The New Jersey Mass Tort Designation Process Who Decides What Kind of Cases Go Where? by Michael Dore In 2003, the Supreme Court announced a process In conjunction with this rule, mass tort guidelines were issued by the admin- pursuant to which mass tort claims filed in istrative director of the courts. These New Jersey state courts could be coordinated and guidelines set forth a procedure for managed in unified statewide proceedings. requesting mass tort designation, which permits the assignment judge of any vic- inage or an attorney involved in a case to S ince the initiation of this In addition, in 1999 the proposal of a apply to the Supreme Court to have cases process, the Court has iden- blue ribbon committee for the forma- classified as a mass tort, and assigned to a tified and refined the rules tion of a single mass tort court in Mid- designated judge for centralized manage- for coordinated mass tort dlesex County was rejected by the ment. Notice must be provided to all par- cases. This article will dis- Supreme Court, and academic commen- ties then involved in the actions, and a cuss the process of seeking tators began to complain that “the notice to the bar must be published in mass tort coordination in New Jersey, secrecy of the mass tort consolidation legal newspapers and on the Judiciary’s and the administration of those cases. It process left the state with the appear- website. The Court accepts comments on will also examine the extent to which ance of an unhealthy ‘back room’ judi- and objections to the application for a certain mass tort coordination proce- cial process.” 1 defined time period. dures continue to conceal, rather than In October 2003, however, the The guidelines also identify the crite- facilitate, the process of deciding Supreme Court formally promulgated ria considered with respect to the desig- whether, and where, to coordinate par- Rule 4:38A to provide for the centralized nation of mass torts. In determining ticular claims. management of mass torts in New Jer- whether designation as a mass tort is sey. warranted, the Court indicated that it The Mass Tort Designation Process This rule provides that: would consider whether the case(s) pos- Prior to 2003, there had been a fair sesses the following characteristics: amount of controversy in New Jersey The Supreme Court may designate a surrounding how courts should handle case or category of cases as a mass tort • It involves large numbers of parties; mass tort claims. The Supreme Court to receive centralized management in • It involves many claims with com- had centralized the management of accordance with criteria and proce- mon, recurrent issues of law and fact numerous matters, including latex dures promulgated by the administra- that are associated with a single prod- gloves, Rezulin, Propulsid, Ciba-Geigy, tive Director of the Courts upon uct, mass disaster, or complex envi- diet drugs, and Vioxx. While these coor- approval by the Court. Promulgation of ronmental or toxic tort; dination decisions were clearly rational the criteria and procedures will include • There is geographical dispersement and appropriate, there was no disclosure posting in the Mass Tort Information of parties; of the process that had been used by the Center on the Judiciary’s Internet web- • There is a high degree of commonal- Court to decide on the coordinated site (www.judiciary.state.nj. us). ity of injury or damages among treatment of these matters. plaintiffs; 12 N EW J ERSEY L AWYER | August 2011 WWW . NJSBA . COM
• There is a value interdependence July 2005 the New Jersey Judiciary pub- “issues of insurance, limits on assets and between different claims; that is, the lished a mass tort resource book. This potential bankruptcy can be best perceived strength or weakness of the 25-page brochure (which was updated addressed in a coordinated proceeding,” causation and liability aspects of the in 2007 and is available at the Court’s and whether there are “related matters case(s) are often dependent upon the mass tort information webpage at pending in federal court or in other success or failure of similar lawsuits www.judiciary.state.nj.us/mass-tort/) state courts that require coordination in other jurisdictions. includes an extremely useful appendix with a single New Jersey judge,” are not of mass tort administrative and substan- identified as mass tort designation crite- Other factors used to evaluate coordi- tive materials. The resource book and its ria in the resource book. Whether the nation requests include: appendices address mass tort issues from elimination of these factors from the • There is a degree of remoteness designation through resolution. The resource book can be attributed to over- between the court and actual deci- resource book essentially explains to sight, a change in judicial attitude sion-makers in the litigation; that is, practitioners how mass tort coordina- toward these factors between the time even the simplest of decisions may be tion decisions are made, how these cases the directive and the resource book were required to pass through layers of are administered, and the process the published, or other factors, is unclear. local, regional, national, general and Court will use to send these cases to one Issues Raised by the Mass Tort house counsel; of the three mass tort venues that have Designation Process • Whether there is a risk that central- evolved in Atlantic, Bergen and Middle- ization may unreasonably delay the sex counties. This inconsistency between the guid- progress, increase the expense, or The resource book notes that it is ance and the resource book is a symp- complicate the processing of any “intended to provide procedural opera- tom of a larger problem. One remaining action, or otherwise prejudice a tional guidance to New Jersey judges difficulty with the administration of party; and Judiciary staff in the management mass torts in New Jersey is the lack of • Whether centralized management is of cases within their area of responsi- any comprehensive explanation by the fair and convenient to the parties, bility.” Since New Jersey counsel previ- Supreme Court of why a particular claim witnesses and counsel; ously had few resources available to was or was not designated as a mass tort, • Whether there is a risk of duplicative them to explain the intricacies of how and precisely who participated in the and inconsistent rulings, orders or mass tort cases are to be handled by the decision to send cases to particular mass judgments if the cases are not man- state courts, this book is an extremely tort venues. aged in a coordinated fashion; useful tool for all New Jersey mass tort Thus, while the Court may have • Whether coordinated discovery practitioners. responded well in 2003 to the criticism would be advantageous; Interestingly, in identifying the crite- of its private and unstructured identifi- • Whether the cases require specialized ria to be applied in determining cation and designation of mass torts, it expertise and case processing as pro- whether designation as a mass tort is may not have done as well as other judi- vided by the dedicated mass tort warranted, the resource book differs cial coordinating bodies (such as the judge and staff; slightly from the mass tort guidance Judicial Panel on Multidistrict Litiga- • Whether centralization would result document. Both the resource book and tion) in providing an open disclosure of in the efficient utilization of judicial the guidance consider whether the cases the application of its mass tort designa- resources and the facilities and per- possess identified mass tort characteris- tion criteria to particular factual situa- sonnel of the court; tics; whether centralization will delay tions. Clearly, Supreme Court opinions • Whether issues of insurance, limits the case or prejudice a party; the con- explaining why claims with respect to on assets and potential bankruptcy venience of parties, witnesses and coun- products or drugs such as lead paint or can be best addressed in coordinated sel; the risk of inconsistent rulings; the Accutane were designated as mass torts, proceedings; and value of coordinated discovery; the while claims with respect to vinyl chlo- • Whether there are related matters need for specialized judicial expertise; ride or Embrel were not, would be pending in federal court or in other and the efficient utilization of judicial extremely helpful to practitioners in state courts that require coordination resources. this area. with a single New Jersey judge. The resource book, however, does not Moreover, Rule 4:38a clearly provides mention two additional criteria identi- that the Supreme Court is the entity Independent of these guidelines, in fied in the directive. Thus, whether that controls the mass tort designation 13 N EW J ERSEY L AWYER | August 2011 WWW . NJSBA . COM
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