Top 10 Tips for Defending Mass Torts in New Jersey by James J. Ferrelli and Alyson B. Walker
New Jersey is home to many mass torts—asbestos, hormone replacementtherapy (HRT), NuvaRing, Vioxx, Fosamax, Accutane, and Bextra/Celebrex—toname just a few. With plaintiffs filing numerous cases in the Garden State, it’seasy to fall into the mindset that New Jersey is for plaintiffs. But don’t get caughtin that trap and become complacent, filing rote motions and litigating onautopilot. With the right strategy and tactics, New Jersey can be for defendantstoo. Here are our top 10 tips for defending mass torts in New Jersey:
1. Stop a Mass Tort Before It Starts. Challenge the mass
Your objection to mass tort designation should demon-
tort designation pursuant to Rule 4:38A, which states “[t]he
strate to the court that the pertinent factors relating to mass
Supreme Court may designate a case or category of cases as a
tort designation do not weigh in favor of the designation with
mass tort to receive centralized management in accordance
regard to the case or cases in question. The mass tort designa-
with criteria and procedures promulgated by the Administra-
tion criteria are contained in Directive #7-09 (found on the
tive Director of the Courts upon approval by the Court. Prom-
ulgation of the criteria and procedures will include posting in
Directive #7-09 lists 14 criteria to be considered in deter-
the Mass Tort Information Center on the Judiciary’s Internet
mining whether mass tort designation is warranted. These fac-
tors include considerations such as “whether the cases involve
The procedures require all interested parties to be served, as
large numbers of parties;” “whether the cases involve claims
well as a notice to the bar to appear in legal newspapers and
with common, recurrent issues of law and fact that are associ-
ated with a single product, mass disaster, or complex environ-
Notwithstanding the number of mass torts designated by
mental or toxic tort;” and “whether there is a high degree of
the New Jersey Supreme Court, mass tort designation is not
commonality of injury or damages among plaintiffs.”1 Other
automatic under our Court Rules, and the New Jersey Supreme
considerations are “whether there is geographical disperse-
Court has, in fact, denied requests for mass tort designation.
ment of parties;” “whether centralized management is fair
Upon learning of a proposed mass tort, submit comments
and convenient to the parties, witnesses and counsel;”
and objections to the classification of mass tort, in the form
“whether coordinated discovery would be advantageous;”
of a brief opposing mass tort designation, and do so prompt-
“whether centralization would result in the efficient utiliza-
ly, before a mass tort designation is issued. If supporting doc-
tion of judicial resources and the facilities and personnel of
umentation and/or exhibits are necessary, include them as
the court;” and “whether there is a risk of duplicative and
well. Obviously, these submissions should be made before the
inconsistent rulings, orders or judgments if the cases are not
court rules on the mass tort designation request. This requires
managed in a coordinated fashion.”2 Further, objections and
that you and your client be vigilant for potential mass torts
comments can be made regarding the site of the centralized
2. Make Plaintiffs Prove It. Make
plaintiffs prove a prima facie case. In Lorev. Lone Pine Corp., the court dismissed
product in question. A Lone Pine order
successful forum non conveniens motion,
the plaintiffs’ claims with prejudice for
may be crafted to require the plaintiff to
the plaintiffs’ failure to comply with a
forum non conveniens motion moot).6
Plus, the closer to trial you get, the less
medication, but may not have an injury.
injury—“basic facts,” according to the
The Lone Pine order allows you to see
court, “to support their claims of injury
been granted in New Jersey mass torts.
plaintiff’s alleged exposure to toxic sub-
3. Science Matters. Typically, the
affirmed the forum non conveniens dis-
missed the plaintiffs’ claims, noting that
Kingdom in the In re Vioxx Litigation.7
lawsuit and “failed to provide anything
that resembles a prima facie cause of
tiffs’ claims. The court questioned why a
Lone Pine orders require a plaintiff to
demonstrate, by a date certain, the basic
facts giving rise to the plaintiff’s claim,
be applied, at least in part. Additionally,
the court found that New Jersey’s inter-
alleged injury. A Lone Pine order requir-
the state was “lessened by the residence
very well result in cases being dismissed
of the plaintiffs abroad and their inges-
for failure to present a prima facie case,
flight experts in the field. These factors
tion, in the U.K., of a prescription drug
also weigh in favor of starting on expert
court also considered the strong interest
the cost of extensive discovery—obtain-
litigation, as well as the “administrative
pathology can be problematic—so it is a
litigation pile up in congested centers”
A Lone Pine order can be used to cut
client the best opportunity to obtain all
mony that supports the plaintiffs’ theo-
5. Candor and Collegiality Count.
extensive fact discovery. It is of particu-
4. Think Outside New Jersey.
Think ahead on a potential forum non
opposing counsel and your co-counsel. conveniens motion. If the defendant has
field will offer valid expert testimony on
(at least regarding candor), this princi-
A Lone Pine order is also a way to fil-
plaintiff is from out of state, move early
Jersey mass tort, in which the coordinat-
to limit the scope of discovery regarding
client the time and cost of needless dis-
forum non conveniens with expedited
will ensure that you are on top of every-
propose. If you fail to do so, you run the
7. Preserve, Preserve, Preserve. If
reduce the client’s records-related costs.
Other issues to consider include staffing
your personal reputation, but also likely
the trial court continues to deny them.
opportunity arises, bring the appeal.
Externally, participate in case manage-
ment conferences—don’t just attend
ticularly in New Jersey mass tort litiga-
tions; lapses in collegiality could like-
your credibility is a critical element of
the Vioxx litigation, the Appellate Divi-
6. Pick Your Battles Wisely. This is
punitive damages award in McDarby v.Merck & Co., Inc., on the grounds that a
responsibilities for both sides, and make
in a discovery dispute over these respon-
coordinating judge will be omnipresent.
The McDarby court also held that the
the judge (see No. 10, below); similarly,
gut: Is it a major and important issue to
striking of awards of attorneys’ fees and
your case? If so, see No. 7, below. If not,
lion, respectively, in favor of the plain-
9. Act Locally: Retain and Use Local Counsel. At a minimum, you’ll
interests. Just remember that the reputa-
need someone to sponsor your pro hacMcDarby were significant for mass tort
vice admissions if you are not licensed in
dants’ argument in McDarby that the
plaintiffs’ product liability claims under
rules to any traditional issues, practices,
and judicial preferences. Also, effective
quent application is with respect to doc-
McDarby, an appeal may establish posi-
client to minimize excessive travel costs
8. Think Globally. Internally, pre-
state courts. If you’re going to draw a
10. Play Nice. You’ll be spending a
that will be filed, and start your organi-
zation early. Although the first few cases
See In re Vioxx Litig., 395 N.J. Super.
decrease the cost of litigation by elimi-
missed, 200 N.J. 282, 980 A.2d 487
13. Id. at 54-56, 60-61, 949 A.2d 223. respectfully. The litigation will move
14. See also, e.g., Kendall v. Hoffman-LaRoche, Inc., et al., No. A-2633-08T3,
ly, which will likely lead to cost savings
and optimal results for your client.
1904, **88-94 (Aug. 5, 2010), cert.granted, 205 N.J. 99 (Feb. 3. 2011)
Conclusion
action less daunting, and less costly for
the defendant a level playing field).
15. For information on appearances pro
advance client interests more effectively
hac vice, see Rule 1:21-2. James J. (“J.”) Ferrelli is a partner in the trial practice group of Duane MorrisEndnotes LLP in Cherry Hill. A trustee of the New Jer-sey State Bar Association and a member ofthe editorial board of New Jersey Lawyer
Magazine, he concentrates his practice pri-marily in the areas of business litigation,products liability, and class actions.Alyson B. Walker is an associate in the trial practice group of Duane Morris LLP inLore v. Lone Pine Corp., No. L-03306-
Philadelphia. She practices in the area oflitigation. The opinions expressed in thisarticle are exclusively those of the authors,and do not represent the views of DuaneSee, e.g., Kurzke v. Nissan Motor Corp.,
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