Multicounty Litigation Order in New Jersey Provides No Guidance to Practitioners

Earlier this year, we wrote about a new multicounty litigation application submitted by plaintiffs seeking centralization before New Jersey Judge Rachelle Harz. We posited that, although none of the cases that were subject to that application had been filed in Bergen County, the plaintiffs’ request that the cases be assigned to Judge Harz in Bergen County, as opposed to being assigned to one of the other designated MCL judges in Middlesex or Atlantic Counties, suggested that the plaintiffs may have a preference for Judge Harz.…
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New Multicounty Litigation Application in New Jersey

As many readers know, and as we have discussed in the past, New Jersey has an established program for centralization and coordinated management of cases that is similar in idea to the multidistrict litigation (MDL) procedures that exist at the federal level. Under the New Jersey program, which commonly goes by the acronym “MCL” for “multicounty litigation” because cases can be drawn from all trial-level courts in New Jersey across all counties and centralized, an application can be submitted to the New Jersey Supreme Court…
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Lack of Agreement to Arbitrate Dooms Bid to Compel Arbitration

For many companies and businesses, arbitration is a preferred option to resolve disputes instead of litigation. As a result, arbitration clauses and provisions are often included in contracts, and there are a variety of rules that govern whether and to what extent those clauses can be enforced against a plaintiff seeking to file a claim in court instead of proceeding with an arbitration. It may seem obvious, but a recent case from New Jersey reminds us of the importance of an agreement to arbitrate in…
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Mixed Bag in New Jersey Medical Device Preemption Opinion

On May 4, 2021, New Jersey Superior Court Judge Rachelle Harz issued an opinion that may be of interest to readers who follow medical device preemption decisions. Judge Harz, who oversees the centralized multicounty litigation in New Jersey state court involving product liability claims with respect to Allergan’s Biocell line of textured breast implants and tissue expanders, agreed with the defendants in dismissing some of the claims asserted in the plaintiffs’ master long form complaint on preemption grounds, but disagreed and declined to dismiss other…
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First Circuit Agrees Pharmacists Provide Services, Not Sell Goods

When a plaintiff sues a pharmacist for dispensing and selling a prescribed medication that allegedly causes an injury, is the claim based on the negligent provision of services or on the sale of a defective product? Most courts agree that it is the former, and recently the U.S. Court of Appeals for the First Circuit, while recognizing that this specific issue had not yet been addressed by the appellate courts in Massachusetts, joined the majority of courts in holding that view. The case arose out…
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Update on Recent Decisions from New Jersey’s Pelvic Mesh and Ovarian Cancer/Talc Litigation

We wanted to update our readers on two decisions from the New Jersey Appellate Division that were the subject of recent posts. In March, we reported on an opinion from the Appellate Division that came out of the centralized pelvic mesh litigation pending in Bergen County, New Jersey reversing the verdicts in favor of plaintiffs in two cases because the trial courts had precluded the defendants from introducing key evidence relating to FDA clearance of the products at issue under Section 510(k). Following the issuance…
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New Florida Law Affords Very Broad Civil COVID-19 Immunity

The state of Florida enacted broad COVID-19 civil immunity protections in a bill signed by the Governor on March 29, 2021. The immunities provided appear to be among the broadest in the country to date. They come at a time that some states are considering repealing already enacted immunity statutes. And, at a time when New York just repealed its immunity statute as to the nursing home industry. An extensive “WHEREAS” preamble reviews the history and severity of the COVOD-19 crisis. It also cites to…
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New York State Legislature Passes Treatment Protection Act Repealing Immunity to Nursing Homes and Hospitals Against COVID Malpractice Lawsuits

On Wednesday March 24, 2021, the New York State Senate unanimously passed legislation that repeals protections for nursing homes and hospitals against liability for COVID malpractice lawsuits. The bill had previously passed the New York State Assembly.  The NY Senate press release is available here. As discussed in previous posts, New York’s “Emergency Disaster Treatment Protection Act” went into effect with the New York State budget in April 2020. In August 2020, we reported that legislation had been passed that rolled back legal…
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Animal Testing Bans and Product Liability Lawsuits

On March 16, 2021, Virginia became the fourth state—following California, Nevada, and Illinois—to enact legislation banning the testing of cosmetics on animals and the sale of cosmetics that have been tested on animals. Similar legislation may follow in other states, and Representative Don Beyer of Virginia has indicated he intends to reintroduce federal legislation to establish this ban nationwide. From a defense perspective, whenever a cosmetic product company is sued in a product liability lawsuit, it is helpful to have a strong record of safety…
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Two New Jersey Pelvic Mesh Verdicts Overturned

While Covid-19 continues to be a dominant national topic, including with the recent approval of the Johnson & Johnson vaccine, there are other developments of note for the life sciences industry. One of those came on March 2, 2021, when the New Jersey Appellate Division—New Jersey’s intermediate appellate court—I issued a lengthy opinion reversing two multi-million dollar verdicts in favor of plaintiffs in pelvic mesh product liability cases. (Actually, the court issued two lengthy opinions, a long published opinion and an even longer unpublished opinion…
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