259 posts categorized "Legal Reform"

Tuesday, June 21, 2011

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. 

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.)

Friday, June 03, 2011

Public weigh-in on Voss v. Tranquilino

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

speedkillsu

4:43 AM on June 2, 2011

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

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tizziec@optonline.net

6:49 AM on June 2, 2011

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

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ort63

6:56 AM on June 2, 2011

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

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16317

7:02 AM on June 2, 2011

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

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Overtaxed08527

7:04 AM on June 2, 2011

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

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sancam

7:15 AM on June 2, 2011

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

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077734

7:15 AM on June 2, 2011

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

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emtwraith

7:09 AM on June 2, 2011

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

Wednesday, June 01, 2011

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

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

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

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

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

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

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

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

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

Thursday, May 26, 2011

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

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

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

Read NJLRA’s op-ed in NJ Spotlight

Monday, May 23, 2011

Tort reform and healthcare costs....

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

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

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

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

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

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. 

Monday, May 16, 2011

Did you know…

… more than 55,000 New Jersey residents are employed by one of our 24 pharmaceutical companies?  Another 75,000 New Jerseyans are employed indirectly through service contracts.  Collectively known as the nation’s “Medicine Chest,” New Jersey’s pharmaceutical companies are among the state’s most philanthropic entities.  In 2010, they added a total of $29.5 billion to the economy through enterprise and charitable giving. 

Friday, May 13, 2011

NJ is one of the “Worst States for Business”

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

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

You can read Chief Executive Magazine’s full article and methodology here, or click on the map below for an interactive map of the best and worst states for businessBest and Worst States 2011


Wednesday, May 11, 2011

Legislative Update

The Assembly held two bills opposed by NJLRA, NJBIA, and other business groups originally scheduled for consideration on Monday. 

A-3433 would prohibit consumer contracts from requiring that arbitration take place outside of New Jersey.  NJLRA maintains that arbitration offers a meaningful and effective forum for resolving disputes without litigation. 

The Assembly was also scheduled to consider A-3434, which would require a review of a consumer contract for unconscionability and set the standard for review.  The Assembly adopted amendments to specify that the bill would not apply to arbitrations conducted or administered by a self-regulatory organization; however, the bill was held.  It may also be in conflict with the U.S. Supreme Court’s April 27, 2011 decision in AT&T vs. Concepcion

Assemblyman Dominick DiCicco praised the decision to hold “bad business bills” A-3433 and A-3434, which he called the “first step in getting [the Legislature’s] priorities straight.”

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. 

Friday, April 29, 2011

Consumer Fraud Reform Bill, S-2855, introduced in the Senate

Senator Jeff Van Drew (D-Cape May) introduced the companion bill to A-3333 on Thursday, which would reform New Jersey’s oft-abused Consumer Fraud Act.  The bill number is S-2855.

A-3333 has received bipartisan support in the Assembly and is sponsored by Assemblyman John McKeon (D-Essex) and co-prime sponsors Ralph Caputo (D-Essex) and Dominick DiCicco (R-Glouster).   It is cosponsored by Assemblywomen Amy Handlin (R-Monmouth), Mila Jasey (D-Essex), Elease Evans (D-Passaic), and Alison Littell McHose (R-Sussex). 

Wednesday, April 27, 2011

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

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

Case in point:

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

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

Benjamin_Moore_Natura_Semi-Gloss-thumb-240xauto-576

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

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

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

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 19, 2011

Budget break. What’s a New Jersey Tort Reformer to do?

One of the most appealing aspects about tort reform is that it has the power to spur economic growth while being budget-neutral. 

That said, the legislative “budget break” – which is the period between the end of March and June when the Legislature is in recess while the Assembly and Senate Budget Committees meet to finalize the next fiscal year’s budget – can seemingly push tort reform to the back burner. 

Fortunately, there are some things tort reformers can do:

Take a look at your municipal budget.  How much money is your town or city spending on litigation costs?  It’s probably much higher than you think.  Could some endangered local government service be spared if its litigation tab weren’t so high?   Perhaps it’s worth mentioning at your next town council meeting, especially if a lot of cases are referred to expensive private firms.  You’ll be happy you spoke up when your next property tax bill is due. 

Review tort reform measures that were recently introduced.  Senators Jennifer Beck (R-Monmouth) and Loretta Weinberg (D-Bergen) recently introduced S-2800, which adds an additional protection for doctors to two of the proposals in S-760/A-1982.  The new bill addresses protecting a doctor from having his or her name linked to a malpractice suit prematurely.  It also provides protections for volunteer physicians acting and good faith and prevents doctors’ insurance premiums from automatically increasing when a lawsuit is filed.

Assemblyman John Burzichelli (D-Gloucester) also introduced several bills in late 2010 which would protect local governments from liability in certain instances where whether is to blame.  The bills were endorsed by the New Jersey League of Municipalities, which you can read about here

See where redistricting has left you.  Are you in a new legislative district?  Use this as an opportunity to educate your new legislators on the importance of a business-friendly climate in New Jersey.  Unless they live under a rock, they’ve heard this before.  But they might not have thought about tort reform as a means to achieving economic growth.  You can check the new legislative map here to see if your municipality has been moved to a different district.

In sum, the budget break is a great time for tort reformers to connect the dots between economic growth in Trenton and municipal and family budgets at home.  It’s a great way to keep up the momentum and learn more about your community at the same time. 

Wednesday, April 13, 2011

NJLRA joins Innovation New Jersey

Continuing our quest to promote economic growth in New Jersey, NJLRA has joined Innovation New Jersey, a coalition of the state’s leading business and higher education organizations.

Innovation New Jersey seeks to foster the life sciences and biotechnology industries in New Jersey by uniting the state’s business and higher education communities.  NJLRA is optimistic that enacting meaningful lawsuit reform measures will encourage an innovation-based economy by making it safe for responsible pharmaceutical and biotechnology companies to operate here in New Jersey. 

“Statistics show that New Jersey’s pharmaceutical and biotechnology companies are a leading source of jobs and economic stability in New Jersey,” said Marcus Rayner, executive director of NJLRA.  “By protecting these companies from frivolous litigation, we are allowing them to invest more of their resources into doing what they do best: creating jobs and saving lives.”

Innovation New Jersey has received the support of Lieutenant Governor Kim Guadagno.  Together, the coalition hopes to achieve the following:

  • Encourage increased private and public sector research and development;
  • Promote the commercialization of new medicines, technologies and products to improve the quality of life globally;
  • Stimulate economic growth in New Jersey;
  • Retain and advance high-paying innovation-related jobs in the State;
  • Increase the number of Science, Technology, Engineering and Math (STEM) related graduates from New Jersey colleges and universities.

A complete list of Innovation New Jersey’s members can be found on INJ’s new website, http://innovationnj.net/

Monday, April 11, 2011

Senator Allen on medical malpractice reform, and other women’s issues

Allen The trials and tribulations Senator Diane Allen (R-Burlington) faced in New Jersey politics were front and center over the weekend in a Star-Ledger piece by Linda Ocasio. 

A cosponsor of S-760/A-1982, which would enact many of the medical malpractice reform measures NJLRA supports, Senator Allen offers her perspective as to why it hasn’t been acted upon:

“If we had more women of either party, we’d get a lot of these things through,” Senator Allen said. 

An extensive hearing of the bipartisan, bi-cameral Women’s Legislative Caucus last year underscored the declining number of OB/GYNs and subsequent impact on women’s access to care.  After months of languish, the Assembly version of the bill passed favorably from the Assembly Health and Senior Services Committee, but was later second-referenced to the Assembly Judiciary Committee. 

You can read the full Star-Ledger piece here

Thursday, April 07, 2011

The New Map

As most LRW readers already know, New Jersey’s new legislative district map has arrived.  Changes weren’t as drastic as some anticipated, and what this means for tort reform over the next decade remains to be seen.  LehighValleyLive.com has the before and after photos:   

New-jersey-redistricting-04f26e1901568216

Wednesday, April 06, 2011

Will trial lawyers make Caterpillar Inc. regret staying in Illinois?

Last month, we underscored Governor Christie’s pitch to attract Illinois businesses in an op-ed.  New Jersey’s “well-educated, diverse talent pool” and “innovative financing, incentive, and assistance programs” for new businesses is ideal for entrepreneurship – especially to a state which raised its corporate tax rate from 4.8 to 7 percent. 

The CEO of one business, however, recently told Illinois Governor Pat Quinn that his business would stay – but that the state’s business climate needs to change.   

Doug Oberhelman, CEO of Caterpillar Inc., which manufactures heavy equipment in the Peoria area, employs 23,000 people.  Governor Quinn reportedly acknowledged that the state’s business image is in need of an overhaul. 

Illinois ranked eighth in the region in job growth as a percentage of its population last year, according to Chicago Business.  To the chagrin of Caterpillar’s overseas representatives, personal income tax also rose, from 3 percent to 5 percent.  They expressed concern about the company’s ability to attract engineers, and reiterated that even if Governor Quinn’s call for a 30 percent reduction in businesses’ liability for workers compensation is enacted, Illinois would still have the 2nd highest rates in the nation. Illinois businesses also want to see a cap on civil liability. 

Governor Quinn also told Oberhelman that he plans to invest in Illinois’s infrastructure and help manufacturing companies improve their ability to export.  Let’s hope that that Illinois trial lawyers don’t take it as a green light to invest in workers compensation lawsuits in the meantime. 

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.

Monday, March 28, 2011

OLS: NJ’s unemployment rate lags due to “changes” in “high end job market”

We’ve mentioned in previous posts that New Jersey’s pharmaceutical companies shed 7 percent of their workforce last year, according to a report published by the Healthcare Institute of New Jersey

As the Senate Budget Committee began its budgetary hearings for 2012 today, Senator Paul Sarlo asked Legislative Budget Officer David Rosen why, “despite ambitious pro-business policies touted by the governor,” the Garden State’s unemployment rate continues to exceed 9 percent. 

“The fact that N.J.’s high end job market has largely been telecomm and pharmaceuticals – [those are] two industries that have been transformed largely beyond our control,” Rosen replied. 

Of course, a third job field may have had an impact on the previous two: litigation tourism. 

A cost-free way to stop the hemorrhaging of high end jobs is to enact changes to New Jersey’s Consumer Fraud Act, which has become one of the most abused laws of its kind.  Assemblyman John McKeon has introduced legislation, A-3333, which would make the law less hostile for high-end industries in New Jersey. 

Politicker NJ’s Darryl Isherwood has additional commentary on Monday’s budget hearing.

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.

Wednesday, March 16, 2011

New Jersey woman bummed over losing lottery numbers is in the running for “Ridiculous Lawsuit of the Month”

The Record’s Merry Firschein reported that Rakel Daniele of Fort Lee thought she won a quarter-million dollar “Mega Millions” lottery prize, only to find out that WABC called the wrong winning numbers.  WABC called 1, 2, 3, 4, 5, and Mega ball 12.  Daniele had all of these, minus the Mega ball number.  As it turns out, the winning ticket on June 19, 2009 would have read “4, 9, 12, 16, 46.”    

Instead of shouting expletives and getting on with life, Daniele is seeking $75,000 from WABC-TV, the Walt Disney Corporation, and an unidentified “Jane Doe.”  The lawsuit is now in federal District Court in Newark.  (Seriously). 

In addition to being “severely damaged” by relying on “false and incorrect” lottery results, the station added insult to injury when it rebroadcast the wrong numbers a second time.  Her complaint says that WABC went “beyond all possible bounds of decency, and were atrocious, and utterly intolerable in a civilized community.”  (Really).

Call me a cynic, but what I think goes beyond all possible bounds of decency is that a person would waste the court’s time and resources because she’s bummed.  Really. 

Nevertheless, you can vote for the most ridiculous lawsuit of the month at Institute for Legal Reform’s Website, http://www.facesoflawsuitabuse.com/poll/

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 09, 2011

Photos from NJLRA's Spring Membership Luncheon

Rich Bagger, Governor's Chief of Staff
Rich Bagger, Chief-of-Staff to Governor Christie

Marcus Audience

Marcus

Monday, March 07, 2011

A-1982 released by Assembly Health Committee!

Assembly bill A-1982, sponsored by Assemblyman Herb Conaway, was voted out of the Assembly Health and Senior Services Committee today, 8 votes in the affirmative and two abstentions. 

A-1982 takes steps to rectify the New Jersey Supreme Court’s 2010 decision in Ryan v. Renny, which gutted the affidavit of merit statute.  It also protects volunteer physicians from medical malpractice liability and prevents insurance companies from immediately imposing an increase on doctors who are named in a malpractice suit. 

Several committee members, including Assemblywomen Celeste Riley and Elease Evans, spoke of the impact New Jersey’s doctor crisis will have on women’s access to healthcare.  New Jersey already has a 12% gap between the number of New Jersey’s patients and doctors available to treat them.  This number is expected to widen by another 3,000 doctors by the end of the decade if changes are not made, and higher-risk specialties like obstetrics will be hit hardest. 

Assemblywoman Nancy Munoz, who voiced language concerns in a previous hearing, and Assemblyman Jerry Green were the lone abstentions. 

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.   

Thursday, February 24, 2011

What do North Carolina, Oklahoma, and North Dakota have in common?

Tort reformers in all three states had significant victories this week.

In North Carolina, S-33 would cap noneconomic awards in malpractice cases at $100,000.  It was advancing to the full Senate for a vote as of Thursday. 

A similar piece of legislation passed the full Senate in Oklahoma.  S-863 would cap noneconomic damages at $250,000

Meanwhile, in North Dakota, progress was made in the judicial branch.  A group of thirteen out-of-state plaintiffs had filed a product liability suit in North Dakota, which has one of the longest statutes of limitation in the country.  The state Supreme Court ruled in favor of the defendant in Vicknair v. Phelps Dodge.  Several groups, including NFIB and the U.S. Chamber of Commerce, argued that the statute of limitations from the plaintiffs’ home states should be applied, not the more plaintiff-friendly statute of limitations in North Dakota. 

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

Friday, February 18, 2011

A-3333 gains support

Assemblywoman Alison Littell McHose (R-Sussex) signed on as a cosponsor of A-3333, increasing the total number of sponsors and cosponsors to seven.  She joins primary sponsors Assemblymen John McKeon (D-Essex), Ralph Caputo (D-Essex), and Domenick DiCicco (R-Glouster), and cosponsors Assemblywomen Amy Handlin (R-Monmouth), Mila Jasey (D-Essex), and Elease Evans (D-Passaic). 

A-3333 calls for reforms to New Jersey’s oft-abused Consumer Fraud Act (CFA).  If enacted, A-3333 would do the following:

  • The individual cause of action provided for under the CFA would be available only to a “consumer,” who is defined as an individual and specifically excludes businesses;
  • Require that a plaintiff relied to his detriment on the use or employment of the unlawful method, act, or practice;
  •  Give the court the discretion to award damages appropriately, not to exceed three times the amount of actual damages sustained by the consumer;
  • Provide that the CFA applies only to transactions which occur in New Jersey.

More information about New Jersey’s CFA is available on NJLRA’s website

Wednesday, February 16, 2011

Read NJLRA’s letter-to-the-editor in this week’s edition of NJBIZ

Trial lawyers need a new hobby / Marcus Rayner

Excerpt:

New Jersey earned its reputation as the nation’s “medicine chest” many years ago. If you live here, chances are good that you know someone who is employed directly by a pharmaceutical company or indirectly through service contracts.

Read entire letter on the NJBIZ website. 

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

Thursday, February 10, 2011

NJLRA Statement on the Congressional Civil Justice Caucus

A new bipartisan issue caucus in Congress was announced today- the Congressional Civil Justice Caucus, which will focus on legal reform issues.   NJLRA is excited, to say the least. 

I applaud Congressmen Bob Goodlatte (R-VA) and Dan Boren (D-OK) for taking the lead on this issue at the Congressional level.  It’s helpful to have a bipartisan caucus focus on advancing a civil justice system conducive to the United States’ global economic competitiveness. 

Here in New Jersey -  a state where consumers have neither an obligation to ask for a refund before taking a business to court, nor to have encountered actual fraud in order to sue under the state Consumer Fraud Act - the Caucus carries a special significance for us.  It shows the hardworking men and women of our state that members of Congress are willing to carry our fight against lawsuit abuse to the highest levels of government.  Knowing that we have support as we try to stop the hemorrhaging of our key industries is invaluable. 

Most importantly, the Congressional Civil Justice Caucus gives us the opportunity to expose the target that the pharmaceutical industry has on its back in our state.  In the last year New Jersey shed 7.6 percent of its pharmaceutical jobs, due in part to litigation tourism by the trial bar.  Instead of the nation’s “Medicine Chest,” we are becoming a national leader in pharmaceutical job exportation. 

Ninety-three percent (93%) of the mass tort plaintiffs in New Jersey suing our pharmaceutical companies are out-of-state residents seeking the use of our plaintiff-friendly laws.  This is an unacceptable situation we must correct in order to achieve solid economic growth.  I am hopeful that the Caucus will push for reforms similar to A-3333, sponsored by Assemblyman John McKeon (D-Essex) in states where the Consumer Fraud Act encourages abuse. 

New Jersey is quickly losing ground to other states which have enacted common sense tort reform measures.  I encourage all members of New Jersey’s congressional delegation to support the Civil Justice Caucus and participate in this bipartisan forum. 

Monday, February 07, 2011

What do taxpayers in New Jersey and Louisiana have in common?

We’re paying for lawsuits. Lots of them. 

The Louisiana Lawsuit Abuse Watch (LLAW) released a study which found that eight of the state’s municipalities spent a collective $52 million fighting lawsuits between 2006 and 2009.  $37 million was spent in the form of judgments and settlements; $14.9 went to outside counsel. 

That’s $52 million.  In eight towns.  In just three years!

You may recall a Lawsuit Reform Watch post from April 2010, in which the cash-strapped city of Irvington, New Jersey, faced the loss of 20 police officers and 10 firefighters to help close a $5 million budget shortfall.  This announcement from Mayor Wayne Smith came days before an appellate court rejected the city’s attempt to have its insurance company cover a $5 million personal injury suit. 

Melissa Landry, executive director of LLAW, acknowledged that some lawsuits are legitimate, but that some “are filed purely in search of enrichment from the lawsuit lottery.  At a time when Louisiana, like most other states, are struggling, the public’s financial resources could have made an impact elsewhere: preserving the jobs of law enforcement personnel. 

The report, “Drinking from the Taxpayer Trough” can be found 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
www.thedailyshow.com
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!

Monday, January 31, 2011

Good reading: Tort reformers have momentum in NJ

Sherman “Tiger” Joyce, president of the American Tort Reform Association (ATRA), had the following to say about New Jersey’s prospects for civil justice reform in The Metropolitan Corporate Council publication:

“Of course, the litigation industry also remains strong throughout New Jersey, home to once-and-future judicial hellholes, and ATRA expects it to again push an expansion of wrongful death liability while actively opposing consumer fraud reform. But tort reformers, backed by Governor Chris Christie, have some momentum. They support three affirmative reform bills already filed during the current legislative session. One seeks to limit appeal bonds to the total value of the monetary judgment or $50 million, whichever is less. Another would revise the individual's cause of action under the Consumer Fraud Act and make other revisions regarding applicability (see trial lawyers' opposition noted earlier). The third pertains to liability, standards of care and insurance coverage for medical malpractice actions.”

Wednesday, January 26, 2011

President Obama: I’m willing to look at medical malpractice reform to rein in frivolous lawsuits

President Obama’s State of the Union address touched on two areas of interest to NJLRA supporters: medical malpractice reform and a flaw in the healthcare reform bill which requires all businesses to track expenditures to all vendors

Frivolous medical malpractice lawsuits affect the ever-increasing insurance premiums each doctor must carry, and these costs can vary significantly by specialty and by state.  In New Jersey, the medical malpractice crisis has lead to a homegrown healthcare crisis of our own, in which we are seeing fewer doctors willing to practice specialized medicine within the jurisdictions of the Garden State. 

Beginning January 1, 2012, all businesses would need to track expenditures over $600 with other vendors, and prepare a Form 1099.  This requires tracking down the taxpayer ID for each vendor as well.  This would be an especially difficult for small businesses, which lack the accounting resources of larger companies.  Fortunately, President Obama acknowledged the onerous burden this portion of the healthcare bill would place on economic growth. 

Excerpts from the President’s speech regarding medical malpractice and small business bookkeeping under the new healthcare law are quoted below:

Medical malpractice

“This means further reducing health care costs, including programs like Medicare and Medicaid, which are the single biggest contributor to our long-term deficit. Health insurance reform will slow these rising costs, which is part of why nonpartisan economists have said that repealing the health care law would add a quarter of a trillion dollars to our deficit. Still, I'm willing to look at other ideas to bring down costs, including one that Republicans suggested last year: medical malpractice reform to rein in frivolous lawsuits.

Small business bookkeeping under the new healthcare law

“Now, I've heard rumors that a few of you have some concerns about the new health care law. So let me be the first to say that anything can be improved. If you have ideas about how to improve this law by making care better or more affordable, I am eager to work with you. We can start right now by correcting a flaw in the legislation that has placed an unnecessary bookkeeping burden on small businesses.

You can read the entire speech here, via ABC’s website

Friday, January 21, 2011

You can’t make this stuff up: Do not drive or operate machinery [or polish guns]

A New Jersey man who saw his doctor about depression and insomnia began taking Zoloft and Ambien.  He then decided to polish his .38 caliber Colt revolver. 

The rest almost seems incredulous.    Robert Buck reportedly fell asleep while ‘inspecting’ his gun.  It lay in his right hand until he thought he heard the phone ring, and reached over with his left hand to get it.  The gun went off, and Buck took a bullet to his mouth.  He ended up with multiple skull fractures and blindness in his left eye. 

Robert Buck is now suing his doctor for medical malpractice, saying that prescribing both an anti-depressant and a sleep aid together deviated from accepted standards of medical care.  He has a separate product liability claim pending against the drug manufacturers. 

The issue now before the New Jersey Supreme Court is who may be considered an expert under the Affidavit of Merit Statute, N.J.S.A. 2A:53A-41.  Buck’s doctor specialized in family medicine but is board certified in emergency medicine.  His attorney obtained an affidavit from an expert who was board certified in emergency medicine, and also obtained an affidavit of merit from a psychiatrist.  Ocean County Superior Court Judge Steven Nemeth dismissed the suit because the attorney did not obtain an affidavit from a family-medicine practitioner, according to the New Jersey Law Journal.  An appellate court agreed.  

For its part, I’m told that the Ambien’s current labeling reads: “Warning: May Cause Drowsiness.”  Several internet searches reveal that it also cautions patients not to do “anything that requires you to be alert or awake.”  It also says not to “drive, operate machinery, or perform other hazardous activities after taking Ambien.” 

Wednesday, January 19, 2011

Controlling Property Taxes Through Legal Reform

Your friendly blogger spent Friday morning participating in a panel discussion hosted by the Insurance Council of New Jersey.  Our role as a panel was to explain the relationship between the courts and ever-increasing municipal insurance premiums.   Every taxpayer I know thinks their property taxes are too high- but we seldom explore how our state’s civil justice system played a role in worsening the crisis. 

What I learned there was alarming. 

A 10-year claims study by New Jersey’s largest public sector risk pool showed that the cost of lawsuits to property taxpayers is soaring, and in fact has nearly doubled in the past five years, due to a legal climate that encourages litigation even for cases that have little merit.

David Grubb, executive director of the New Jersey Municipal Excess Liability Joint Insurance Fund (MEL), said the total cost of claims against New Jersey government entities runs between $800 million and $1 billion a year, including liability, workers compensation and property losses.

The MEL study, which included data from 365 municipalities, found that the cost of liability claims per 100 residents rose 104 percent from $587 to $1,200 between 2000 and 2010, including a jump of 87 percent just since 2005.

 The cost of employment practices liability increased from $41 per full time employee in 2000 to $485 in 2010. These figures do not include the cost of claims not covered by an insurance program.

 Meanwhile, tort liability stood at $475 per 100 residents in 2000 and jumped 66 percent to $791 by 2010.

It isn't just small businesses and large companies that are suffering under New Jersey's legal system, it's our towns, school districts and counties.  As property taxpayers and consumers, we are hit twice to pay the lawyers.

It's interesting to see how alarming the data is.  More forums are planned around the state and we will post them as we learn of them.

Monday, January 17, 2011

New Jersey needs its Medicine Chest

As 2010 came to a close, the Healthcare Institute of New Jersey released its 2010 Economic Report.  It showed that New Jersey’s pharmaceutical industry is both threatened (New Jersey’s pharma jobs declined by 7.6 percent over the previous year),  and also more critical to our state’s economy than ever, as the industry’s total economic impact is at an all time high of $29.25 billion.  This news came the same week as NJBIZ reported that whistleblower lawsuits are rapidly becoming a favorite target for trial lawyers, who have set their sights on the pharmaceutical industry

David S. Barmak, an attorney who was quoted in the NJBIZ article, described the increasing number of whistleblower lawsuits as “a huge assault on the pharmaceutical industry.”  Another attorney quoted notes that as people find out about the “potential rewards,” more whistleblower suits pop up. 

Whistleblower lawsuits help government entities recoup overbillings and mistaken billings from a private company when used as intended.  But with individuals realizing they may cash in on a share of recovered funds, and trial lawyers all too eager to assist, New Jersey’s premier industry is an attractive target – and government entities, the article notes, can be difficult negotiators.  This increases pressure to settle, as Dey Inc. did recently.  Its $280 million settlement was one of at least four made by pharmaceutical companies in the month of December alone.  Abbott Laboratories, Inc., also coughed up a $421.1 million agreement. 

New Jersey earned its reputation as the nation’s “medicine chest” many years ago.  If you live here, chances are good that you know someone who is employed directly by a pharmaceutical company or indirectly through service contracts.  The 2010 Economic Report shows that especially as unemployment persists, New Jersey’s pharmaceutical companies are more important to our tax base than ever, and it’s crucial that we understand what is driving them out.    Let’s just say that the trial lawyers’ newest hobby doesn’t help. 

Thursday, January 13, 2011

Salty Claim Against Denny’s Doesn’t Float in Court

As you may remember, New Jersey’s Consumer “Fraud” Act is so broadly constructed that a Tinton Falls resident was able to sue the Denny’s restaurant chain last year, claiming that he (and the public at large) had no idea his favorite “Moons over my hammy” dish was “loaded up with the salt.”  Plaintiff Nick DeBenedetto argued that it amounted to consumer fraud (in the State of New Jersey, at least).  He was being treated for hypertension, after all.  An advocacy group and local attorneys adopted the cause on behalf of Denny’s patrons, unsuspecting or not, in a class action lawsuit.    

Fortunately, the lawsuit was dismissed.  And a state court of appeals upheld this decision, according to a report by Ken Serrano in The Home News Tribune.

“Neither plaintiff nor the punitive class he claimed to represent asserted any physical injury or harm as a result of defendant’s failure to disclose the sodium content,” the court said in its decision.  DeBenedetto will not be permitted to sue under the New Jersey Consumer Fraud Act, but he may be able to pursue an action under the Products Liability Act. 

Commentary suggested that the plaintiff reimburse Denny’s for the costs it incurred.  Unfortunately, history suggests that honest consumers are usually the ones who end up bearing these costs.  Real consumer protection doesn’t mean more ways to sue – it means keeping junk litigation like this out of the civil justice system. 

Monday, January 10, 2011

Right after swearing in, Wisconsin Governor starts tackling tort reform

As Governor Christie prepares for his State-of-the-State address, most of us in the Garden State probably didn’t take much note of the gubernatorial changing-of-hands in Wisconsin earlier this month. 

Newly minted Governor John Walker convened a Special Legislative Session to introduce his Civil Justice Reform Package.  It’s a significant part of his “Wisconsin is open for businesses” campaign.

Expert testimony, non-economic damage award limits, and product-liability are key reforms included in this proposal.  You can learn more about Governor Walker’s pro-civil justice agenda here

Friday, January 07, 2011

Beyond the Toolkit: Controlling Taxes Through Legal Reform

Every mayor and taxpayer wants to control property taxes. But many are unaware of the role that New Jersey’s courts have played in driving up tax bills in recent years. The erosion of sovereign immunity and the expansion of areas in which municipalities – and by extension, taxpayers – are expected to foot the bill have forced towns to spend ever-increasing sums on insurance premiums, risk management, and maintenance at a time when they can least afford it. Elected officials and the insurance professionals that assist them are invited to learn how legal issues affect their bottom lines and how they can work together to reverse current trends.

The Insurance Council of New Jersey will be hosting a seminar next Friday, January 14th, at the Trenton Marriott entitled “Beyond the Toolkit: Controlling Taxes Through Legal Reform.” 

Confirmed speakers include: Mary Caffrey, President of the Charleville Company, LLC; Matthew J. Giacobbe, Esq., Partner, Cleary, Giacobbe, Alfieri, Jacobs LLC; David N. Grubb, Chief Executive Officer, Municipal Excess Liability Joint Insurance Fund; and Richard Wilson, Selective Insurance Company. 

They will discuss how towns can put policies in place to reduce their costs related to risk management and their insurance policies, and will be available to answer questions.  The cost is $50, which you can pay securely through ICNJ’s website

Registration begins at 9 a.m. at the Trenton Marriott on January 14th.  The workshop will run from 10 a.m. until noon. 

Thursday, January 06, 2011

Last chance to vote for the most obnoxious lawsuit of 2010!

The contenders:

A teen intentionally drives her car into oncoming traffic, killing a pregnant mom and her 13-year-old son - and then sues the surviving family members for her 'mental anguish';
A drunk New Jersey man drives crashes his motorcycle into a car, and then sues the bar for his injuries;
A customer spills hot tea on herself and sues Starbucks;
A fast food restaurant manager sues McDonald's for making him fat.

Click here to cast your vote!

Wednesday, December 29, 2010

2010 in Review

            I am happy to report that the 214th NJ legislature has taken positive first steps toward reforming New Jersey's civil justice climate.  Most notably, A-2473/S-480, which extends appeal bond caps to all industries, is now on second reading in the General Assembly.  We also saw efforts to reform New Jersey's oft-abused Consumer Fraud Act with the introduction of A-3333.  Finally, the Assembly Health and Senior Services Committee held a hearing earlier this year on A-1982, which would reform New Jersey's medical malpractice environment for our state's doctors.    Collectively, these initiatives would discourage frivolous class-action litigation and enhance the integrity of scientific evidence admitted in our courts.  NJLRA would like to thank all of the bills' sponsors and the legislative leadership in both parties for their commitment to advancing pro-business legislation.  Together with our supporters, we are able to educate the legislature on the importance of these initiatives.  Senator Raymond Lesniak (D-Union), who was NJLRA's keynote speaker at our Fall Membership Luncheon, said NJLRA's proposals will be a "cornerstone" of the state's effort to reposition New Jersey's economy for long-term growth.  We enthusiastically accept Senator Lesniak's wisdom. 

            If you think you have seen more of NJLRA lately, it's because we have increased efforts to get our message out.  In 2010 we re-launched our website, where you can find any of the eight op-eds I authored over the past year.  NJLRA has also been the focus of several news stories and has written a dozen letters to-the-editor.  I encourage you to visit NJLRA's Blog and Facebook page.  You can also follow us on Twitter

We continue to make an effort to reach out to New Jersey's small business community.  A recent poll we conducted in conjunction with the Monmouth University Polling Institute suggests that many of the Garden State's small businesses feel vulnerable to abusive lawsuits.  We are hoping to articulate the unique needs of New Jersey's small business community as we meet with legislators across the state. 

      As we have said in the past, New Jersey cannot recover from this recession without sound policies that support job growth.  With limited resources to fund tax breaks or business incentives, legal reform offers policymakers in Trenton a revenue-neutral policy change that can send a very strong message to employers all across the nation.  States which have enacted tort reform, including Texas, now lead the country in job growth and physician retention. 

            Thank you again for your continued support.  I am confident that we will continue our path toward reforming New Jersey's civil justice laws in 2011.  Please save the date for NJLRA's first Membership Meeting of 2011, which will be held on Tuesday, March 8th at noon at the Trenton Country Club.  We will discuss our plans for 2011.  As always, please do not hesitate to contact me if I can ever be of assistance. 

Wednesday, December 22, 2010

Vote in NJLRA’s Most Obnoxious Lawsuit of 2010 Poll

 

The contenders:

 

A teen intentionally drives her car into oncoming traffic, killing a pregnant mom and her 13-year-old son - and then sues the surviving family members for her 'mental anguish';

A drunk New Jersey man drives crashes his motorcycle into a car, and then sues the bar for his injuries;

A customer spills hot tea on herself and sues Starbucks;

A fast food restaurant manager sues McDonald's for making him fat.

Click here to cast your vote!

In case you missed it...

Some obnoxious lawsuit highlights from earlier this year:

Manager of a McDonald’s restaurant in Brazil sues the company for making him fat – and wins.  $17,500 for his weight gain. 

In a failed suicide attempt, a Montana teenager deliberately drives her car into oncoming traffic, killing a pregnant mother and her 13-year-old son who were on their way home from a chorale concert – and the teenage driver had the audacity to sue the family’s estate for ‘mental anguish’ and potential lost earnings, among other things. 

Friday, December 17, 2010

Texas pursues the Holy Grail of Tort Reform

Twenty-three counties lacked an E.R. doctor.  Ten counties lacked an OB-GYN.  No, this is not a third world country: it was Texas, prior to tort reform. 

The Wall Street Journal calls the pre-reformed Texas a “holy place on the tort bar pilgrimage,” that has now morphed into a “Mecca for doctors.”  Incentives didn’t hurt, either, and Texas now leads the country in job creation.  Product liability, class-action certification, and noneconomic damage caps were reformed in 2003 and 2005.  Now, according to the Journal, Texas Governor Rick Perry wants to extend his state’s tort reform successes – British style.  It’s a thinly-veiled deterrent to filing frivolous lawsuits, which drive up business costs and drive down economic growth. 

The “loser pays” concept isn’t a new one.  The purest-form version of “loser pays” is that the losing party picks up the attorney’s tab.  The proposed caveat would impose a penalty on the losing firm which files the case, forcing trial lawyers to think twice before filing questionable claims. 

Governor Perry is also calling for “new legal channels” to expedite claims below $100,000, but details about this proposal aren’t readily available. 

It sounds like Texas might be headed in the right direction.  It begs the question: if Texas can entice doctors, why can’t New Jersey?