New Jersey, (Mass Actions) & You — Still Perfect Together?
Earlier this month, we wrote about a choice-of-law decision from the New Jersey Supreme Court that we believe will invite more out-of-state plaintiffs to forum-shop and file suit in New Jersey. This prospect of increased “litigation tourism” brought to mind the old New Jersey tourism slogan “New Jersey and You – Perfect Together.”
It also brought to mind that New Jersey’s state-law version of an MDL — the New Jersey Multicounty Litigation program — remains a favorite vehicle for plaintiffs and their lawyers to pursue pharmaceutical and medical device claims.
Those familiar with the program, which has its own webpage on the New Jersey Judiciary website, know that cases can be centralized for coordinated judicial management before one of four trial court judges: Judge Johnson in Atlantic County, Judges Viscomi and Hyland in Middlesex County, and Judge Harz in Bergen County.
Judge Viscomi concentrates primarily on overseeing the state’s long-running asbestos docket, while Judges Johnson, Hyland, and Harz currently manage eighteen other centralized litigations, many of which focus on claims involving pharmaceuticals or medical devices. Indeed, since the inception of the program under Rule 4:38A in 2003, the vast majority of centralized litigation in New Jersey (which used to be officially called “mass torts” before the defense bar successfully lobbied for a change to more neutral terminology) has involved pharmaceuticals (prescription and over-the-counter) and medical devices.
There are many reasons for this, beginning of course with the fact that New Jersey has traditionally been home to many pharmaceutical and medical device companies, thus making it easier for plaintiffs across the country to assert jurisdiction over those companies.
Another draw in recent years has been the belief among many plaintiffs’ lawyers that one of the previous judges assigned to this program — Hon. Carol Higbee — was relatively more plaintiff-friendly. As a result, several high-profile litigations were centralized before her in Atlantic County. However, since her successor, Judge Johnson, has begun to issue more decisions favorable to defense arguments (including an important ruling striking plaintiffs’ experts in cases involving ovarian cancer and talc), Atlantic County has become less of a favored forum for plaintiffs. Recent centralization applications suggest that plaintiffs’ new first-choice destination is Judge Harz in Bergen County. (Judge Hyland was recently assigned, on a temporary basis, to take over management of all non-asbestos centralization litigation in Middlesex County, and it remains to be seen whether this appointment will be made permanent in the coming court year.)
Although recent developments in New Jersey’s multicounty litigation program may have affected the internal dynamics and distribution of cases, we expect that New Jersey will continue to see an influx of such cases for the foreseeable future.