New Jersey Lawsuit Reform Alliance

NJLRA Statement in Response to Roche’s Discontinuation of Accutane®

PRESS RELEASE: FOR IMMEDIATE RELEASE
June 26, 2009

TRENTON, N.J. — Marcus Rayner, executive director of the New Jersey Lawsuit Reform Alliance, a statewide, bipartisan group of individuals, businesses and organizations dedicated to improving the state's civil justice system and advocating for legal reform in the legislature and in the courts, today issued the following statement in reaction to Roche’s announcement that the company will immediately discontinue Accutane®, a treatment for severe acne:

“Thanks to an aggressive, self-interested campaign by personal injury lawyers, an important medical breakthrough deemed safe and effective by the U.S. Food and Drug Administration and that helped more than 13 million patients treat severe acne was voluntarily removed from the market today by the manufacturer. This leaves millions of patients around the world with fewer treatment options.

“New Jersey companies lead the world in discovering medical innovations like Accutane®, which have improved the quality of life of millions. But the high cost of frivolous lawsuits — like the Accutane® cases being tried in New Jersey — threatens medical progress.

“The trial bar shouldn’t leave patients out in the cold. NJLRA will continue to fight for common sense reforms that improve our courts and protect patients.”

NJLRA Executive Director Marcus Rayner's testimony to the NJ Supreme Court on proposed changes to NJ's Rules of Evidence

Tuesday, May 19, 2009

Good morning, your honors. My name is Marcus Rayner and I am executive director of the New Jersey Lawsuit Reform Alliance (NJLRA).

I want to first thank you for the opportunity to speak here today. Although you all may be somewhat familiar with NJLRA from the two amicus briefs we have filed with this Court, I do welcome the opportunity to introduce myself and discuss an issue of great importance to our membership, that of the standard for admitting expert testimony in our courts.

As you may know, NJLRA is a statewide, bipartisan group of over 70 corporations and organizations dedicated to improving the state's civil justice system and advocating for legal reform in the legislature and in the courts. NJLRA was formed because the business community in New Jersey awoke to the reality that an increasing number of lawsuits were — and are — pouring into our state, imposing enormous burdens on our underfunded courts, threatening our economy and risking jobs.

As this court observed in Rowe v. Hoffmann-LaRoche, Inc., our state's judicial system is awash in out-of-state mass tort plaintiffs. In 2008, McCarter & English performed a study for NJLRA that found that 93% of the plaintiffs in New Jersey's pharmaceutical mass torts come from outside of New Jersey. One of our founding members, Johnson & Johnson, recently performed a study and found that in 1999 nine percent of the lawsuits filed against their company were filed in NJ state courts. By 2007, that number had climbed to over 33%.

The reasons for this are many and complex. But our members believe that one reason is the perception that New Jersey's standard for the admissibility of expert testimony is extremely low, and that testimony which might be barred as unreliable in federal court and in the majority of state courts can often be admitted in our courts. As we shared with the Committee on the Rules of Evidence, today the plaintiffs' bar in New Jersey advertises our evidence standards as a reason to seek recovery in NJ courts over other venues. In 2004 the law firm Weitz & Luxenberg wrote to the plaintiffs' bar around the nation and urged them to file Vioxx claims in New Jersey Superior Court, claiming that NJ state court is a far better venue for numerous reasons. Chief among those reasons was the standards of the admissibility of scientific evidence.

Last year NJLRA, the New Jersey Defense Association and many of our members proposed to the Committee that trial courts be given clear procedural authority to evaluate the admissibility of expert testimony in a predictable and consistent manner in civil litigation. We proposed that N.J.R.E. 702 be amended to include standards consistent with the recent jurisprudence of this Court. We also proposed that N.J.R.E. 104 be amended to codify this Court's admonition in Kemp v. State and other cases that where a ruling on admissibility turns on factual issues, the trial court should conduct an evidentiary hearing to determine the reliability of an expert's testimony.

We believe that these changes are essential because today expert testimony is a fundamental component of one's success in the courtroom and if improperly admitted, it poses grave risks to the integrity of the trial process. In light of this our state's jurisprudence has long recognized the importance of allowing only reliable expert testimony. Indeed, New Jersey was one of the first jurisdictions to recognize the increasing importance of expert testimony in modern litigation, one of the first to stress the importance of judicial gate keeping, and one of the first to adopt a more structured multi-factor test for examining the validity of expert testimony.

The language of our evidence rules, however, has lagged behind the case law. Our rules regarding the admissibility and review of expert testimony have remained unchanged since 1991. In this same period the Federal Rules of Evidence, the Uniform Rules of Evidence, numerous state evidence rules, and our own jurisprudence have all advanced to reflect the increased importance and use of expert testimony. We believe the time is right for the incorporation of a meaningful standard of reliability in New Jersey Rule of Evidence 702.

We appreciate that the Committee recognized the need to revise the Rule, and that the Committee noted the importance of (a) explicitly articulating the standard for admissibility of expert testimony, (b) promoting consistency in the admission of expert testimony, and (c) promoting the convenience of busy trial judges and trial lawyers. However, we believe that the Committee's proposed amendment fails to achieve these goals. The Committee also declined to propose an amendment to rule 104 that would have underscored the need for trial judges to hold evidentiary hearings on expert testimony that is challenged on reliability grounds.

We respectfully submit that the Committee's proposed amendment to rule 702 misses the mark by suggesting that a trial court has unbounded discretion to decide unto itself what is "otherwise" reliable. Our members believe that New Jersey needs a rule that provides real guidance to the trial courts. Rather, the committee's proposed amendment would invite confusion and inconsistency — and bolster the perception in some quarters that New Jersey's bar to the admission of expert testimony is very low indeed.

At no time in recent history have the citizens and businesses of New Jersey faced the economic and competitive challenges they now confront. It is imperative that our judicial system not further stymie our state's businesses and citizens by permitting unreliable opinion testimony soundly rejected elsewhere.

We therefore respectfully request that this Court clarify the rules and procedures governing admissibility of expert testimony and provide the necessary guidance to courts as well as counsel that will establish comprehensive and comprehensible guidelines for resolution of expert testimony issues in the future.

NJLRA Statement on the U.S. Supreme Court's Decision in Wyeth v. Levine

March 4, 2009

"We are extremely disappointed in today's Supreme Court decision, which is certain to open the floodgates to new lawsuits around the country and here in New Jersey. This ruling sets the dangerous precedent that 50 state courts with different rules and standards are better equipped to make medical decisions than an expert, unbiased regulatory body.

"The damaging effects of this decision on consumers will be many. Bringing new pharmaceutical therapies to the market will become slower and more expensive. Innovation will decline, stifling the development of valuable new life-saving products.

"Ultimately, Americans will be stuck with fewer health care options and higher prices at the worst possible time. NJLRA will continue to monitor future court cases and fight legislation that would vastly expand liability and jeopardize innovation."

Statement in Response to the New Jersey Supreme Court's Consumer Fraud Act Ruling

February 20, 2009

Trenton, NJ — Marcus Rayner, Executive Director of the New Jersey Lawsuit Reform Alliance, today issued the following statement in reaction to the New Jersey Supreme Court's ruling in Bosland v. Warnock Dodge Inc., which resolved the question of whether consumers are required to ask merchants for a refund before filing a lawsuit under the Consumer Fraud Act:

"The Court's ruling in this case is yet another blow to common sense in New Jersey. This decision makes New Jersey employers an even bigger target for frivolous lawsuits, because now even the most minor business disputes that could be easily resolved will be escalated to our courts."

"This particular case involved a car dealer overcharging a customer for registration fees by about $40. Instead of asking the dealer for a refund, the customer went straight to the courtroom. New Jerseyans understand that encouraging consumers to sue as a first resort is a significant abuse of our legal system, especially when damages are minimal and there is a reasonable option for settlement."

"The victims of this decision will be consumers, who can look forward to higher prices as businesses pass on new liability costs. It's time we did more to protect consumers — not trial lawyers looking for new ways to fill their pocketbooks."

The New Jersey Lawsuit Reform Alliance (NJLRA) is a statewide, bipartisan group of businesses, individuals and organizations committed to improving the State's civil justice system by advocating for legal reforms in the legislature and in the courts. NJLRA believes a balanced civil justice system is critical to ensuring fair and open courts, maintaining and attracting jobs and fostering economic growth in New Jersey. NJLRA is the only organization in New Jersey dedicated exclusively to civil justice reform.

Statement on the Release of the American Tort Reform Foundation's Judicial Hellholes 2008/2009 Report

Trenton, NJ — Marcus Rayner, Executive Director of the New Jersey Lawsuit Reform Alliance, today issued the following statement in reaction to the release of the American Tort Reform Foundation's (ATRF) Judicial Hellholes 2008/2009 report, which ranked Atlantic County, New Jersey the fourth-worst judicial venue in the United States.

• Download ATRF's report (PDF)
• Download AFTR's news release (PDF)
• Listen to NJLRA's audio news release (MP3)

"This is a dubious distinction for New Jersey, and one that we could certainly have done without. This report should serve as a wake-up call to policymakers who want to take our state in the wrong direction by passing proposals that would invite even more lawsuits and make our courts less fair.

"Our courts do a disservice to all of our citizens when they allow excessive awards for defendants from outside New Jersey. Our laws do not serve our residents when they attract such lawsuits.

"The ATRF report confirms that our state's civil justice system is headed in the wrong direction — and at the worst possible time. It's no secret that a bad legal climate is bad for business and bad for consumers. Further impeding economic growth during this unprecedented downturn is the last thing New Jersey should do.

"Every New Jersey resident should be concerned about the disturbing trend highlighted in this report. Working families and our economy stand to lose when we put the interests of trial lawyers ahead of taxpayers."

Background
Judicial hellholes are places throughout the United States where the civil justice system is radically out of balance. In these areas, judges systematically apply laws and court procedures in an inequitable manner, generally against defendants in civil lawsuits. This year's ATRF report also drew attention to large personal injury awards in Monmouth County and a New Jersey Superior Court — Appellate Division's decision to hold restaurants and bars responsible for accidents caused by drunken patrons, even if those patrons didn't consume alcohol while at their establishments. A copy of the ATRF Judicial Hellholes 2008/2009 report is available at www.atra.org.

Finding A Fix For New Jersey's Legal Climate Woes

July 22, 2008

This month, NJLRA invited Dr. Lawrence McQuillan of the Pacific Research Institute to New Jersey to discuss his report, the U.S. Tort Liability Index: 2008 Report, which ranked NJ 49th of the 50 states for our civil justice climatlle. In the attached video, Dr. McQuillan discussed why New Jersey ranks so poorly and he offers some thoughts on how, working with NJLRA, we can address this important issue. View our presentation video »

 

Directorship Magazine and the American Justice Partnership release annual boardroom guide to state litigation climates

NJ Falls to 35th
Read the full report here.

Of New Jersey Steven Hantler, the author, writes:

"New Jersey's liability climate continues to deteriorate, and the state ranks next to last for monetary tort losses and medical malpractice losses. PRI's 2008 report also ranks the state next to last in terms of liability climate "output," reflecting the state's longterm pro-plaintiff orientation.

Governor Jon Corzine this year signed a qui tam bill deputizing private attorneys to sue on behalf of the state on Medicaid fraud. On a positive note, he vetoed a bill that would have expanded the types of damages in wrongful death claims to include mental anguish, emotional pain, and loss of companionship.

Aggressive efforts by antireform lawmakers threaten to undo past reforms. There is an activist majority on the state Supreme Court. Attorney General Anne Milgram is neutral to activist."

A Texas Turnaround: The Impact of Lawsuit Reform on Business Activity in the Lone Star State, April 2008

Texas has for years been pointed to as an example of a civil justice reform success story. But a new report by the Perryman Group actually documents the positive economic growth that Texas has experienced as a direct result of the reforms that have been enacted there since 1995.

The report concludes that 8.5% of Texas' economic growth since 1995 is the result of lawsuit reforms. Other gains that they attribute to these reforms include:

• $112.5 billion increase in annual spending
• $51.2 billion increase in annual output — goods and services produced in Texas
• $2.6 billion increase in annual state tax revenue
• $469.9 million in annual benefits from safer products
• $15.2 billion in annual net benefits of enhanced innovation
• 499,000 permanent jobs
• 430,000 additional Texans have health insurance today as a result of the medical liability reforms

There are clear lessons to be learned from this report for New Jersey. Read the complete study here and share it with your colleagues. Read full article »

top