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-
New Jersey mass torts website).
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-
on the mass tort website.
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
looming on the horizon.
NEW JERSEY LAWYER
2. Make Plaintiffs Prove It.
covery in cases in which a plaintiff may
deadlines. This allows you to explore
plaintiffs prove a prima facie
case. In Lore
not have even been exposed to the
and develop the necessary facts for a
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
without having completed full discov-
the plaintiffs' failure to comply with a
demonstrate exposure to your client's
ery (which could arguably make your
case management order requiring them
product. Alternatively, a plaintiff may
forum non conveniens
to demonstrate certain information
have, for example, taken a particular
Plus, the closer to trial you get, the less
with respect to claims for personal
medication, but may not have an injury.
inclined a judge may be to grant your
injury—"basic facts," according to the
The Lone Pine
order allows you to see
motion, and you may have issues
court, "to support their claims of injury
what claims and cases sink or swim
regarding another available forum.
and property damage."3 These facts
before engaging in expensive, full-
Forum non conveniens
included information regarding each
blown discovery practice.
been granted in New Jersey mass torts.
plaintiff's alleged exposure to toxic sub-
3. Science Matters.
In 2007, for example, the New Jersey
stances and medical and expert reports
science is critically important in mass
Superior Court, Appellate Division
of treating physicians and other experts
tort cases. Line up experts and under-
affirmed the forum non conveniens
to support causation.4 The court dis-
stand the science early on, and use it
missal of 98 plaintiffs from the United
missed the plaintiffs' claims, noting that
from the outset to develop and hone
Kingdom in the In re Vioxx Litigation
they had 16 months since they filed the
your case strategy. From depositions to
Ultimately, the Appellate Division
lawsuit and "failed to provide anything
possible motion practice, the science of
found that the public interest factors
that resembles a prima facie
a case can and usually will have a
were decisive in dismissing the plain-
tremendous impact. But if you do not
tiffs' claims. The court questioned why a
orders require a plaintiff to
get up to speed early on the applicable
New Jersey jury should decide a case in
demonstrate, by a date certain, the basic
science in your case, you may be miss-
which U.K. law and regulations would
facts giving rise to the plaintiff's claim,
ing tactical opportunities for the
be applied, at least in part. Additionally,
including causation of the plaintiff's
defense of the case. On a more practical
the court found that New Jersey's inter-
alleged injury. A Lone Pine
level, it may be extremely time-consum-
est in having the litigation decided in
ing expert testimony on causation could
ing to find the appropriate expert for
the state was "lessened by the residence
very well result in cases being dismissed
your cases, or there may be few top-
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
stopping needless litigation expenses on
also weigh in favor of starting on expert
subject to foreign regulation."8 The
frivolous claims. Imagine going through
witness issues at an early juncture.
court also considered the strong interest
the cost of extensive discovery—obtain-
Similarly, finding out what informa-
of the U.K. in the determination of the
ing medical records and taking deposi-
tion and/or records your experts need is
litigation, as well as the "administrative
tions—only to find that the plaintiffs
important—and in the case of obtaining
difficulties which follow from having
cannot produce an expert establishing a
pathology can be problematic—so it is a
litigation pile up in congested centers"
link between the product and the
best practice to get a jumpstart on the
as factors in support of affirming the
science and expert witness issues early
forum non conveniens
A Lone Pine
order can be used to cut
on in the case in order to give your
The New Jersey Supreme Court
to the chase, and obtain an early deter-
client the best opportunity to obtain all
denied certification of the Appellate
mination that there is no expert testi-
pertinent materials for its experts
mony that supports the plaintiffs' theo-
(which may or may not be available as
5. Candor and Collegiality Count.
ry of causation, and avoid the costs of
more time passes).
Candor with the court is of the utmost
extensive fact discovery. It is of particu-
4. Think Outside New Jersey.
importance, as is collegiality with
lar use in cases where the defendants
Think ahead on a potential forum non
opposing counsel and your co-counsel.
believe that no reputable expert in the
motion. If the defendant has
While this is true just about everywhere
field will offer valid expert testimony on
a persuasive argument that it lacks a
(at least regarding candor), this princi-
connection to New Jersey, and the
ple is particularly magnified in a New
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-
ter potential plaintiffs and save your
to limit the scope of discovery regarding
ing judge will be omnipresent at the
client the time and cost of needless dis-
forum non conveniens
(typically) monthly case management
NEW JERSEY LAWYER
conferences, telephone conference calls,
ment production or discovery as you
will ensure that you are on top of every-
hearings, and trials.
propose. If you fail to do so, you run the
thing. Consider hiring a vendor for
In a typical mass tort, the court gets
risk of violating No. 5, above.
records collection and/or medical
to know counsel quite well. Being any-
7. Preserve, Preserve, Preserve.
records analysis and summaries to
thing other than completely forthcom-
you believe you have valid arguments,
reduce the client's records-related costs.
ing with the court will not only damage
don't stop filing motions just because
Other issues to consider include staffing
your personal reputation, but also likely
the trial court continues to deny them.
and coordination of case work and case
undermine the effectiveness of your
Preserve issues for appeal, and when the
arguments to the court and the court's
opportunity arises, bring the appeal.
in case manage-
perception of your client.
Timidity has no place in advocacy, par-
ment conferences—don't just attend
Further, judges in New Jersey general-
ticularly in New Jersey mass tort litiga-
them. Volunteer to take on a task, and
ly expect collegiality among counsel,
tion, notwithstanding that a single case
think about the long-term impacts of
perhaps moreso than in other jurisdic-
typically involves a host of significant
any decisions made at these confer-
tions; lapses in collegiality could like-
issues, and you may well not prevail on
wise undermine your credibility with
all issues. New Jersey appellate courts
What may work in one case—or even
the court. As the face of your client to
have recently issued a number of deci-
several cases—could become a night-
the court, it goes without saying that
sions that are notable for defendants.
mare when dealing with mass torts.
your credibility is a critical element of
For example, in a case arising out of
Think through the best ways to stream-
your effectiveness as an advocate for
the Vioxx litigation, the Appellate Divi-
line discovery procedures, create master
sion threw out a multi-million dollar
pleadings and/or discovery forms, and
6. Pick Your Battles Wisely.
punitive damages award in McDarby v.
establish reasonable timelines. Set
the corollary to No. 5, above. Make
Merck & Co., Inc.
, on the grounds that a
responsibilities for both sides, and make
informed judgments on what are really
punitive damages claim against a phar-
sure they are clear and practical. When
important issues. As noted above, the
maceutical company was not permitted
in a discovery dispute over these respon-
coordinating judge will be omnipresent.
under the Product Liability Act (PLA).11
sibilities, try to work with opposing
Decisions to quibble over minutia that
court also held that the
counsel to resolve them before going to
are subject to amicable resolution will
PLA subsumed the plaintiffs' Consumer
the judge (see No. 10, below); similarly,
not impress the judge. Go with your
Fraud Act claims, which resulted in the
think about whether the issue is impor-
gut: Is it a major and important issue to
striking of awards of attorneys' fees and
tant enough to raise with the court (see
your case? If so, see No. 7, below. If not,
costs of some $1.7 million and $2.4 mil-
Nos. 6 and 7, above).
see if you can resolve it amicably among
lion, respectively, in favor of the plain-
9. Act Locally: Retain and Use
counsel, consistent with your client's
tiffs in that case.12
At a minimum, you'll
interests. Just remember that the reputa-
The legal principles established in
need someone to sponsor your pro hac
tion you create may be with you for a
were significant for mass tort
admissions if you are not licensed in
long time, and it may ultimately be
defendants, notwithstanding that the
the Garden State.15 But more important-
impossible to repair the damage to your
Appellate Division rejected the defen-
ly, local counsel will know how the
reputation resulting from the decision
dants' argument in McDarby
court operates, from the New Jersey
to fight over an issue of negligible
plaintiffs' product liability claims under
rules to any traditional issues, practices,
the PLA were preempted by the federal
and judicial preferences. Also, effective
One area in which this rule has fre-
Food, Drug and Cosmetic Act.13 As in
use of local counsel will enable your
quent application is with respect to doc-
, an appeal may establish posi-
client to minimize excessive travel costs
ument discovery. The scope of discovery
tive precedential opinions to be applied
and expenses for proceedings occurring
in New Jersey is generally interpreted
in future cases, even where you do not
in New Jersey, some of which can be
broadly by trial judges, and the mass
prevail on all issues in the appeal.14
handled by local counsel as a cost and
tort arena is no different from other
8. Think Globally.
time saving measure.
state courts. If you're going to draw a
pare your office for the number of cases
10. Play Nice.
You'll be spending a
line in the sand on document produc-
that will be filed, and start your organi-
lot of time with co-counsel and oppos-
tion or other discovery, be prepared to
zation early. Although the first few cases
ing counsel, as well as the coordinating
demonstrate to the court good reasons
may come in slowly, they will multiply
judge. How you handle hotly debated
for setting the boundaries of your docu-
quickly. Being prepared ahead of time
topics, such as production of documents
NEW JERSEY LAWYER
and issues of privilege, can impact the
factual record demonstrating that
future course of litigation. Dealing
the plaintiff's chosen forum is
above-board, being respectful, and
extending professional courtesies can
See In re Vioxx Litig.
, 395 N.J. Super.
make for a collegial relationship with
358 (App. Div. 2007).
opposing counsel that can continue
through the mass tort litigation. From
your client's standpoint, this will
10. 193 N.J. 221 (2007).
decrease the cost of litigation by elimi-
11. 401 N.J. Super. 10, 94-95, 949 A.2d
nating and avoiding unnecessary dis-
223 (App. Div. 2008), appeal dis-
putes and/or motion practice.
, 200 N.J. 282, 980 A.2d 487
This is not to suggest that you should
ever stop advocating for your client's
at 95, 949 A.2d 223.
interests; rather, agree to disagree
at 54-56, 60-61, 949 A.2d 223.
. The litigation will move
14. See also, e.g.
, Kendall v. Hoffman-La
more smoothly and more professional-
Roche, Inc., et al.
, No. A-2633-08T3,
ly, which will likely lead to cost savings
2010 N.J. Super. Unpub. LEXIS
and optimal results for your client.
1904, **88-94 (Aug. 5, 2010), cert.
, 205 N.J. 99 (Feb. 3. 2011)
(reversing $10.5 million plaintiff's
Hopefully, these 10 tips will make the
verdict in Accutane trial and order-
task of defending a New Jersey mass tort
ing new trial on grounds that defen-
action less daunting, and less costly for
dant's numerical proofs should have
your clients. With diligent and prudent
been admitted at trial, which denied
lawyering, and a focus on collegiality
the defendant a level playing field).
and candor, defense counsel can
15. For information on appearances pro
advance client interests more effectively
and cost efficiently, and increase the
likelihood of a favorable outcome.
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-
Directive #7-09, Procedure for
sey State Bar Association and a member of
Requesting Designation of a Case as
the editorial board of
New Jersey Lawyer
a Mass Tort for Centralized Manage-
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
85, 1986 N.J. Super. LEXIS 1626
litigation. The opinions expressed in this
(N.J. Sup. Ct. L. Div. Nov. 18, 1986)
article are exclusively those of the authors,
and do not represent the views of Duane
Morris LLP or its clients.
See, e.g., Kurzke v. Nissan Motor Corp.
164 N.J. 159, 168 (2000) (generally,
forum non conveniens
made after moving party has made
good faith effort to obtain discovery
and can provide the court with a
NEW JERSEY LAWYER
The View From the Bench:
Practices and Developments in New Jersey Mass Tort Proceedings
by James J. Ferrelli
The New Jersey Mass Tort Designation Process
Who Decides What Kind of Cases Go Where?
by Michael Dore
Why are Mesothelioma Cases in New Jersey Still on the Rise?
by Christopher M. Placitella
Does Medical Monitoring Still Exist?
by James J. Pettit
Class Actions and the Quest for a Fair Resolution in Mass Tort Litigation
by Charles E. Reuther
Undisclosed Dangers of Heparin
A New Mass Tort on the Horizon?
by Neal Lewis and Daniel R. Lapinski
Food For Thought
The Importance of the Early Disposition of Baseless Claims in New Jersey Products Liability Mass Tort Litigation
by Michelle M. Bufano
Confidentiality in Mass Torts
New Rules, New Issues, New Perspectives
by David Buchanan and Christopher Seeger
Use of Social Networking Sites in Mass Tort Litigation
A Defense Perspective
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
by Ellen Relkin
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