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New Jersey remains a Mary Poppins’s carpetbag of liability: you never know what will pop out nor how big it will be! While the legislature leads in set- ting the tone for liability expansion, the state’s supreme court has started to keep up.

PRO-PLAINTIFF LEGISLATURE

The New Jersey legislature has been a breeding ground for problematic legislation. Every session, its members introduce and try to pass numerous liability-expanding bills. Several pieces of legislation would pin the burden of the COVID-19 pandemic on businesses that are struggling during the economic downturn.

S2380

New Jersey enacted legislation in September providing that any essential worker who contracts COVID-19 is legally presumed to have caught the virus at work. Despite research that finds the main sources of COVID-19 are family and social gatherings as well as travel, the legislation would embrace a counterfactual idea that businesses are the main source of COVID-19 in the state. If people believe that businesses are the source of COVID-19, it could dampen the post-COVID-19 economic recovery. Business leaders were quick to point out that it would be illogical to extend the policy to illnesses like the flu and colds and claim it is unfair for COVID-19 to be treated as an employer-driven liability.

A3844

In a proposal that would have a devastating effect on insurance in New Jersey, the legislature is considering a bill that would mandate insurers cover all COVID-19 business interruption claims, even on policies that have specifically excluded pandemics and viruses. Thankfully, the legislature put the bill on hold. Even though there would have likely been constitutional issues on retroactively changing a contractual relationship, the legislation is indicative of the legislature’s willingness to compel business to bear the costs of COVID-19.

S1152

S1152, introduced by Teresa Ruiz (D) and currently in committee, would change the way courts analyze all standardized consumer contracts. The bill would mandate courts interpret contracts with a presumption of substantive unconscionability. This would mean that courts could more easily invalidate any standardized consumer contract a business uses, whether that be in insurance, contracting, or realty among others.

SR57

A resolution entitled “Urges Governor and AG to pursue legal action against fossil fuel companies for damages caused by climate change,” is making its way through the legislature. It requests that New Jersey Attorney General Gurbir Singh Grewal (D) pursue legal action against oil and natural gas companies. Such action would be similar to that taken by other attorney generals in Minnesota, New York, and Washington, DC. The legislation has gained some popular attention in local publications. Monmouth University held a webinar on the topic this summer. This type of litigation attempts to establish public policy through lawsuits, which cannot solve such complex problems. Attempting to resolve an environmental crisis requires a court to assume the responsibilities and authority of the other two branches of government.

GOOD NEWS – S2333

On the bright side, New Jersey is one of the states that has provided reasonable protections from liability for healthcare providers during the pandemic. The legislation gives assurance to doctors, nurses, and hospitals that are treating surges of COVID-19 patients that they will not unfairly be held liable as a result of shortages of staff, beds, and equipment during the declared emergency. A healthcare provider remains subject to liability if it provides care in a grossly negligent or reckless manner.

DETERIORATING JUDICIAL CLIMATE

The legislature in Trenton has been busy, but that has not deterred plaintiffs from litigating or the New Jersey Supreme Court from expanding liability.

Plaintiffs continue to file copious numbers of “Americans with Disabilities Act” (ADA) lawsuits challenging the accessibility of a business’s physical facilities or websites to those with disabilities. In New Jersey, there has been a rise in the number of ADA lawsuits. While the state lags far behind the California, New York, and Florida leaders, New Jersey had a 15 percent increase in ADA lawsuits between 2018 and 2019. Halfway through 2020, New Jersey remained in the top 10 states for these types of lawsuits.

The New Jersey Supreme  Court  has  expanded  liability  and  allowed  plaintiffs  to  bring  multiple  suits for the same action. In Sun Chem. Corp v. Fike Corp, the Court ruled that plaintiffs can sue under the state’s

Products Liability Act (PLA) and again under the state’s Consumer Fraud Act (CFA). In the case, a chemical company brought a CFA claim against manufacturers of a fire suppression system after the system failed to stop a fire. The Court reasoned that the CFA and the PLA govern different conduct, and therefore, different remedies are available.

Furthermore, the Court has expanded asbestos liability as plaintiffs’ lawyers  search for solvent defendants. In Whelan v. Armstrong International, the Court found a company liable even though the plaintiff conceded that the defendant had not manufactured the asbestos causing the injuries. In this case, Armstrong International had made parts containing asbestos, but those parts were replaced by others from a different manufacturer. Because the replacement part manufacturer remains unknown, the Court found that it would be fair to burden Armstrong with an injury it factually did not cause.

OPPORTUNITY TO REINFORCE EXPERT EVIDENCE STANDARD

In 2018, the New Jersey Supreme Court ruled that state courts must evaluate the reliability of proposed expert testimony in a similar manner as federal and most state courts. That ruling came after Atlantic County Judge Nelson Johnson found that plaintiffs’ experts had cherry-picked evidence to support their testimony that the acne medication Accutane caused Crohn’s disease. After the appellate division reversed, finding New Jersey applied a more “relaxed” approach to admitting expert testimony, the New Jersey Supreme Court reinstated Judge Johnson’s ruling, finding his reasoning “unassailable.” The Court also adopted the rigorous Daubert factors for future cases, which demands that judges serve as gatekeepers over the reliability of expert testimony.

This August, however, the appellate division again reversed a decision by Judge Johnson. This time, Judge Johnson had dismissed a pair of lawsuits claiming that use of Baby Powder caused two women to develop ovarian cancer, finding the plain- tiffs’ experts relied on weak studies, while disregarding more reliable science. His ruling criticized the “narrowness and shallowness” of the experts’ scientific inquiries and found that their options “slanted away from objective science toward advocacy.” Judge Johnson wrote, “It was almost as if counsel and the expert witnesses were saying, Look at this, and forget everything else science has to teach us.

The appellate panel, however, found that since there was “more than minimal support” for an association between talc and ovarian cancer, the case should go to trial. That, of course, is not the standard for judicial gatekeeping under the New Jersey Supreme Court’s 2018 decision. If not reversed, the appellate division ruling would end a stay of 800 talc cases pending in Atlantic County. Observers are closely watching whether the New Jersey Supreme Court will again side with Judge Johnson’s rigorous gatekeeping or New Jersey will revert to an everything goes to trial approach. ATRA filed an amicus brief with the state high court in October urging it to keep “junk science” out of New Jersey courtrooms.

“It was almost as if counsel and the expert witnesses were saying, Look at this, and forget everything else science has to teach us.”
– Judge Nelson Johnson

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