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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- 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- website (www.judiciary.state.nj.us)." 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 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 looming on the horizon.
NEW JERSEY LAWYER August 2011 2. Make Plaintiffs Prove It. Make
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 order successful forum non conveniens motion, 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 motion moot).6 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 motions have included information regarding each blown discovery practice. been granted in New Jersey mass torts.
plaintiff's alleged exposure to toxic sub- 3. Science Matters. Typically, the
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 dis- 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.7 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 cause of 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 Lone Pine 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 order requir- 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 case, 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 dismissal.9 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 Division's decision.10 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 conveniens 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 with expedited (typically) monthly case management NEW JERSEY LAWYER August 2011 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. If
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.
Externally, participate 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 your client.
sion threw out a multi-million dollar pleadings and/or discovery forms, and 6. Pick Your Battles Wisely. This is
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 The McDarby 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 Local Counsel. 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 McDarby were significant for mass tort vice 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 that the 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- McDarby, 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. Internally, pre-
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 August 2011 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 Id. at 378. 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. missed, 200 N.J. 282, 980 A.2d 487 This is not to suggest that you should ever stop advocating for your client's 12. Id. at 95, 949 A.2d 223. interests; rather, agree to disagree 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 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. granted, 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 hac vice, see Rule 1:21-2.
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 Id. at *3.
Morris LLP or its clients. Id. at *7.
See, e.g., Kurzke v. Nissan Motor Corp., 164 N.J. 159, 168 (2000) (generally, forum non conveniens should be made after moving party has made good faith effort to obtain discovery and can provide the court with a NEW JERSEY LAWYER August 2011

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

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