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NEW YORK JUNI DECISION
ON CAUSATION
IN TOXIC TORT CASES
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In the case of
Juni v. Ford Motor Company
, the New York Court of Appeals in November 2018 issued a one-paragraph memorandum affirming a trial court decision to set aside an $11 million asbestos jury verdict and, in doing so, tacitly reaffirmed the causation principles of
Parker v. Mobil Oil
, 7 NY3d 434 (2006)
.
This effectively negates the so-called "single fiber" approach to disease causation that plaintiffs rely upon in asbestos litigation and which approach has been rejected in other jurisdictions. The New York Court of Appeals in
Juni
succinctly stated that “viewing the evidence in the light most favorable to plaintiffs, the evidence was insufficient as a matter of law to establish that respondent Ford Motor Company’s conduct was a proximate cause of the decedent’s injuries pursuant to the standards set forth in
Parker v. Mobil Oil
.
”
Those standards set forth in
Parker
recognize that it is “well-established that an opinion on causation should set forth a plaintiff's exposure to a toxin, that the toxin is capable of causing the particular illness (general causation), and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation)”.
Parker
at 448.
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NEW JERSEY’S HIGHEST COURT APPLIES NEW JERSEY LAW IN MULTI-COUNTY ACCUTANE LITIGATION
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In
Re: Accutane Litigation
(A-26/27-17)(079933) (Decided October 3, 2018), the New Jersey Supreme Court applied New Jersey’s choice-of-law rules to determine whether New Jersey’s Products Liability Act (PLA) exclusively applied to this multi-county litigation involving 532 cases against Hoffman-La Roche, Inc. and Roche Laboratories, Inc. (“Roche”), 18 New Jersey residents and 514 out-of-state residents.
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The Court determined that although New Jersey’s rebuttable presumption of adequacy which specifically attaches to FDA-approved warnings, sets New Jersey law apart from other states, the Court acknowledged that defendant-by-defendant choice of law analysis is not feasible in every case, and the Court has discretion to apply the law of a single state to the entire matter based upon the most-significant relationship test, each state’s contacts, and choice-law-principles for consistent, fair, and reliable outcomes.
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ARBITRATION CLAUSES MUST SPECIFY THE FORUM IN NEW JERSEY
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The New Jersey Appellate Division, in an employment law discrimination matter, has ruled that in order for an arbitration clause to be enforceable, the arbitration clause must specify a forum such as American Arbitration Association or the Judicial Arbitration and Mediation Services. Adopting the rationale in the 2014 New Jersey Supreme Court decision of
Atalese v. U.S. Legal Servs. Grp., L.P.
, 219 N.J. 430 (2014), the appellate panel in
Marilyn Flanzman v. Jenny Craig Inc. et. al
., A-2580-17T1, ruled that “it was not that the 'designated' arbitral forum was 'unavailable,' but rather that there was no designated arbitral forum or general process selected by the parties in the first place”, as such, “the parties did not reach any agreement at all” on arbitration.
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Notably, this decision addresses failure to specify a forum, not the failure to specify a specific arbitrator within the forum . In fact, the appellate court noted that if a specific arbitrator is not available, as long as the forum is identified, the parties "could have arguably petitioned the court to make such a selection" as to the specific arbitrator. This case will likely be appealed to the New Jersey Supreme Court.
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NEW JERSEY HAS ADOPTED
NEW COURT RULES REGARDING AFFIDAVITS OF MERIT AND EXPERTS
IN MEDICAL MALPRACTICE CASES
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Rule
4:5B-4 provides for the scheduling of a case management conference (or Ferreira conference) within ninety (90) days of the filing date of the first answer to address the sufficiency of an affidavit of merit (“AOM”) provided pursuant to
N.J.S.A
. §2A:53A-27 and the qualifications of an affiant or other designated medical expert pursuant to the Patients First Act (“PFA”),
N.J.S.A
. §2A:53A-41. The plaintiff must supply a reasonably current CV of the affiant no less than thirty (30) days before the conference; and the defendant must serve the court and all parties with specific written objections, if any, to the AOM no less than fifteen (15) days before the conference. The preceding applies to all types of professional malpractice cases, not just medical malpractice actions.
The new rule requires that an order be prepared addressing: (1) the sufficiency of the AOM; (2) whether there are any disputes regarding the AOM; and (3) in medical malpractice actions, the sufficiency of the qualifications of the affiant or medical expert under the PFA. Those defendants who are joined as parties after the conference are entitled to receipt of an AOM and CV within thirty (30) days of the joinder. An analogous 15-day deadline applies to objections to the AOM. If no objection is raised, the parties must submit a consent order to the court within sixty (60) days of service of the AOM and CV; otherwise, the onus is on the added defendant to “promptly” file a motion.
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HKMP OBTAINS SUMMARY JUDGMENT IN WRONGFUL DEATH CASE
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HKMP Associate Eric J. Koplowitz obtained summary judgment for the firm’s client, an ambulette company, in a wrongful death case venued in Orange County, New York. The decedent’s family alleged the decedent sustained serious neck injuries while being transported by the client from an adult daycare facility. The decedent underwent a fusion surgery and passed away seventeen months after the alleged accident. The client’s driver testified that nothing out of the ordinary occurred during the ride from the daycare facility to the decedent’s home. In contrast, the decedent’s daughter testified the decedent was in pain and unable to move when she arrived from the client’s ambulette. The decedent passed away without explaining how she sustained her injuries.
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MODEL JURY CHARGE IN NEW JERSEY REGARDING APPORTIONMENT OF FAULT
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On October 9, 2018, the New Jersey Supreme Court Committee on Model Civil Jury Charges approved the revision of Model Civil Jury Charge 7.16 (Apportionment) and 7.31 (Comparative Negligence /Ultimate Outcome) to replace references to terms that would suggest to a jury that fault should be allotted only to a party in the case. The terms now used (“individual” or “entity”) subject to allocation, comparative negligence, and now fault (liability for non-negligent conduct), so that apportionment of fault is no longer limited to parties in the case.
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UPDATE ON THE NEW JERSEY ROWE ASBESTOS CASE
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In November 2018, the New Jersey Supreme Court granted certiorari in the case of
Rowe v. Bell & Gossett Co
. to consider the proofs necessary to establish cross-claims against settled co-defendants under the state’s Joint Tortfeasors Contribution Law and the New Jersey Comparative Negligence Act. The New Jersey Supreme Court will now review an Appellate Division ruling that the trial judge presiding over the case improperly allowed evidence regarding settled companies for the jury to allocate liability as between the trial defendant and the settled parties. Notably, at trial, none of the settled defendants produced witnesses and, as such, the court deemed them unavailable and admitted certified interrogatory answers and deposition excerpts that had been served other asbestos matters including out-of-state matters.
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