New Jersey Lawyer & Attorney : Stark & Stark Law Firm : New Jersey Law Blog

In August of 2010, DePuy, a Johnson & Johnson company, announced a global hip replacement recall of two devices: the ASR Hip Resurfacing System and the ASR XL Acetabular System. Data from a recent study concerning XL Acetabular metal-on-metal hip replacement system showed that the 5 year failure rate of the product is approximately 13%, or 1 in 8 patients.  It has identified component loosening, component malalignment, fracture of the bone, dislocation, infection, metal sensitivity and pain as the reasons for the failure of the hip replacement system.

Recently, it has been thought that DePuy’s other metal-on-metal implant line, the Pinnacle system (Pinnacle Acetabular Cup System), might also have significant design defects.  As of now, DePuy has not issued a voluntary recall on the Pinnacle system, but there are concerns that the Pinnacle system also has an increased failure rate.  In 2010, the FDA Adverse Event Reporting System received over 500 complaints from people who had experienced adverse effects from the Pinnacle system.  Similar to the ASR XL Acetabular and ASR Hip Resurfacing Systems, the DePuy Pinnacle Acetabular Cup System was fast-tracked through the FDA’s medical device approval process because it was similar to already-approved devices.

While over 100 lawsuits have been filed as a result of the DePuy ASR recalls, a small number of suits alleging fault with the DePuy Pinnacle system have also been filed.  According to one suit, filed in December 2010, in the U.S. District Court for the Western District of Washington, the plaintiff has undergone six surgeries as a result of metal poisoning he developed after receiving a Pinnacle hip implant in 2007.  A second suit, filed in November 2010, in the U.S. District Court for the Central District of California alleges that another plaintiff has been suffering from an abnormal gait, nerve pain and other problems since receiving the Pinnacle device in 2004.

If you have had a hip replacement, which used one of the recalled DePuy devices, you can contact Stark & Stark and speak to one of the Mass Tort attorneys, free of charge, who can help assess any claims that you might have against the DePuy manufacturers.

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On December 9, 2010, a Notice to the Bar was issued by Judge Glenn A. Grant, Acting Administrator of the Courts, advising that an application had been made, pursuant to Directive #7-09, “Revised Mass Tort Guidelines,” requesting designation of all New Jersey state-court litigation involving DePuy ASR™ hip implants as a mass tort and assignment for centralized management in Middlesex County. 

The granting of mass tort designation in state court is similar to the granting of MDL treatment in the federal court.  Consolidating all of the DePuy hip recall cases that have been filed in New Jersey state court will streamline the lawsuits, allowing the parties to avoid duplicative discovery and inconsistent rulings from different judges.  Additionally, the mass tort designation will provide more convenience for the witnesses, the parties and the court.  During the pretrial litigation, one judge will manage all discovery and likely select a group of cases for early trials, also known as bellwether cases.  The outcome of the bellwether cases may assist the parties in reaching an agreement to settle all of the DePuy recall suits.

All comments and/or objections to the application for mass tort designation were due to the court by January 21, 2011. 

If you have had a hip replacement, which used one of the recalled DePuy devices, you can contact Stark & Stark and speak to one of the Mass Tort attorneys, free of charge, who can help assess any claims that you might have against the DePuy manufacturers.

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Gary S. Forshner, Shareholder in Stark & Stark’s Real Estate, Zoning & Land Use Group, will present a seminar in conjunction with the New Jersey Institute for Continuing Legal Education. The seminar, entitled, 2011 Land Use Update, will take place Wednesday March 23, 2011 at the New Jersey Law Center. The seminar will cover recent developments in New Jersey land use law. The 2011 update will help keep you abreast of the past year’s judicial decisions (both reported and unreported) as well as regulatory, legislative and ethical issues that impact this constantly changing area of practice.

Registration and additional information is available online here.
 

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In December 2010, the United States Judicial Panel on Multi-District Litigation (MDL) ruled to consolidate all federal district cases in the Northern District Court of Ohio.  The MDL 2197, In re DePuy Orthopaedics, Inc. ASR Hip Implant Products, will be handled by Judge David A. Katz who will manage all pre-trial issues for all federal DePuy hip implant recall cases. 

The granting of MDL treatment will streamline the lawsuits, allowing the parties to avoid duplicative discovery and inconsistent rulings from different judges.  Additionally, MDL treatment will provide more convenience for the witnesses, the parties and the court.  During the pretrial litigation, Judge David A. Katz will manage discovery and likely select a group of cases for early trials, also known as bellwether cases.  The outcome of the bellwether cases may assist the parties in reaching an agreement to settle all of the DePuy recall suits.

As of early January 2011, over 100 lawsuits had already been transferred to the MDL court.  However, it is expected that thousands of additional DePuy hip recall lawsuits will be transferred to the Northern District of Ohio within the next several months.

On January 20, 2011, the court held an initial status conference in West Palm Beach, Florida.  During the conference, the lawyers who applied for leadership positions within the MDL process received two minutes each to give their reasons for being assigned the various positions available.  Judge Katz’s ruling is expected in the coming weeks.

If you have had a hip replacement, which used one of the recalled DePuy devices, you can contact Stark & Stark and speak to one of the Mass Tort attorneys, free of charge, who can help assess any claims that you might have against the DePuy manufacturers.

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What happens when an individual hires an attorney to engage in estate planning but never signs a will?  Will the "probable intent" of that individual be carried out or will it be ignored because the will was never signed?  The simple answer is that a failure to sign a will can have disastrous results.

On December 29, 2010, in the case of "In The Matter Of The Trusts To Be Established In The Matter Of The Estate Of Margaret A. Flood, Deceased", the Appellate Division of the Superior Court of New Jersey found that probable intent could not be carried out if there was no signed will and an individual dies intestate.

In the Flood case, the decedent, who was a widow, had four children.  Two of her children were disabled and were receiving benefits from supplemental security income and Medicaid.  One was receiving benefits from the Division of Developmental Disabilities (DDD).  The decedent was concerned about protecting any inheritance that she might leave to her disabled children from any obligation they might have to reimburse the governmental entities that had provided them with services. 

The decedent died before she executed a will or testamentary trust.  The administrator of her estate went to Court to establish and fund the trusts that the decedent would have created had she not died before executing a will.  These trusts would have protected the inheritance for the children.  DDD opposed the relief sought.  At stake was $480,000.

The Trial Court held that the law would allow the decedent's intent to be carried out.  However, the Appellate Division reversed the Trial Court and found that the Court could not do what the decedent failed to do.  The Appellate Division found that while the doctrine of "probable intent" could be used to create a testamentary disposition when an individual had executed a will, it could not be used when a will was never executed.  The Appellate Division noted that the doctrine could not be used "...to write a will that the testator did not write".  The doctrine could be used to construe a will, but not to create a will. 

The simple lesson from this case is that if you want your intentions carried out, you better take care of completing your estate plan, and not just think about it.

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On December 17, 2010, Congress enacted and the President signed into law a bill (H.R. 4853) known as the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010.  Among other things, this piece of new legislation extends the life of the New Energy Efficient Home Credit, which expired on December 31, 2009, by two years.

Originally created by the Energy Policy Act of 2005 (and as amended by Section 703 of the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010), the New Energy Efficient Home Credit provides a $2,000.00 tax credit to a person who constructs a qualified new energy efficient home and a $1,000.00 tax credit to a person who constructs a qualified manufactured home provided that in either case (a) such person shall own and have a basis in the home during its construction, (b) the home is located in the United States and meets certain energy saving requirements, ( c) construction is substantially completed after August 8, 2005 and (d) the person who constructed the home sells or leases the home to another person for use as a residence after December 31, 2005, and before January 1, 2012.

The extension of the New Energy Efficient Home Credit is good news for “green” builders and producers of manufactured homes.

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The Senate and Assembly approved Senate Bill No. 1 (S1) proposing to eliminate the Council on Affordable Housing (COAH). By requirement of the New Jersey Supreme Court dating to 1975, municipalities are required to zone in a manner providing for a reasonable opportunity for development of affordable housing (also commonly known as Mt. Laurel housing). S1 proposes to replace the existing procedures for providing for affordable housing, largely eliminating COAH and the State's responsibility in ensuring that municipalities satisfy their Mt. Laurel obligation. Governor Christie has publicly vowed to conditionally veto S1 for various reasons, including that it contains municipal requirements or "quotas" for satisfying its Mt. Laurel obligation. However, New Jersey Courts have thus far consistently held that without so-called quotas, municipalities can skirt their obligations to provide for reasonable opportunities for affordable housing by simply eliminating residential zoning or otherwise frustrating residential development. Accordingly, the conditional veto anticipated from the Governor is likely to be deemed to be unconstitutional should it be enacted into law.
 
While the law proposes to eliminate COAH, as of now that body is the functioning agency responsible for overseeing municipal affordable housing obligations. However, the Courts previously declared, for the 2nd time that COAH's long delayed regulations are unconstitutional and required COAH to adopt constitutional regulations under a fast approaching deadline. As of yet, it is understood that COAH has not even begun to draft the Court ordered regulations at least in part due to the pending legislation proposed to end COAH's role in the process.
 
It has now been over a decade since New Jersey and its respective municipalities have been in compliance with their constitutional obligations to provide for a reasonable opportunity for affordable housing. COAH, the Legislature, the Governor and the Courts are on a collision course with regard to these obligations. Various interest groups are geared up to legally challenge any affordable housing regulation or legislation. At a minimum, the next several months or more will continue to be rocky until the issue is settled, at least with some likely action by the Courts.

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Despite years of judicial expansion, the New Jersey Consumer Fraud Act (CFA) may soon see its remedial and expansive reach significantly curtailed. This curtailment comes in the form of proposed Bill A-3333, which was introduced in the New Jersey Assembly early in the last quarter of 2010. The primary changes proposed to the CFA are: (1) discretionary, as opposed to mandatory treble damages for violations of the CFA; (2) a reduction or cap on the amount of Attorneys’ fees that can be awarded; and (3) explicit non-applicability of the CFA to businesses. 

While the Bill seeks to cap the amount of attorney’s fees and bestow upon courts of this State more discretion in awarding treble damages, the Bill does not alter or amend the provisions of the CFA mandating a refund and awarding attorneys’ fees where an unlawful practice is shown to have occurred. See, Cox v. Sears Roebuck & Co., 138 N.J. 2, 24 (1994) (award of attorneys fees required where “plaintiff can prove that defendant committed an unlawful practice, even if the victim cannot show any ascertainable loss and thus cannot recover treble damages.”) Accord, Artistic Lawn & Landscape Company, Inc. v. Smith, 381 N.J. Super. 75, 80 (2005) (“The refund provision of the C.F.A. is a statutory remedy, not based on proving damages.”).

Most importantly, if passed, the CFA will explicitly exclude a “business” from the definition of “consumer.” Such exclusion will have a number of beneficial effects including, but not limited to, elimination of aggressive, kitchen-sink tactics whereby CFA claims are asserted in commercial disputes between companies.

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Gary S. Forshner, Shareholder in Stark & Stark’s Real Estate, Zoning & Land Use Group, was mentioned in the January 7, 2011 New Jersey Builders Association’s Weekender article, Governor Signs Construction Lien Law Amendments.The article discusses the recent signing of the Construction Lien Law legislation which clarifies the procedures to be followed when processing a construction lien claim. 

Mr. Forshner, Chair of the New Jersey Builders Association's Master Sponsor program, was actively involved in the activities of the Law Revision Commission over the last 18 months on behalf of NJBA. The Construction Lien Law provides a statutory scheme for private contractors, subcontractors and suppliers to secure payment for their labor and materials, while not impeding the free transfer of real property, through a lien filing process.

You can read the full article online here.

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The federal Third Circuit Court of Appeals, which includes New Jersey, has ruled in a decision, Rea v. Federated Investors, which states that evidence of a former bankruptcy may be used by an employer in making a decision not to hire an employee. Previously, there was some question as to whether the use of a prior bankruptcy to refuse to hire an employee would constitute some form of discrimination, along the same lines as evidence of a prior criminal conviction. However, in a unanimous decision, a Third Circuit Court of Appeals Panel ruled that an employer may do exactly that – review the bankruptcy court records for evidence of prior bankruptcies, and use the existence of a prior bankruptcy to refuse to hire an employee. It was anticipated that the Court would issue a narrower decision that would allow employers to refuse to hire employees with a history of a former bankruptcy if the employer was in the financial/banking industry. However, no such limitation was identified by the Court, and employers in New Jersey, regardless of their industry, may use evidence of prior bankruptcies to deny employment.

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Jeffrey Weiner, Shareholder and member of Stark & Stark’s Business & Corporate Group, will present a seminar in conjunction with the New Jersey Institute for Continuing Legal Education (NJICLE) entitled, Nuts & Bolts of Small Business. The seminar will take place Saturday February 5, 2011 from 9:00 AM -12:00 PM at the Westin Mount Laurel Hotel in Mount Laurel, New Jersey.

The seminar will discuss what attorneys need to know when counseling clients on setting up small businesses. The seminar will cover topics such as what entity your client's should choose (sole proprietorship, LLC, corporation, etc.), a discussion on formation issues (treatment of service providers, transfers of equity, conversions, etc.), and  an overview of operating, shareholder and partnership agreements.

For additional information or to register for the seminar, please visit the NJICLE’s website.

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Allen M. Silk, Shareholder in Stark & Stark’s Business & Corporate and Business Succession Planning Groups, was quoted in the January 3, 2011 NJ Biz article, Prepared for the inevitable. The article discusses Larry Rothwell, Owner of Pennington Quality Market, and his decision to implement a business succession plan. Rothwell began planning for his retirement in the early 1990's and implemented a succession plan in order to transition his company to his children after his retirement.

Mr. Silk advises clients to begin the process of succession planning early in order to avoid potential hazards in the future after a traumatic even has occurred. He states, “Generally, people tend to be more reactive than proactive, and I think that’s probably a characteristic that most people have — not just business owners.”

You can read the full article online here. (PDF)
 

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Thomas B. Lewis, Chair of Stark & Stark’s Employment Group, was quoted in the January 3, 2011 Wall Street Journal article, UBS To Pay $2.8 Mln To Former Top Recruiter In Contract Flap. The article discusses FINRA’s decision to award Jeffrey Bischoff, former chief recruiter of UBS AG’s wealth-management group, $2.8 million in damages and other fees. Bischoff first filed the arbitration case against the firm in July 2009 and sought $1.9 million in damages.

Mr. Lewis states, “What this award tells me is that it was a clear breach of contract by UBS and that the conduct warranted the imposition of damages requested.” You can read the full article online here.
 

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Originally created by the Energy Policy Act of 2005, the Residential Energy Efficient Property Tax Credit provides a tax credit for the taxable year in an amount equal to the sum of 30% of qualifying expenditures made by the taxpayer during such year for solar electric or solar water heating systems, fuel cell property, wind energy systems or a geothermal heat pump. See 26 U.S.C. § 25D.  All qualifying expenditures must be for property used as a residential dwelling by the taxpayer located in the United States, but only qualified fuel cell property must be installed at the taxpayer’s principal residence.  This credit is applicable to qualifying property and expenditures placed in service before January 1, 2017.

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