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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 Lore v. 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 hac McDarby 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-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. 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 Morris Endnotes
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

    Source: http://dnmrs.co/articles/static/ferrelli_walker_njlawyer_0811.pdf

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