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Nj lawyer magazine
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
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.
plaintiffs prove a prima facie
case. In Lore
v. Lone Pine Corp.
, the court dismissed
product in question. A Lone Pine
successful forum non conveniens
the plaintiffs’ claims with prejudice for
may be crafted to require the plaintiff to
the plaintiffs’ failure to comply with a
forum non conveniens
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.
affirmed the forum non conveniens
missed the plaintiffs’ claims, noting that
Kingdom in the In re Vioxx Litigation
lawsuit and “failed to provide anything
that resembles a prima facie
tiffs’ claims. The court questioned why a
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
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
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.
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
will ensure that you are on top of every-
propose. If you fail to do so, you run the
7. Preserve, Preserve, Preserve.
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.
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.
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.
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
At a minimum, you’ll
interests. Just remember that the reputa-
need someone to sponsor your pro hac
were significant for mass tort
admissions if you are not licensed in
dants’ argument in McDarby
plaintiffs’ product liability claims under
rules to any traditional issues, practices,
and judicial preferences. Also, effective
quent application is with respect to doc-
, an appeal may establish posi-
client to minimize excessive travel costs
8. Think Globally.
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-
, 200 N.J. 282, 980 A.2d 487
at 54-56, 60-61, 949 A.2d 223.
. The litigation will move
14. See also, e.g.
, Kendall v. Hoffman-La
Roche, 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.
, 205 N.J. 99 (Feb. 3. 2011)
action less daunting, and less costly for
the defendant a level playing field).
15. For information on appearances pro
advance client interests more effectively
James J. (“J.”) Ferrelli is a partner in
the trial practice group of Duane Morris
LLP in Cherry Hill. A trustee of the New Jer-
sey State Bar Association and a member of
the 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 in
Lore v. Lone Pine Corp.
, No. L-03306-
Philadelphia. She practices in the area of
litigation. The opinions expressed in this
article are exclusively those of the authors,
and do not represent the views of Duane
See, e.g., Kurzke v. Nissan Motor Corp.
Practices and Developments in New Jersey Mass Tort Proceedings
The New Jersey Mass Tort Designation Process
Who Decides What Kind of Cases Go Where?
Why are Mesothelioma Cases in New Jersey Still on the Rise?
Does Medical Monitoring Still Exist?
Class Actions and the Quest for a Fair Resolution in Mass Tort Litigation
by Neal Lewis and Daniel R. Lapinski
The Importance of the Early Disposition of Baseless Claims in New Jersey Products Liability Mass Tort Litigation
New Rules, New Issues, New Perspectives
by David Buchanan and Christopher Seeger
Use of Social Networking Sites in Mass Tort Litigation
by Stuart M. Feinblatt, Beth S. Rose and Gwen L. Coleman
Simultaneous Trials Bring New Challenges to New Jersey Courts
by Eliot J. Walker and John J. Sullivan
Choice of Law and Punitive Damages in New Jersey Mass Tort Litigation
by Kenneth J. Wilbur and Susan M. Sharko
Setting the Record Straight on Misconceptions About Pharmaceutical Litigation in New Jersey Mass Tort Courts
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