Administrative Office of the Courts

Administrative Office of the Courts Civil Practice Division NEW JERSEY MASS TORT (NON-ASBESTOS) RESOURCE BOOK Maintenance Log This maintenance log serves as the official repository for corrections, updates and new information created by the Civil Practice Division. Effective Date 11/14/2007 Manual Section Procedure for Requesting Designation of a Case as a Mass Tort for Centralized Management Appointment of Special Masters or Referral to Mediators Detail/Highlights update to reflect the promulgation of AOC Directive #1007 (which superseded former AOC Directive #11-03) “Mass Torts – Revised Guidelines and Criteria For Designation” (pp. 2, 3) update of the section relating to the appointment of special masters and mediators in mass tort cases to make it clear that such individuals may only be appointed with the advance approval of the Chief Justice (p. 12); inclusion of the revised provisions relating to termination of a mass tort designation (p. 24-25); inclusion of the new directive in the appendix (pp. A-2 to A-5) inclusion of the amended court rules relating to mediation in the appendix (pp. A-78 through A-86) Replacement Pages View Pages 11/14/2007 View Pages 11/14/2007 11/14/2007 11/14/2007 Termination of Centralized Management Procedure for Requesting Designation of a Case as a Mass Tort for Centralized Management Rule 1:40. Complementary Dispute Resolution Programs View Pages View Pages View Pages 2006 UPDATES 12/29/2006 12/29/2006 Mass Torts and Class Actions Appearance by New Jersey Licensed Counsel with Out-ofState Bona Fide Offices Maintenance of Counsel and Case Lists inclusion of a new section discussing the differences between mass torts and class actions (p. 2); incorporation of a section and form in the appendices relating to New Jersey licensed counsel with out-of-state offices (pp. 10 and A-92); reference to the use of spreadsheets to be completed by counsel pursuant to case management orders to enable the court to track case characteristics, including a sample form (pp. 10 and A-94); Reference to orders creating technology committees of liaison counsel (p. 11); Inclusion of the citation for the federal Multi-District Litigation Panel (MDL) and a description of the MDL in the section of coordination with other courts (p.13); clarification that the use of a master docket represents an administrative index of a particular mass tort rather than a separate case (p. 15); inclusion of a new section on motion filing fees (p. 16); inclusion of a new section concerning HIPAA-compliant authorizations, with the addition of a sample form to the appendices (pp. 21, A-90 and A-92); inclusion of a new section on commissions to take discovery (p. 21); update of the court rules relating to the civil mediation program (pp. A-78 and A-87); 12/29/2006 12/29/2006 12/29/2006 Appointment of counsel Coordination with other courts 12/29/2006 Pleadings, Master Files and the Master Docket Factual and Legal Issues HIPAA Compliant Authorization for Release of Medical Records Commissions to take Out-of-State depositions Rule 1:40 12/29/2006 12/29/2006 12/29/2006 12/29/2006 Mass Torts and Class Actions There is often great confusion regarding the term “mass tort” on the one hand and “class action” on the other, to the extent that the terms are commonly misused interchangeably. Mass torts are governed by R. 4:38A and are subject to a different procedure for their designation, as previously discussed. Class actions are governed by R. 4:32. In a typical R. 4:32 situation, a complaint may be filed on behalf of a small number of named parties alleging an injury and asserting a putative class action on behalf of themselves and similarly situated others whose identities are yet unknown. In a mass tort scenario, by contrast, separate complaints are brought by separate, allegedly injured parties and those matters if designated as a mass tort by the Supreme Court, will be coordinated and handled by a single judge, as also previously discussed. Although arguably containing many similar attributes, mass torts and class actions are different. This is not to say, however, that a portion of a large mass tort may not present a class action. For example, in the initial diet drug mass tort, the court certified a class action on behalf of asymptomatic users of diet drugs who required medical monitoring. Procedure for Requesting Designation of a Case as a Mass Tort for Centralized Management The Supreme Court in 2003 adopted and promulgated mass tort guidelines as provided for in Rule 4:38A. Those guidelines prescribe the procedures to be followed in seeking designation of a new mass tort for centralized management. In October 2007 the Court promulgated revised guidelines in Administrative Directive #10-07, with the revisions establishing a parallel process for seeking the termination of a previous mass tort designation. The 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, and assigned for centralized management in one county and by one judge as the court may designate. The Assignment Judge or attorney making such an application must give notice to all parties then involved in the case(s), advising that the application has been made and that a Notice to the Bar will appear in the legal newspapers and in the Mass Tort Information Center on the Judiciary’s Internet website providing information on where and within what time period comments on and objections to the application may be made. The Administrative Director of the Courts will present the application, along with a compilation of any comments and objections received, to the Supreme Court for its review and determination. 2 If the Supreme Court determines that the case(s) should be classified as a mass tort and assigned to a designated judge for centralized management and, in that judge’s discretion, trial, the Court will enter an Order so providing. The Administrative Director (or designee) will send the order to all Assignment Judges and Civil Presiding Judges, will publish it in the legal newspapers, and will post it in the Mass Tort Information Center on the Judiciary’s Internet website. See R. 4:38 and Administrative Directive #10-07, a copy of which appears in the appendix. Criteria to be Applied in Determining Whether Designation as a Mass Tort is Warranted In determining whether designation as a mass tort is warranted, the following factors, among others, will be considered: • whether the case(s) possess(es) all or many of the characteristics enumerated above; • whether there is a risk that centralization may unreasonably delay the progress, increase the expense of complicate the processing of any action, or otherwise prejudice a party; • whether centralized management is fair and convenient to the parties, witnesses and counsel; • whether there is a risk of duplicative and inconsistent rulings, orders or judgments if the cases are not managed in a coordinated fashion; • whether coordinated discovery would be advantageous; • whether the cases require specialized expertise and case processing as provided by the dedicated mass tort judge and staff; • whether centralization would result in the efficient utilization of judicial resources and the facilities and personnel of the court. 3 Role of Counsel The Manual for Complex Litigation, Fourth Edition, speaks in terms of liaison, lead and trial counsel. For reference: • • • “liaison” counsel primarily are administrative managers for each side, charged with sharing documents, orders and other information and with maintaining close communication with the court; “lead” counsel are the primary spokespeople for their side in formulating and presenting arguments and positions; and “trial” counsel, as the name implies, serve as the principal attorneys at trial. Id. at 24-25. Coordination of Counsel in Related Litigation If related litigation is pending in federal or other state courts, the judge should consider the feasibility of coordination among counsel in the various cases. It may be possible through consultation with other judges to bring about the designation of common committees or of counsel and to enter joint or parallel orders governing their function and compensation. Where this is not feasible, the judge may direct counsel to coordinate with the attorneys involved in the other cases to reduce duplication and potential conflicts and to further efficiency and economy through coordination and sharing of resources. In any event, it is desirable for the judges involved to exchange information and copies of orders that might affect proceedings in their courts. In approaching these matters, the court will want to consider the status of the respective actions (some may be close to trial while others are in their early stages), as well as the possibility that some later filed actions may have been filed in other courts by counsel seeking to gain a more prominent and lucrative role. See The Manual for Complex Litigation, Fourth Edition at 229-241. Appointment of Special Masters or Referral to Mediators Mass torts often require complex fact finding during pretrial, in preparation for trial, or in aid of settlement. Referrals to a neutral may at times be helpful, either by relieving the judge of time-consuming proceedings or by bringing special expertise to bear on specific issues in dispute. In addition to or in the absence of the full-time court employed masters, the mass tort judge has discretion, with the approval of the Chief Justice, to appoint special masters in accordance with R. 4:41 et seq. The judge may also decide to refer all or portions 12 Trifurcating or Further Dividing Trials The principle in dividing a case into three or even more pieces is the same as dividing it in two: trying to find a way to resolve critical, possibly dispositive issues without trying all issues, and thus shorten the time required in trial. The circumstance in which subdividing a trial into three or more stages might be appropriate, for example, is two hotly disputed issues or sets of facts, either one or both of which could result in disposing of the entire case without trying all the remaining issues. The issues separated out must be discrete and reasonably independent of the others. If there is too much intertwining of facts, time might be saved in the first trial, but the time spent in the second and third trials retrying the original, intertwined facts may result in more total trial time--and hence delay--than if the case had just been tried in its entirety from start to finish. Id. at 109. Use of Special Verdicts and Interrogatories Special verdicts can be very helpful in mass tort cases. In consolidated trials, in particular, special verdicts and interrogatories may be helpful to both the parties and the jurors to isolate key questions and issues. Id. at 110. Subsequent Related Actions The initial order of the Supreme Court denominating a particular category of cases as a mass tort and referring those cases to a particular county for centralized management may specify that subsequent related actions are to be transferred from the counties in which they are filed to the designated mass tort county and judge without further application to the Supreme Court. Severance The mass tort judge may thereafter review the cases designated as a mass tort and assigned for centralized management, and may sever and return to the original county(ies) of venue any that no longer warrant centralization. Termination of Centralized Management When the mass tort judge determines that centralized management is no longer necessary or appropriate under the circumstances, he or she will send a written report to the Administrative Director, with copies to the Assignment Judge, Civil Presiding Judge, Trial Court Administrator, Civil Division Manager of his or her vicinage and all counsel of record in any pending cases. The report shall provide details of matters resolved as well as the particulars concerning any unresolved matters including whether the latter will be 24 returned to their original county(ies) of venue or will continue to be handled until resolution by the mass tort judge. This report will be presented to the Supreme Court for review. Thereafter, a Notice to the Bar advising of the request and requesting comments or objections will be sent to all Assignment Judges and Civil Presiding Judges, will be published by the Administrative Director in the legal newspapers and will be posted on the Judiciary’s Internet website both in the Notices section and in the Mass Tort Information Center. Once the comment period has closed, the Administrative Director of the Courts will present the termination request, along with a compilation of any comments and objections received, to the Supreme Court for its review and determination. If the Supreme Court determines that the mass tort designation should be terminated, it may terminate the centralized management or determine that continuing the centralized management of any pending and future such cases by the designated mass tort judge is warranted. Following the Supreme Court’s determination, an appropriate order will be entered. The order will be sent to all Assignment Judges and Civil Presiding Judges, will be published in the legal newspapers and will be posted on the Judiciary’s Internet website both in the Notices section and in the Mass Tort Information Center. 25