012

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

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

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

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

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

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

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

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

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

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

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

Thursday, March 01, 2012

Touting tort reform before business

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


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

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

The state's most prominent lawsuit reform advocate may be Marcus Rayner, president of the New Jersey Civil Justice Institute, which launched in 2007 to bolster lobbying on tort reform and related issues.

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

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

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

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

Read full story.

Monday, February 27, 2012

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


Advocating for traffic changes might be more helpful 

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

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

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

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

Thursday, February 23, 2012

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. 

Monday, November 28, 2011

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.’

Monday, November 21, 2011

Atlantic City gets slammed (again)

Casino chips 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.  

Thursday, November 03, 2011

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 29th). 

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:

ITunes Class0001


Thursday, October 27, 2011

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.

Monday, October 17, 2011

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. 

Wednesday, October 12, 2011

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 29th (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. 

Thursday, September 29, 2011

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. 

Wednesday, August 31, 2011

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. 

Wednesday, August 24, 2011

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. 

Thursday, August 18, 2011

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

Tuesday, August 02, 2011

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.”

Monday, July 18, 2011

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. 

Wednesday, July 06, 2011

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.


Wednesday, June 22, 2011

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. 

Thursday, June 16, 2011

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!

Monday, June 13, 2011

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.)

Thursday, May 19, 2011

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. 

Thursday, May 05, 2011

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. 

Tuesday, April 26, 2011

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.’ 

Tuesday, April 05, 2011

"Old-Fashioned Justice," meet the trial lawyers

With arguments in the Wal-mart sex-discrimination case before the U.S. Supreme court, Liptak examines whether the class is too big and too diverse to produce a fair outcome

Excerpt: WASHINGTON — Can a class-action lawsuit be too sprawling to deliver old-fashioned justice?

Justice Antonin Scalia seems to think so, judging by his comments on Tuesday during the Supreme Court argument in the biggest employment discrimination class action in history.

“We must have a pretty bad judicial system,” he said, reflecting on what he had just heard from a lawyer for hundreds of thousands of women suing Wal-Mart over what they say was unfair treatment on pay and promotions. The lawyer had said that a trial judge could rely on statistical formulas rather than testimony and personnel records to decide how much money the company would have to pay each plaintiff if it lost.

“Is this really due process?” Justice Scalia asked.

In other words, does the impersonality of the suit threaten its ability to be fair to each plaintiff and to Wal-Mart, the country’s biggest private employer?

Read entire article.

Tuesday, March 29, 2011

Read NJLRA’s op-ed in the Home News Tribune & Courier News

Lawsuit abuse a continuing drag on NJ business

By Marcus Rayner | March 29, 2011

“From a college student suing a Chinese restaurant for soup she spilled on herself (Somerset County), to a drunken motorcyclist who drives into a parked car and sues a restaurant (Ocean County), lawsuit abuse has an economic impact on businesses in every corner of the state. Every dollar spent fighting nonsense lawsuits is a dollar not spent on innovation or job creation, and it doesn't need to be this way.”

 Several hundred miles from here, Illinois business owners are learning about a place with an abundant supply of workplace talent and a high-quality lifestyle sure to make any entrepreneur envious. Weary from crippling tax hikes, a labor shortage and a shrinking consumer base, Illinois business owners can only dream about this land of milk and honey: New Jersey.

"Well-educated, diverse talent pool," reads the ad, placed by New Jersey Gov. Chris Christie. Want to start a business? "Innovative financing, incentive and assistance programs. Exceptional quality of life."

The catch? Here in New Jersey, businesses are vulnerable to lawsuit abuse. Everything the ad says about New Jersey is true. Christie's efforts to improve the business climate in New Jersey, combined with our state's existing assets make New Jersey fertile grounds for entrepreneurship. His outreach to the national business community is both constructive and sorely needed as we seek to reclaim our economic footing here in New Jersey. And business retention as well as recruitment will be critical to our economic growth over the next decade, a point that leaders in both political parties have made.

Click here to read entire piece.

Thursday, March 24, 2011

Ocean County Dram Shop case is heard by N.J. Supreme Court

You may recall LRW’s post last year about Voss v. Tranquilino, A-110-09 (“Drive drunk, hurt yourself, and blame someone else,” 4/29/10). 

Frederick Voss, who rode his motorcycle into a car driven by Kristoffe Tranquilino after leaving Tiffany’s Restaurant in Toms River drunk, sued both parties for the injuries he caused himself.  Claims against Tranquilino were dismissed, but the claims against Tiffany’s were allowed to proceed. 

Arguments in the latter case were heard by the New Jersey Supreme Court last week. 

I don’t need to reiterate the perils of driving while intoxicated or failing to accept responsibility for one’s actions, or the ridiculousness of suing for injuries you caused yourself.  Ruling in Voss’s favor would not only send a bad message, but would ultimately shift responsibility to the establishment and not the individual.  It would also likely result in higher insurance prices for the restaurant industry, which usually translates into higher prices as well. 

Voss v. Tranquilino’s path to the NJ Supreme Court

 Before the Court:  Drunken drivers cannot sue an insurance company for damages; however, can drunken drivers injured in accidents file a claim against the establishment which served them liquor?

1987 – The New Jersey Licensed Alcoholic Beverage Fair Liability Act, N.J.S.A 2A:22A-1 to -7 is enacted (Also known as the “Dram Shop Act”)

The Act prohibits liquor establishments from serving patrons they know, or should have known, are intoxicated.

1997 – Insurance law amendments enacted, N.J.S.A. 39:6A-4.5(b)

A driver convicted of DWI in connection with an accident “shall have no cause of action for his or her injuries.”

2002 – Camp v. Lummino, 352 N.J. Super. 414 (App. Div. 2002)

Appellate panel decided that immunity did not apply in a host-liability case, allowing a claim by an underage drunk driver to proceed with a claim against the homeowner of the place where he had been drinking.

2004 – Caviglia v. Royal Tours of America, 178 N.J. 460 (2004)

Court upholds N.J.S.A. 39:6A-4.5(a), which bars any “cause of action for recovery of economic or nonecomonic loss” to the driver of an uninsured vehicle who is injured in an accident.

2009 – Voss, intoxicated, causes an accident with Tranquilino, a motorist

 Voss is injured.

2010 – Voss files suit against both Tranquilino and Tiffany’s, where he had been served alcohol prior to the incident

Ocean County Superior Court Judge John Peterson dismisses claim against Tranquilino, citing the 1997 amendments.  The claim against Tiffany’s is allowed to proceed because they did not repeal the Dram Shop Act.  Tiffany’s appeals.

2011 – Voss v. Tranquilino reaches the NJ Supreme Court

The restaurant’s attorney argues that the 2004 case should guide the Court’s decision, and the Legislature revoked the ability of a drunk driver to sue the establishment that served him with the 1997 amendments. 

Monday, March 21, 2011

Honey, did you hear that?

Next time you hear a noise in the middle of the night, you might want to think twice before asking your partner to investigate. 

That’s because a New Jersey Appellate Court recently ruled that asking for help in such a situation confers a “duty of care,” and if your friend/neighbor/spouse/random passerby is injured or killed while checking on that noise, the responsible party is… you. 

Yes, you.

This decision stems from a 2003 incident in Irvington, New Jersey.  Jean Robert Vertus was wrapping up with a client in his financial services office in the city, when the pair heard something in the building.  Vertus exited through a side door and went to a the home of a nearby friend, Cosme Novaly.  The client, Naitil Des ir, did not. 

In an apparent state of panic, Vertus told Novaly that “there was “something going on” in his building. 

Instead of calling 9-1-1, Novaly decided to see what was going on at the building. 

Minutes later, Vertus heard gunfire.  He ran back to the building, where he found Novaly on the sidewalk bleeding to death.  Des ir was also shot and killed. 

Novaly’s estate later sued Vertus.  They alleged that Vertus had a “reasonable duty of care” because he asked Novaly for “help in circumstances he knew or should have known would expose Novaly to risk of injury.”  Essex County Superior Court Judge Michael Casale dismissed the family’s lawsuit on summary judgment, and they appealed. 

The lawyer for the Novaly family said that Vertus should have taken steps to ensure Novaly’s safety.  The appellate panel said that Vertus “knew or should have known” that Novaly could be exposed to danger, and had a duty to warn him. 

So, before asking someone to walk you to your car, see who’s outside, or find out the source of a noise, remember to shout “Please note that you might be in danger if you come to my aid.  You have been warned,” in order to shield yourself from liability.    

“Help, I hear something,” just doesn’t cut it. 

 Case: Estate of Novaly v. Vertus.

Tuesday, March 15, 2011

Must-read post by Robert Elliot Chilson via Trenton United - “Got Lawsuits?”

Must-read post by Robert Elliot Chilson via Trenton United - “Got Lawsuits?” http://trenton-united.blogspot.com/2011/03/review-of-city-council-agenda-for.html

Trenton United blogger Robert Elliot Chilson did his homework in advance of the City’s council meeting tonight – nearly two and a half pages of the city’s 8 page agenda are tort claims and civil actions!  You can view them the City’s website, under the heading “Communications & Petitions”:  http://www.trentonnj.org/uppages/3-15-2011%20DOCKET%20CITI1.doc

Chilson observes the following:

  • The City subcontracts a significant amount of its legal work to private law firms, which drives taxpayers’ total litigation costs even higher.
  • Nine of the actions are people suing the City for “Property Damage,” which he suspects are damage to cars due to potholes.  Wouldn’t this money be better spent on fixing the problem instead of incurring a bottomless financial aftermath of lawsuits?

It would be interesting to see where Trenton’s municipal insurance premiums stand in comparison to other municipalities in the state.  As we noted in an earlier post, the cost of liability claims per 100 residents rose 104 percent statewide between 2000 and 2010, according to the Municipal Excess Liability Joint Insurance Fund

Monday, March 14, 2011

Trial bar fighting efforts to restrict lawsuit lending

Can you imagine agreeing to a loan on which you would have to pay over 36 percent in interest?

Of course not, because it would be absurd unless you were really desperate. 

Many states cap the interest rate a lender can charge its customers.  In Indiana, for example, it’s capped at 36 percent – still a generous deal for the lender, but protects the borrower from being taken advantage of, and having to pay back much more than their loan is worth. 

One group says a 36 percent interest rate is not high enough – and that they should be exempt from state lending laws.  Meet the personal injury lawyers. 

Some companies are in the business of advancing money to would-be plaintiffs involved in personal injury lawsuits.  According to a New York Times report by Binyamin Appelbaum, there are about a dozen such companies nationwide, and several smaller companies.  They collectively lend plaintiffs $100 million per year in increments of a few thousand dollars to cover their housing and medical expenses.  Plaintiffs pay back their loans plus interest after lawyers win their case.  If the lawyers lose, they owe nothing.  The message seems to be that filing a frivolous lawsuit can be a pretty good investment

Personal injury lawyers say that’s why they should be excluded from states’ loan caps: these aren’t loans – they’re investments.  And they’re taking their show on the road to Legislatures across the country.  Oasis Legal Finance in Illinois recently proposed exempting lawsuit lending companies from Indiana’s 36 percent cap on interest.  Senator Randy Head said that Oasis’s advocacy first brought his attention to the issue, which resulted in his introduction of Senate bill 97.  It included a modest restraint on lenders by preventing them from providing anything beyond money to plaintiffs, as well as assertions from the industry that they were attempting to self-regulate in the name of consumer protection.  It was that portion that helped to carefully pitch it to the state Senate as a pseudo-reform bill and ultimately led to that chamber’s passage of it last month, with a vote of 36 – 14. 

“Most of what they proposed is contained in the bill,” the sponsor acknowledged to the New York Times. 

While “lawsuit lending” might help one who is truly besieged with medical bills and unable to work due to someone’s negligence as their case is being sorted out, it’s hard to deny that it also gives plaintiffs and their attorneys a hefty incentive to pursue the largest financial rewards possible. 

The personal injury lawyers’ trade group is trying to carve themselves out of regulation through the legislative process in Alabama, Kentucky, and Maryland as well, and may be focusing on Arkansas and Nevada in the near future.  The watchful eye of the chambers of commerce has kept efforts at bay in Kentucky, which have successfully blocked similar legislation from passing the state Senate.  And since all of these bills were introduced in February 2011 or later, we may only have seen the tip of the iceberg in trial lawyer lobbying. 

Wednesday, March 02, 2011

New York’s Medicaid Redesign Task Force recommends a cap on noneconomic damages; the trial lawyers hate it

Nearly every state in the country is grappling with rising Medicaid costs.  New York, however, bears the distinction of having the highest Medicaid costs in the nation, and also leads among avoidable hospital use and costs.  On a per capita basis, it runs about twice the cost of the national average. 

To help his “functionally  bankrupt” state cleanse its Medicaid program of inefficiencies and waste, Governor Andrew Cuomo convened a Medicaid Redesign task force to “redesign and restructure” the program. 

The task force consisted of 30 stakeholders – doctors, hospitals, nursing homes, the Greater New York Hospital Association, and other patient care providers you would expect.  The objective, according to the Syracuse Post-Standard, is to move nearly all of the state’s 4.7 million Medicaid recipients to managed care within the next three years in order to stop the use of hospital emergency rooms for preventative and routine care.  Its expected savings could exceed $1.1 billion.  The task force issued 79 recommendations last Thursday for the approval of the Governor and Legislature.  And they include a $250,000 cap on noneconomic damages – which would save hospitals hundreds of millions of dollars in insurance premiums alone. 

Now enter the trial lawyers.  They’re throwing a fit over aforementioned recommendation.  Not because it saves taxpayers’ money, but because their interests weren’t represented on the task force.  New York Times blogger Nicholas Confessore has noted their frustrations in detail. 

New York State faces a $10 billion deficit, and Governor Cuomo has said he needs to cut Medicaid spending by $2.85 billion and limit it to 4 percent annual increases thereafter if he has any chance of plugging it.  Josh Vlasto, a spokesperson for Governor Cuomo, called the interest group opposing this recommendation a “mouthpiece for the trial lawyers.” 

I suppose the task force could have recommended cuts in patient spending instead of a cap on litigation and insurance spending.  As a patient, however, wouldn’t you rather have a $250,000 cap on noneconomic damages instead of a reduction in care?  It seems nonsensical and transparent for trial lawyers to insist that the only way Medicaid recipients can receive more efficient care is to make sure the lawyers’ thirst for uncapped noneconomic medical damages remains quenched.   

Friday, February 25, 2011

Caught on Tape: “Some people fake slip and falls for a living.”

Fraudulent slip-and-fall duos have become so pervasive in the last three years that many stores are investing in hidden cameras to catch the perpetrators in the act. 

ABC’s Elizabeth Leamy reports on the spike in suspicious slip and fall claims.  Some of what the camera catches is amazing – from a man who buys a hot dog, then places it in a store isle so his accomplice can intentionally slip, to a woman who fixes her hair before lying down in artificial distress. 

The National Insurance Crime Bureau says that “suspicious claims” are up 24 percent from 2008. 

Leem notes this number could be even higher, because many businesses quietly pay off these claims to make them go away.  Even when fake falls are caught on tape, “fake slip and falls still have the effect of driving up prices for all of us,” she says. 

Jim Quiggle of the Coalition Against Insurance Fraud says that indeed, “some people fake slip and falls for a living.” 

 You can watch the report here, via ABC’s website

Tuesday, February 22, 2011

Governor: NJ will double R&D tax credit

Governor Chris Christie’s budget address included several tax cut proposals, the first of which would be significant to one of New Jersey’s signature industries: pharmaceuticals. 

“We will double our State Research and Development Tax credit to encourage High Tech and Bio-Tech entrepreneurs to create their next great discovery, and the jobs that go with it, right here in New Jersey,” he said. 

New Jersey’s pharmaceutical companies have been shedding jobs over the past few years, according to the Healthcare Institute of New Jersey. Doubling New Jersey’s Research and Development Tax credit, as encouraging as it is, address our hemorrhaging of pharmaceutical jobs in part.  Imagine how much further this proposal would reach if coupled with meaningful tort reform legislation to address the assault on the industry by the trial bar

A-3333, which would reform New Jersey’s Consumer Fraud Act, comes to mind.  After all, why should New Jersey settle for “Hellhole” status when it has the potential to host High Tech and Bio-Tech entrepreneurship? 

The prepared text of the Governor’s budget address is available here

Wednesday, February 16, 2011

Merck wins round one in Fosamax case

New Jersey-based drug maker Merck achieved the improbable: it won a case in New Jersey’s hottest “Judicial Hellhole.”

The Star-Ledger reports that 9 out of the 10 jurors in an Atlantic County Superior Courtroom didn’t believe Merck’s osteoporosis drug Fosamax was the source of a Pennsylvania woman’s jawbone condition, called osteonecrosis.   Merck’s lawyers argued that the plaintiff’s extensive dental problems and a steroid she used may have been to blame. 

Nearly 300 lawsuits are involved in the mass tort case.  It was an important first victory, even if it is one the plaintiff’s attorneys will almost certainly appeal. 

Atlantic County, New Jersey, was named by the American Tort Reform Association as one of the nation’s Judicial Hellholes in 2009.   

Monday, February 14, 2011

Which state is the most litigious in the nation? New Jersey, of course…

NJLRA’s former chair, Taysen Van Itallie, underscores just how serious New Jersey’s “Sue Me” image has gotten in the New Jersey Law Journal.

New Jersey had 10,579 new civil cases in 2008 – more than twice as many filed in Illinois, a state with a larger population. 

It begs the question: how exactly can we make our state more attractive to businesses without addressing the tort situation? 

“Businesses of all sizes are sensitive to a state’s lawsuit climate.  Let’s be sure we have a plan to improve ours,” writes Van Itallie. 

You can read his entire op-ed in the New Jersey Law Journal here

Wednesday, February 02, 2011

The Daily Show’s Lewis Black on the Taco Bell Lawsuit

“It’s not like you eat it when you’re sober…” 

Lewis Black’s satirical segment, “Back in Black,” takes on the class-action lawsuit filed against Taco Bell

The Daily Show With Jon Stewart Mon - Thurs 11p / 10c
Back in Black - Meat Edition
Daily Show Full Episodes Political Humor & Satire Blog</a> The Daily Show on Facebook


The Alabama law firm representing the plaintiffs says that Taco Bell’s meat is only 36 percent beef – short of the 40 percent beef requirement set by the USDA.  Taco Bell counters that it’s actually 88 percent beef.  Much thanks to Lewis Black & the Daily Show for casting light on this lawsuit!