New Jersey's "Mass Tort Resource Book"

Thursday, February 1, 2007 - 01:00

In 2003, the New Jersey Supreme Court announced the adoption of New Jersey Court Rule 4:38A which, in conjunction with AOC Directive 11-03, established a procedure for requesting mass tort treatment for New Jersey litigation claims.

In July 2005 the New Jersey Judiciary published a "Mass Tort Resource Book" ("Resource Book") which addresses mass tort issues from designation through resolution. The principal beneficiaries of this 22-page brochure (which is available at the Court's Mass Tort Information Website at www.judiciary. state.nj.us/mass-tort/) will undoubtedly be the mass tort counsel who have previously had few resources available to them to explain the intricacies of how mass tort cases are likely to be handled by New Jersey courts.

The Resource Book was prepared by the designated mass tort judges and the Civil Practice Division of the Administrative Offices of the Courts and has been reviewed and endorsed by the Conference of Civil Presiding Judges. As such, while it does not have the force of law, it promises to be a very influential document.

The Resource Book is divided into thirty-seven separate sections addressing each of the stages of mass tort litigation. The decision as to whether and where to provide for centralized management; the initial coordination steps; the administration of the case through discovery; and the trial and termination of coordinated management techniques are all considered.

With respect to the designation of a case as a mass tort, the Resource Book first defines mass torts by reference to the classes of cases that have thus far been determined to be mass torts by the New Jersey courts. The characteristics of mass torts, including the number of parties involved, common issues of law or fact, geographic distribution of parties, common injuries or damages, value interdependence of the claims, and remoteness between the court and the decision-makers in the litigation are specifically identified.

The procedure to be used for seeking designation of a case as a new mass tort for centralized management is addressed by reiterating the provisions of AOC Directive 11-03 that "[t]he Assignment Judge of any vicinage or an attorney involved in a case or cases that may constitute a mass tort may apply to the Supreme Court, through the Administrative Director of the Courts, to have the case(s) classified as a mass tort."

While neither the Resource Book nor Directive 11-03 specifically prohibit parties other than an assignment judge or attorneys involved in the cases from initiating the request for mass tort treatment, it is clear that this is the preferred procedure. It can be anticipated that in circumstances where other parties - such as judges involved in particular cases or special interest groups not involved in any particular litigation - present requests for mass tort treatment, the likelihood of coordination of such cases will be significantly reduced.

Interestingly, in identifying the "Criteria to be Applied in Determining Whether Designation as a Mass Tort is Warranted," the Resource Book differs slightly from the AOC Directive. Both the Resource Book and the Directive consider whether the cases possess identified mass tort characteristics; whether centralization will delay the case or prejudice a party; the convenience of parties, witnesses, and counsel; the risk of inconsistent rulings; the value of coordinated discovery; the need for specialized judicial expertise; and the efficient utilization of judicial resources. The Resource Book, however, does not mention two additional criteria which are identified in the Directive. Thus, whether "issues of insurance, limits on assets and potential bankruptcy can be best addressed in a coordinated proceeding," and whether there are "related matters pending in federal court or in other state courts that require coordination with a single New Jersey judge," are not identified as mass tort designation criteria in the Resource Book. Whether the elimination of these factors from the Resource Book can be attributed to oversight, a change in judicial attitude toward these factors between the time that the Directive and the Resource Book were published, or other factors, is unclear.

This presents something of a problem in that one difficulty with the designation of mass torts in New Jersey is the lack of any explanation by the Court as to why a particular claim was or was not designated as a mass tort. Thus, to date, the Court has failed to provide a discussion and description of the application of its mass tort designation criteria to particular facts. Supreme Court opinions explaining why claims with respect to products or drugs such as lead paint or Accutane were designated as a mass tort, while claims with respect to vinyl chloride or Embrel were not, would be extremely helpful to practitioners in deciding how to advocate for or against mass tort designation in any particular case.

While this is a problem which extends beyond the Resource Book, the fact that the Resource Book and the Administrative Office of the Court's Mass Tort Directive contain different criteria for determining whether designation as a mass tort is warranted is further confirmation that the Supreme Court should be more forthcoming in explaining its reasoning in mass tort designation decisions.

After identifying the mass tort designation criteria, the Resource Book briefly addresses the selection of the site for centralization and the impact on related actions. The manual makes it clear that issues of fairness to the parties and judicial caseload and economy will be the determining factors in the Supreme Court's selection of the site for the action.

The Resource Book then moves on to address the processing of the coordinated litigation. Suggestions are made for the Court's Initial Case Management Order. Significantly, the Resource Book also explicitly notes that "[u]pon review of the cases designated as a mass tort and assigned for centralized management, the mass tort judge may sever and return to the original county(ies) of venue any that do not appear to warrant centralization."

The utilization of early meetings between the Court and counsel is encouraged, although the Resource Book accepts that different judges will choose to accomplish this task on a formal or informal basis.

With respect to ongoing case management, the Resource Book provides sample forms in its Appendix, and notes that "[t]he initial case management order should, among other things, help organize the cases and counsel, preserve evidence, set priorities for pretrial pleadings and other activity, defer unnecessary pleadings, preliminarily identify legal and factual issues, outline preliminary discovery and motions, and direct counsel to coordinate the implementation of the order." It encourages the Court to take into account the proposals of counsel and sets forth an extensive list of provisions contained in typical case management orders entered in various mass torts.

The procedure for pro hac vice admission is specifically set forth, and suggestions are made to assist the mass tort judge in the preparation of "a plan for the handling of the litigation."

Suggestions are made for the organization of counsel in a manner that facilitates the expeditious resolution of the matter, and the Resource Book also notes that "[i]f related litigation is pending in federal or other state courts, the judge should consider the feasibility of coordination among counsel in the various cases."

The Resource Book then considers issues with unique impacts in the mass tort area. For example, specific mention is made of the mass tort judge's "discretion, with the approval of the Chief Justice, to appoint special masters," and their ability to influence settlement. In that regard, the Resource Book notes "[i]n general, organization of cases along individual plaintiff lines can be expected to lead to individual settlements, and organization along aggregated lines can be expected to produce aggregated settlements." Without doing so explicitly, the Resource Book appears to invite mass tort judges to take this settlement factor into account as they address the initial organizational efforts in the case.

The complex nature of coordinated mass torts is addressed through suggestions for dealing with additional parties who may be added to the cases and the ongoing coordination with other courts where related cases may be pending. Organizationally, the creation of master pleadings files is encouraged and "deeming motions" are suggested as a method of ensuring that motions do not need to be decided more than once. In addition, telephone conferences are encouraged, and the early creation of a statement identifying factual and legal issues is suggested.

One of the most valuable aspects of the Resource Book is the relatively extensive consideration given to discovery issues.

The potentially disruptive effect of privilege issues is identified, and the Resource Book suggests early consideration of both privilege and confidentiality issues. Creation of a judicially-sanctioned discovery plan is called for, and the Resource Book encourages the Court to address a wide variety of discovery issues ranging from time limits and schedules to the use of "conference depositions."

Practical suggestions are provided to limit the burdens of depositions and avoid duplicative interrogatories and document production requests - as well as explicit encouragement of establishing an early deadline for the presentation of expert witnesses' "final opinions."

Significantly, the Resource Book notes that "[i]n cases that involve a massive number of claims for damages for similar injuries, sampling techniques can streamline discovery relating to individual plaintiffs' activities and injuries. Sampling and surveying can be used to obtain information useful both for settlement and for bellwether trials of the sample cases or for a class trial." In specifically acknowledging the potential use of such techniques, the Resource Book is encouraging New Jersey state courts to venture into this area in a manner consistent with other mass tort coordination resources such as the Manual for Complex Litigation (4th Ed.).

Finally, the Resource Book addresses trial issues. Setting firm trial dates is encouraged. It is recognized, however, that "in mass tort cases involving large numbers of plaintiffs, a single trial of all issues before a single jury may be impractical." Thus, suggestions are made for a series of individual or consolidated trials, common issues trials, bellwether trials, and other procedures.

The final matter addressed in the Resource Book is the termination of coordinated management when the mass tort judge determines that centralized management is no longer necessary or appropriate.

Appendices are provided which include the applicable Court Rules and AOC Directives, as well as sample case management orders, a sample short form complaint and patient profile and materials relating to alternative dispute resolution.

Conclusion

Over the years, the New Jersey Supreme Court has been very hesitant to disclose its thinking with respect to what types of cases should receive mass tort treatment and how those cases should be handled. See , Dore, "Reforming the New Jersey Supreme Court's Procedures for Consolidating Mass Tort Litigation: A Proposal for Disclosing the Rules of the Game," 55 Rutgers L. Rev. 591 (2003). The Mass Tort Resource Book is a significant departure from this prior reticence, and it is a resource that will be valuable to practitioners and to the entire mass tort designation and coordination process.

Michael Dore is a Director of Lowenstein Sandler, PC, Roseland, New Jersey, where he chairs the firm's Products and Specialty Torts Group. He has represented defendants in a number of the mass tort cases referred to in this article and is the author of Thomson/West's four-volume Law of Toxic Torts. An earlier version of this article appears in the December 11, 2006 issue of The New Jersey Law Journal. The opinions expressed in this article are exclusively the author's and do not represent the views of Lowenstein Sandler, its clients or any other party.

Please email the author at mdore@lowenstein.com with questions about this article.