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Over the past five years, the New Jersey Supreme Court has centralized a number of significant multiparty, multivenue cases in Middlesex County. The results of this effort were laudable from both an administrative and substantive perspective. Judicial resources were saved, inconsistent discovery, class action and substantive judicial decisions were avoided, and extensive mass tort administrative and judicial expertise was developed in Middlesex County. What was not as successful, however, was the establishment of a transparent process for identifying cases appropriate for coordination and the open public consideration of the factors weighing in favor of or against the transfer and coordination of particular cases. The Supreme Court has now addressed the problem through the enactment of Rule 4:38A. The Problem As legal liability theories have expanded, a wide variety of new and innovative claims were pursued in New Jersey courts. The state’s courts struggled to manage the difficulties presented by these cases. The system for the judicial resolution of civil claims was strained by litigation involving large numbers of individual plaintiffs and defendants; parallel state and federal proceedings; catastrophic local or regional events; complex causation issues; classes of parties allegedly suffering both substantial and individually inconsequential damages; and actions with many other unique characteristics. Transfer and consolidation of “related” actions has been a key method used by the courts to deal with this problem. Transfer and consolidation of civil litigation are governed by New Jersey Civil Practice Rules 4:3-3 and 4:38-1. These rules, however, are clearly focused on transfer and consolidation of individual actions as opposed to coordination of types of claims. Thus, they do not easily permit consideration of the sort of policy and administrative issues raised by new and innovative mass tort claims. To evaluate and address the difficulties of large, complex local or multi-venue litigation, New Jersey courts have relied on the administrative powers granted to the New Jersey Supreme Court. Thus, Art. 6, � 2, para. 3 of the New Jersey Constitution provides: “The Supreme Court shall make rules governing the administration of all courts in the State and, subject to law, the practices and procedure in all such courts.” It also states that “The Chief Justice of the Supreme Court shall be the administrative head of all the courts in the State.” Pursuant to these powers, the New Jersey Supreme Court addressed numerous issues affecting administration of the courts. For the most part, these efforts have been instituted pursuant to publicly disclosed rules and procedures � including, for example, enactment of Court Rules governing the procedures to be followed in civil actions filed in state court. With respect to mass tort consolidation however, these efforts initially consisted of the ad hoc and unexplained coordination of cases and claims potentially presenting common factual or legal questions. This mass tort coordination activity began with the Court’s assignment of certain asbestos cases to a single judge in Middlesex County: Following that asbestos consolidation order, the Global Landfill, FRT Plywood, breast implant and other significant litigations were centralized by the Court in that county. Experience with these consolidation efforts led to the proposal of the 1998 Supreme Court Mass Tort Advisory Committee for the explicit formation of a mass tort court. That report first reviewed how New Jersey Courts had historically dealt with mass tort litigation. It concluded that those ad hoc procedures were inadequate and recommended a number of specific responses, including the imposition of special mass tort filing fees, use of special discovery masters and consolidation of mass tort cases in the single county (Middlesex) which had previously had the most significant experience in dealing with those actions. The report’s proposals, while widely praised, were rejected by the Court. In essence, the Court concluded that the problems presented by mass tort litigation had not reached the point where vicinage-by-vicinage management efforts were no longer adequate. Despite rejecting the report’s call for a specific mass tort court, however, following that report, the Court did exercise its administrative authority to transfer a number of mass tort cases to the venue recommended by the advisory committee report. These consolidated cases included the PPA, Propulsid, Rezulin, lead paint, Ciba-Geigy and Norplant litigations. In each circumstance there was no publicly disclosed request for the transfer or consolidation of these actions and no public consideration of the factors justifying transfer of the cases to this particular Middlesex County venue. Rather, orders simply emerged from the office of the Chief Justice of the Supreme Court without any apparent impetus for those orders and without any explanation of the nature and extent of the Court’s consideration of input from any party, any member of the judiciary or the public with respect to any particular “mass tort” transfer. To deal with this problem, in October 2003, the Court promulgated Rule 4:38A. Coordination Rule and Guidelines Rule 4:38A provides: The Supreme Court may designate a case or category of cases as a mass tort to receive centralized management in accordance with criteria and procedures promulgated by the Administrative Director of the Courts upon approval by the Court. Promulgation of the criteria and procedures will include posting in the Mass Tort Information Center on the Judiciary’s Internet website ( www.judiciary.state.nj.us). The Administrative Director of the Courts in turn published the following mass tort guidelines and criteria for designation: Procedure for requesting designation of a case as a mass tort for centralized management. 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 cases classified as a mass tort, and assigned to a designated judge for centralized management. 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 Web site 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. If the Court determines that the case(s) should be classified as a mass tort and assigned to a designated judge for centralized management and, in the judge’s discretion, trial, 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 in the mass tort information center on the judiciary’s Web site. 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 involves: (i) large numbers of parties; (ii) many claims with common, recurrent issues of law and fact that are associated with a single product, mass disaster, or complex environmental or toxic tort; (iii) a geographical disbursement of parties; (iv) a high degree of commonality of injury or damages among plaintiffs; (v) a value interdependence between different claims, that is, the perceived strength or weakness of the causation and liability aspects of the case is often dependent on the success or failure of similar lawsuits in other jurisdictions; and (vi) a degree of remoteness between the court and actual decision-makers in the litigation, that is, even the simplest of decisions may be required to pass through layers of local, regional, national, general and house counsel. � whether there is a risk that centralization may unreasonably delay the progress, increase the expense, or 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 case requires specialized expertise and 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; � whether issues of insurance, limits on assets and potential bankruptcy can be best addressed in coordinated proceedings; and � whether there are related matters pending in federal court or in other state courts that require coordination with a single New Jersey judge. Choice of Site and Subsequent Related Actions Issues of fairness, geographical location of parties and attorneys, and the existing civil and mass tort caseload in the vicinage will be considered in determining to which vicinage a particular mass tort will be assigned for centralized management. This decision will be made by the Supreme Court. The initial order of the 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 Court. Severance and Termination 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 counties of venue any that no longer warrant centralization. When the mass tort judge determines that centralized management is no longer necessary or appropriate under the circumstances, she will send a written report to the administrative director, with copies to the assignment judge, civil presiding judge, trial court administrator and civil division manager of her vicinage. The report shall provide details of matters resolved as well as the particulars concerning any unresolved matters being returned to their original counties of venue. This report must be presented to the Court for review. These guidelines address the criticism of prior Supreme Court practices in this area by: (1) identifying who may seek coordinated treatment of a mass tort; (2) where that application is to be made; (3) the notice requirements for that application; (4) vesting in the coordinating judge the discretion to determine whether to retain jurisdiction over the coordinated cases through trial; and (5) providing for Supreme Court review of any determination that centralized management of a particular group of mass tort cases is no longer warranted. The guidelines also identify the factors that the Court will use in determining whether or not coordinated treatment of particular mass tort cases is appropriate. Finally, the guidelines announce that the Court will determine where particular mass tort cases will be centralized on the basis of consideration of “issues of fairness, geographical location of parties and attorneys and the existing civil and mass tort caseload in the vicinage.” This provision, in fact, is one of the few aspects of the guidelines that does not appear to acknowledge the state courts’ existing practice in the mass tort coordination effort. During 2003, two additional vicinages (Judge Carol Higbee in Atlantic County and Judge Charles Walsh in Bergen County) were used by the Supreme Court to relieve the burden that the mass tort consolidation effort imposed on Judge Marina Corodemus in Middlesex County. The guidelines provide no indication of whether the Court will continue to focus its mass tort coordination efforts in these three counties or whether the Court is accepting the proposals that have been made to expand the mass tort coordination effort to the excellent judicial resources that exist throughout the state. Prior Supreme Court mass tort coordination practice resulted in a number of major achievements in the administration and resolution of many large and significant cases. The procedures used by the Court in addressing this coordination effort, however, were highly secretive and failed to inform the Bar and the public of the characteristics of the cases to be coordinated; the factors to be weighed in coordinating those cases; when the coordination decision was to be made; the forum in which that decision was to be made; and how the coordinated cases were to be processed. Rule 4:38A has effectively addressed this problem and provided New Jersey courts with the potential for continuing to effectively deal with mass tort cases while at the same time eliminating the secret administrative processes that had grown in this area. It is to be hoped that this rule and the associated guidelines will permit New Jersey courts to continue to handle mass tort cases effectively and to address the administration of those cases in full public view. Dore is a director at Lowenstein Sandler of Roseland and is the author ofLaw of Toxic Torts: Litigation-Defense-Insurance (West Group 2002). The positions expressed in this article are solely his own and do not represent the views of his clients or the firm.

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