Recent News

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.

New Jersey Lawsuit Reform Alliance takes issue with State Supreme Court

By João-Pierre S. Ruth and Marty Daks

February 20, 2009 — A ruling by the New Jersey Supreme Court on Thursday stirred outrage in the New Jersey Lawsuit Reform Alliance. The high court ruled in Bosland v. Warnock Dodge Inc. that consumers do not have to ask for a refund before filing suit against a merchant, a decision NJRLA said keeps the door open for frivolous lawsuits.

Marcus Rayner, executive director of NRLA, said the court's decision "flies in the face of common sense." He said the Consumer Fraud Act includes extraordinary remedies, including treble damages and attorneys' fees, for costumers who have been defrauded. "By not requiring a consumer let a merchant know that they have a complaint before filing suit under the Consumer Fraud Act eliminates the opportunity to weed out simple carelessness or errors," Rayner said.

NRLA, in Trenton, is an advocate for legal reform on behalf of businesses and organizations in the state. Full Story »

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 »

Tort reform would spark lagging local economy

Monday, June 23 2008
By Lawrence J. McQuillan and Gregg M. Edwards

The Dow Jones industrial average has fallen more than 1,500 points since last year. Bear Stearns has gone belly up. Every week talking heads point to a different blue-chip company supposedly teetering on the brink of financial ruin.

It seems as if things couldn't get worse for Wall Street and the broader economy. But if lawyers continue to abuse the tort system, things could deteriorate even further -- particularly in New York and New Jersey.

Tort law covers instances when one person infringes on the legally recognized rights of another, harming the other person. A tort award is supposed to fully compensate the victim for his injuries and damages.

But when people file frivolous tort suits, justice is not served. And citizens pay the price through higher insurance premiums, higher product prices and a stagnant economy. Monetary tort losses amount to $865 billion each year -- or 6.5 percent of the nation's gross domestic product. New York had $16 billion in losses in 2006, according to the new U.S. Tort Liability Index: 2008 Report. New Jersey suf fered $8 billion in tort losses that year. Full Story »

To the Trenches - The Tort War is Raging on

Sunday, June 22 2008
By Jonathan D. Glater

IN a Washington ballroom bedecked with flags honoring explorers who overcame oceans and mountains to pursue international trade, Thomas J. Donohue congratulated the assembled modern merchants - a group of executives, lobbyists and lawyers - for challenging a more mundane adversary.

"It took guts, bravery and vision to get behind what must have seemed like an insurmountable task - taking on the powerful trial bar," said Mr. Donohue, the chief executive of the United States Chamber of Commerce. "We have succeeded beyond our expectations."

There were plenty of reasons for self-congratulation at the dinner, held earlier this month to commemorate the 10th anniversary of the chamber's Institute for Legal Reform. Some of the best-known plaintiff-side lawyers in the country - Richard F. Scruggs, Melvyn I. Weiss and William S. Lerach - have all pleaded guilty to charges that they tried to manipulate the justice system. The very phrase "trial lawyer" has become associated with unadulterated greed; the Association of Trial Lawyers of America now calls itself the American Association for Justice.

But it is still too early to declare an end to the so-called tort wars, a decades-old conflict over the rules governing civil lawsuits. Corporate interests have won several potent victories, but trial lawyers continue to try to undo legislation restricting litigation and are pursuing new strategies of their own. Full Story »

State's Bad Tort System Hurts Business

Sunday, May 4, 2008
The Star-Ledger
By Marcus Rayner

There is a storm brewing in New Jersey's civil justice system. Employers across the state have been noticing the signs for some time, but it is now becoming unmistakable to many across the nation that New Jersey's tort system is crippling our state's economic competitiveness. New Jersey is consistently slipping in national rankings that compare state civil justice systems, and our employers are increasingly voicing concern because they know that a bad tort climate leads to abusive litigation that is bad for business and bad for consumers. Full Story »

Businesses Fear N.J. Courts

Thursday, April 24, 2008
Bergen Record

A national business group has given its verdict on New Jersey's legal climate, and it's not good.

A report released Wednesday by the U.S. Chamber of Commerce, a Washington, D.C.-based business lobby group, placed New Jersey 35th in a national survey of lawyers that judged state court systems on whether they are reasonable and balanced.

New Jersey placed 26th in a similar survey last year. It had never previously been ranked lower than 30th in the six years that the chamber has conducted the survey." Full Story »

The U.S. Chamber of Commerce Institute for Legal Reform releases the 2008 "Lawsuit Climate Report"

The U.S. Chamber of Commerce released its 2008 report on April 14th, which ranked NJ the 35th worst litigation climate in the nation, down from 26th in 2007. Of New Jersey, the report says "New Jersey's legal climate has dropped nine spots to number 35 in Lawsuit Climate 2008: Ranking the States. ‘New Jersey's legal system is headed in the wrong direction,’ said Tom Donohue, president and CEO of the U.S. Chamber of Commerce, ‘largely as a result of the plaintiff-friendly bias in a handful of trial courts, particularly in lawsuits aimed at pharmaceutical manufacturers.’ View the report »

The Pacific Research Institute (PRI) Ranks New Jersey #49 of the 50 States for its Civil Justice Climate

• U.S. Tort Liability Index: 2008 Report — A state by state ranking of tort costs and tort laws

"At the bottom of the barrel are Rhode Island, Pennsylvania, Montana, Illinois, New York, New Jersey, and, dead last, Florida."

Forbes Magazine: Atlantic County, New Jersey "One of the Worst Places to get Sued in America"

"The Worst Places to get Sued in America", www.Forbes.com

April 7, 2008
By William Pentland

"Products Liability Lawsuits Against Pharmaceutical Industry"

"In addition to a steady supply of exotic lawsuits, Atlantic County has made pharmaceutical litigation into a cottage industry. In the past two years, Merck has spent over $1 billion defending lawsuits related to Vioxx, the blockbuster painkiller pulled off the market over safety concerns in 2004. A few weeks ago, the company announced it would settle more than 15,000 Vioxx-related suits pending in Atlantic County, a hot-spot for mass tort litigation against the pharmaceutical industry." [Full Text]

NJLRA News Alert: The American Tort Reform Association Names Atlantic County, New Jersey a "Judicial Hellhole" for 2007

With today's release of its annual Judicial Hellholes® report, the American Tort Reform Foundation named Atlantic County, New Jersey as a "Hellhole" for the first time. Along with Clark County, Nevada, Atlantic County joins perennial Hellholes South Florida, Rio Grande Valley and Gulf Coast, Texas, Cook County, Illinois and West Virginia among the nation’s most unfair civil court jurisdictions.

The full report is available here.

According to ATRA, "Judicial Hellholes" are places where judges systematically apply laws and court procedures in an inequitable manner, generally against defendants in civil lawsuits. In this sixth annual report, ATRF shines the spotlight on six areas of the country that have developed a reputation for uneven justice.

Coming in at number six is our own Atlantic County, New Jersey:

6. ATLANTIC COUNTY, NEW JERSEY

Personal injury lawyers seem to have gained a monopoly in Atlantic County, a new addition to the Judicial Hellholes report. New Jersey is known for particularly plaintiff-friendly laws, admitting junk science in court and hosting lawsuits from all over the country against their state's own economic driver, the pharmaceutical industry. All these elements were on display in the Vioxx litigation in Atlantic County. There is also evidence that litigation fairness is deteriorating throughout the Garden State, leading to the formation of the New Jersey Lawsuit Reform Alliance in October 2007.

High profile issues such as class action abuse, pharmaceutical liability, asbestos lawsuits and extraordinary awards often dominate headlines. But being cited as a Judicial Hellhole is nothing to celebrate. Litigation abuse ultimately hurts the people living in these jurisdictions the most – by limiting economic growth and access to health care, among other things.

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