OUR WORK IN THE COURTS

“The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” -Alexander Hamilton in Federalist 78

Hamilton may be the hottest ticket on Broadway, but this founding father’s views on the judiciary do not hold up as well today as they did in the 1780s. The modern judiciary is a powerful branch that should be given as much attention as the legislature and the executive.

The New Jersey Civil Justice Institute systematically reviews every decision issued by our state’s Appellate Division courts and the New Jersey Supreme Court to determine what impact each case might have on the state’s civil justice system. When appropriate, we participate in cases as a friend of the court, briefing issues that are broader than those addressed by the parties.

 

Pending Matters NJCJI Is Involved In

Dugan v. TGI Friday’s, Inc., Supreme Court Docket No. 077567.

The plaintiffs in this class action claim a restaurant’s failure to clearly post prices in the menu on all drink items violates New Jersey’s Consumer Fraud Act (CFA) and Truth-in-Consumer Contract, Warranty, and Notice Act (TCCWNA). The New Jersey Civil Justice Institute filed an amicus curiae brief in this case because we have seen an explosion of TCCWNA class actions filed over the last few years, yet many of the terms in the statute remain unclear.

 

Kaufman v. Lumber Liquidators, Appellate Division Docket No. A-3278-14T1.

The New Jersey Civil Justice Institute has partnered with the United States Chamber of Commerce to file a friend of the court brief in this Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA) lawsuit.

 

Barbarino v. Paramus Ford, Appellate Division Docket No. A-000795-15-T3.

In this case, the New Jersey Civil Justice Institute is asking the court to give meaning to the term “aggrieved consumer” as used in New Jersey’s Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA). Right now, a lot of TCCWNA cases being brought against businesses who offer warranties or terms of service that say something like “void where prohibited” or “unless prohibited by law” without specifying if there are any terms void in New Jersey.

 

 

Decided

McCarrell v. Hoffmann-La Roche Inc. and Roche Laboratories Inc., ___ N.J. ___ (2017).

The New Jersey Civil Justice Institute filed a friend of the court brief in a long-running case over the acne medicine Accutane.  Instead of throwing out the case as time-barred like NJCJI suggested it do, the Court adopted a new test for determining what statute of limitations should apply in case brought by an out-of-state plaintiff.

 

Morgan v. Sanford Brown Inst., ___ N.J. ___ (2016).

On June 14, the New Jersey Supreme Court released its highly anticipated opinion in Morgan v. Sanford Brown Inst. The case has been closely watched because it is the first time the court has taken up an arbitration-related case since it began disfavoring arbitration during the 2013-14 court term.

 

Myska v. NJM, ___ N.J. ___ (2016).

The New Jersey Civil Justice Institute filed an amicus brief in the case Myska, et al. v. New Jersey Manufacturers Insurance Company. Just a few weeks after the filing deadline, we were notified that the New Jersey Supreme Court had dismissed the case as improvidently granted. The appellate division’s opinion, upholding dismissal of class allegations prior to discovery “when a court determines alleged claims do not properly lend themselves to class certification,” will stand.

 

Korrow v. Aaron’s, Inc., Civil Action No. 10-6317.

NJCJI has filed an amicus curiae brief in a case that would upset the existing class action system by allowing plaintiffs who suffered no actual injury to bring a class action suit against businesses, without allowing the business to bring counterclaims against members of the class. NJCJI’s brief was filed in support of defendant Aaron’s motion to decertify the class of plaintiffs bringing suit against it.

 

DeMarco v. Stoddard, et al., 223 N.J. 363 (2015).

In a 5-2 majority opinion, the New Jersey Supreme Court overturned an Appellate Division decision that had treated medical malpractice insurance like auto insurance, and reaffirmed the court’s commitment to applying the law as written.

 

Joel S. Lippman, M.D. v. Ethicon, Inc., 222 N.J. 362 (2015).

Can an employee performing activities as part of his or her core job functions, on that basis alone and without further conduct by the employee, seek whistleblower protection under the Conscientious Employee Protection Act (CEPA) if they are fired? The New Jersey Supreme Court said yes. This decision raises serious concerns for some employers. Framing internal, debate-based decision-making as whistleblowing that is actionable under CEPA changes the workplace dynamic.

 

U.S. Legal Services Group, L.P. v. Patricia Atalese 219 N.J. 430 (2014).

The New Jersey Civil Justice Institute filed a joint amicus brief with the U.S. Chamber of Commerce asking the United States Supreme Court to overturn a recent New Jersey Supreme Court ruling that places limits on arbitration agreements. The Supreme Court denied cert on June 8, 2015.

 

Wadeer v. New Jersey Manufacturers Insurance Co., 220 N.J. 591 (2015).

On February 18, 2015, the New Jersey Supreme Court issued its opinion in Wadeer and a companion case involving similar issues. The court resolved both cases on limited grounds that upheld pre-existing expectations while clarifying the law prospectively, as NJCJI urged it to do in its amicus brief. The court also directed the Civil Practice Committee to take up broader policy questions for further study.

 

Kendall v. Roche, 209 N.J. 173 (2012).

NJCJI joined with the Health Care Institute of New Jersey to argue to the New Jersey Supreme Court that an FDA-written, FDA-approved warning should be presumed adequate, and that presumption of adequacy should be dispositive, absent evidence of fraud.

 

In re Pelvic Mesh/Gynecare Litigation, Docket No. ATL-L-6341-10

Forbidding physicians who had even the most minimal contact with a plaintiff from serving as an expert for the defense greatly diminishes the pool of potential experts able and willing to testify in court, particularly in mass tort cases.

 

Allen v. V. and A. Brothers, Inc., 204 N.J. 38 (2011).

In an amicus curiae brief to the New Jersey Supreme Court, NJCJI argued that the Appellate Division’s decision improperly eliminated long-standing protections against liability granted to corporate employees and shareholders under common-law and the state’s Business Corporations Act. Disregarding the traditional tests for determining individual liability puts the personal assets of New Jersey employees, corporate officers, and shareholders at risk, which will discourage businesses from doing business in this state.

 

Blessing v. Johnson & Johnson, 206 N.J. 36 (2011).

As an amici, NJCJI argued that the lower courts correctly ruled that plaintiff’s claims for compensation for injuries were untimely under New Jersey’s statute of limitations. Under New Jersey’s discovery rule, the plaintiff should have reasonably known at the time of the injury that her injuries may have been caused by the product. The brief explains that the proper application of the discovery rule encourages prompt resolution of claims, which balances the need for redress of harms with the state’s interest in fostering a thriving pharmaceutical and medical device industry.

 

Voss v. Tranquilino, 206 N.J. 92 (2011).

NJCJI argued in an amicus curiae brief that the plain language of the No Fault Act clearly provides that that an impaired driver may not sue for recovery of his or her injuries.

 

Lee v. Carter-Reed, 203 N.J. 496 (2010).

NJCJI joined with the New Jersey Business & Industry Association (NJBIA) in a brief to the appellate court arguing the lower court was right to strictly enforce the predominance requirement when determining whether to certify a class of plaintiffs for a class action suit. The predominance requirement ensures all the plaintiffs’ complaints are addressed appropriately while preserving the defendant’s right to due-process.

 

Bosland v. Warnock Dodge, 197 N.J. 543 (2009).

NJCJI filed an amicus curiae brief arguing that opening the court to Consumer Fraud Act cases where no private problem solving has been attempted would create a perverse incentive system whereby the courts would become a first rather than last resort for consumers.

 

McCarrell v. Hoffmann-La Roche Inc. and Roche Laboratories Inc., Docket No. ATL-L-1359-03

NJCJI argued that the high court should take up this case in order to clarify the law on expert testimony by setting a single standard for admissibility, and reiterate the importance of the judiciary’s gatekeeping role.

 

Briest v. Wyeth, Docket No. MID-L-1045-06

NJCJI filed a joint amicus brief with NJBIA and the Health Care Institute of New Jersey arguing that the lower court misapplied the balancing test the New Jersey Supreme Court developed for choice-of-law decisions by placing too much weight on the fact that the defendants’ headquarters are in New Jersey. Emphasis on headquarter location puts New Jersey businesses at a disadvantage and could encourage forum shopping, particularly in class action suits.