In August 2008, the Judicial Panel on Multi-District Litigation granted a petition filed by Plaintiffs to consolidate all federal cases in the Eastern District of Missouri before Judge Rodney W. Sippel. Subsequently, the Supreme Court of New Jersey ordered that all pending and future New Jersey state court actions arising out of the use of the contraceptive NuvaRing were to be designated as a mass tort for centralized case management purposes. Judge Martinotti in Bergen County, New Jersey was assigned to coordinate the pretrial discovery. 

Typically, granting MDL and mass tort treatment streamlines the pretrial discovery process, allowing the parties to avoid duplicative discovery and inconsistent rulings from different judges. Over the course of the last several months, the parties have worked together to select and prepare the initial cases to be tried in both the federal and state courts, which are expected to begin in early to mid 2012. 

If you, or someone you know, has experienced adverse effects as a result of using Nuvaring, you can contact Stark & Stark and speak to one of the Mass Tort/Pharmaceutical Litigation attorneys, free of charge, who can help assess any claims that you might have against the manufacturer of Nuvaring.

At the conference, the parties were able to agree on various discovery issues, including the form and content of the Plaintiff and Defendant fact sheets as well as the short form Complaint and Answer.The next Case Management Conference has been scheduled for late July 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.

On April 12, 2011, The Supreme Court of New Jersey Court ordered that all New Jersey cases shall be assigned for centralized case management purposes to Judge Brian R. Martinotti in Bergen County, New Jersey.  As such, any cases filed in New Jersey state court will be transferred to Judge Martinotti to manage discovery. 
 

The initial Case Management Conference with Judge Martinotti is scheduled for May 10, 2011, at which time, counsel is expected to discuss, among other things, the implementation of a discovery plan as well as efforts to coordinate with Judge David A. Katz, who is overseeing the cases in the federal MDL.

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.

As we have also previously reported, the United States Judicial Panel on Multi-District Litigation (MDL) met on Wednesday, March 30, 2011, in San Diego, CA, to hear arguments regarding whether the Darvocet and Darvon cases should be given MDL treatment. Granting MDL treatment will consolidate all federal lawsuits filed across the U.S. into one centralized district.  This consolidation will streamline the pretrial discovery process, allowing the parties to avoid duplicative discovery and inconsistent rulings from different judges.  The seven-judge panel, headed by the Honorable John G. Heyburn II of the Western District of Kentucky, has yet to issue a ruling.  However, a decision is expected shortly. 

If you feel you have experienced any side-effects from taking Darvocet, Darvon or generic propoxyphene you can contact Stark & Stark and speak to one of the Mass Tort/Pharmaceutical Litigation attorneys, free of charge, who can help assess any claims that you might have against the Darvocet or Darvon manufacturers.

In addition to state mass tort actions, similar matters are proceeding in the parallel federal multi-district litigation, which is currently before The Hon. Rodney W. Sippel, U.S.D.J. in the Eastern District of Missouri. A discovery schedule for the Phase 1 bellwether cases was issued, requiring completion of fact discovery by June 24, 2011, depositions of plaintiffs’ experts by October 24, 2011, and depositions of defendants’ experts by February 20, 2012. 

At Stark & Stark we pursue claims throughout the nation against drug manufacturers, so they can be held accountable when the drugs they market are proven to be defective or cause catastrophic injury to the people who use them. Contact Stark & Stark to speak with one of the Mass Tort/ Pharmaceutical Litigation attorneys, free of charge, who can help assess any claims that you might have against the manufacturers of NuvaRing®.

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.

• Unexplained Hip Pain
• Thigh Pain or Groin Pain
• Pain with Walking
• Pain Rising from a Seated Position
• Pain with Weight Bearing
• Swelling around the Hip
• Memory Loss
• Hand Tremors
• Tinnitus
• Hearing Loss
• Diminished Coordination

Since the recall in August 2010, a number of lawsuits have been filed in both the federal and state court levels.  The number of lawsuits filed is expected to increase dramatically as more people learn of the recall.

On December 3, 2010, the United States Panel on Multi-District Litigation issued an Order, pursuant to 28 U.S.C. § 1407, consolidating all federal DePuy hip replacement recall lawsuits and centralizing them in an MDL (Multidistrict Litigation) in the U.S. District Court for the Northern District of Ohio.  The Panel concluded that, “the actions share factual issues as to whether DePuy’s ASR XL Acetabular Hip System, a device used in hip replacement surgery, was defectively designed and/or manufactured, and whether DePuy failed to provide adequate warnings concerning the device, which DePuy recalled along with another ASR device, the ASR Hip Resurfacing System, in August 2010.”  The Panel opined that the centralization in the Northern District of Ohio will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation.  Furthermore, the centralization will eliminate duplicative discovery, prevent inconsistent pretrial rulings on discovery and other issues, and conserve the resources of the parties, their counsel and the judiciary. Judge David A. Katz, an experienced transferee judge, will coordinate discovery and pretrial proceedings.

Essentially, the Panel’s ruling means that all lawsuits over recalled DePuy ASR hip replacement systems that are filed in any federal district court throughout the United States will be transferred to U.S. District Judge David A. Katz in Ohio.  However, cases filed in state court will continue in their respective states.

If you have had a hip implant within the past 7 years but are uncertain what type of implant device was used, you should contact your doctor immediately for additional information. 

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.

After receiving Mass Tort designation on February 9, 2010, in the New Jersey Superior Court, Bergen County, Judge Martinotti issued an Initial Order for Case Management on February 18, 2010. The Case Management Order (CMO) is the basis for how pending and future cases are managed leading up to trial. A few of the issues outlined in the CMO are:

1. the method for handling discovery requests;
2. preservation of records;
3. cases to be filed in the future;
4. methods for filing pleading documents; and
5. methods for filing motions.

An initial Case Management Conference (CMC) has been scheduled for April 26, 2010. At that time counsel for all of the parties will appear before Judge Martinotti to discuss suggested procedures that will facilitate a just, expeditious and inexpensive resolution to the litigation. Counsel for the parties will meet and confer before the CMC to seek consensus with regard to the items that are to be discussed during the conference.

On February 9, 2010, the New Jersey State Supreme Court granted Mass Tort designation to YAZ®, Yasmin® and Ocella® cases, pursuant to the application made under Rule 4:38A. Accordingly, all pending and future New Jersey state court actions arising out of the use of the oral contraceptives YAZ®, Yasmin® and Ocella® are designated as a mass tort for centralized case management purposes. Any and all such complaints that have been filed in the various counties and that are under or are awaiting case management and/or discovery shall be transferred from the county of venue to Superior Court, Law Division, Bergen County, and assigned to Judge Brian R. Martinotti, J.S.C.
 

If you, or someone you know, has been injured as a result of taking these medications, contact Stark & Stark’s Mass Tort/Pharmaceutical Litigation Team. At Stark & Stark we pursue claims throughout the nation against drug manufacturers, so they can be held accountable when the drugs they market are proven to be defective or cause catastrophic injury to the people who use them. Contact Stark & Stark to speak with one of the Mass Tort/ Pharmaceutical Litigation attorneys, free of charge, who can help assess any claims that you might have against the YAZ®, Yasmin® or Ocella® manufacturers.

In recent months, the defendants filed a motion for the entry of a Lone Pine case management order. Such an order would have required all existing and future plaintiffs in the NuvaRing® MDL to submit a Rule 26(a)(2), or case specific, expert report attesting to a reasonable degree of medical certainty that NuvaRing® caused the injury suffered by each plaintiff. The defendants claimed that the entry of a Lone Pine case management order would promote judicial efficiency by discouraging claims that did not have merit and allowing the Court to group cases with legal similarities. However, the plaintiffs argued that the entry of a Lone Pine case management order would actually have amounted to an onerous burden that would have the effect of discouraging many plaintiffs from filing otherwise viable claims against the defendants. Accordingly, the Court ruled in favor of the plaintiffs and denied the defendants' motion for entry of a Lone Pine case management order, without prejudice.

Courts in the United States have consolidated NuvaRing® claims in two locations:  1) New Jersey Superior Court, Law Division, Civil Part, Bergen County Vicinage; and 2) the United States District Court for the Eastern District of Missouri.  As of July 1, 2009, there have been 79 cases filed in new Jersey Superior Court and more than one hundred in the Eastern District of Missouri.
 

In both New Jersey and New York, news is unfolding of possible inappropriate practices of college and university employees accepting perks ranging from stock options, the use of vacation homes, trips, as well as cash provided by loan industry representatives in an effort to become one of the institution’s preferred lenders for prospective students.

More than 90% of all students have some form of student loan, and more than 80% utilize the private lenders recommended by the university. Since these loans are for the most part subsidized by the government, there is little risk of non-payment to the lenders, in fact student loans are not even dischargable in bankruptcy.

Colleges and universities must now face the reality that in spite of their enlightened existence, they too are subject to conflicts of interest, as well as possible civil and even criminal liability.

Such material is accorded an almost absolute protection from discovery because any slight factual content that such items may have is generally outweighed by the adversary system's interest in maintaining the privacy of an attorney's thought processes and in ensuring that each side relies on its own wit in preparing their respective cases.

Id. at 316.

In Shelton, defendant's in-house counsel refused to respond to deposition questions seeking information regarding the existence or non-existence of documents in defendant's possession. Counsel argued that: 1) relevant documents were already produced, interrogatories were answered, counsel’s knowledge was acquired solely in her efforts to assist her client in litigation and thus constituted work product; and 2) any recollection of particular documents on certain subjects would reveal those to which counsel attached particular significance, revealing her theories and opinions. The court held that counsel had no first hand factual information related to the claims and that the questions she was asked sought more than just information about the existence of documents. The court agreed that the selective review and recollection of documents reflects the attorney's professional judgment on the issues, as well as her legal theories and thought processes. It found that "[i]n cases that involve reams of documents and extensive document discovery, the selection and compilation of documents is often more crucial than legal research...." Id. at 1328; see also, In re Grand Jury Subpoenas Dated October 22, 1991 and November 1, 1991, 959 F.2d 1158 (2d Cir.1992) (applying the Sporck principle that production of otherwise unprivileged documents that could be protected from discovery if their disclosure presented a real concern that the thought processes of counsel would be exposed); Santiago v. Miles, 121 F.R.D. 636, 638-40 (W.D.N.Y.1988) (court applied Sporck, finding that Second Circuit has recognized the selection and compilation doctrine; while data in computer printouts consists of unprivileged facts, printouts were prepared at direction of counsel and reflect counsel's selection process and mental impressions, deserving of protection in absence of strong showing of necessity and unavailability).

Thus counsel’s selection and compilation of otherwise discoverable documents should be protected under the work product doctrine.

Such was also the explicit holding in F. Bender, Inc. v. Muscarelle, Inc., 304 N.J. Super. 282, 285 (App. Div. 1997):

We know of no case where the statutory protections given to a subcontractor or sub-subcontractor by filing a notice of intention or stop notice could be replicated by a common law claim based upon quantum meruit. Such a rule would create havoc in the construction industry. See Insulation Contracting & Supply v. Kravco, Inc., supra, (denying similar reimbursement in a claim by a sub-subcontractor against the prime contractor after the subcontractor for whom the plaintiff had performed defaulted).

 In this case, Hertz had an obligation to pay its contractor, and, Muscarelle, the contractor, had an obligation to pay its subcontractor, Tri-Gee, who in turn had an obligation to pay plaintiff, its subcontractor. When plaintiff performed, it had a claim only against Tri-Gee unless it filed a notice of intention or stop notice in compliance with the Mechanics' Lien Law. It is true that Hertz and/or Muscarelle may have received the benefit of plaintiff's work; however, Tri-Gee owes plaintiff for that work.

Quantum meruit, which plaintiff seeks, requires that there be unjust enrichment. Callano v. Oakwood Park Homes Corp., 91 N.J. Super. 105, 108- 109, 219 A.2d 332 (App.Div.1966). Here, there was no unjust enrichment.

Id. at 284-5.

Therefore, the sub-subcontractor’s unjust enrichment and quantum meruit claims against the EPC contractor and owner will not support any cognizable claim for relief, and must be dismissed. Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989); Leon v. Rite Aid Corp., 340 N.J. Super. 462, 466 (App. Div. 2001); Rule 4:6-2(e). The sub-subcontractor is thus left to seek redress under the statutory provisions of the construction lien law, and through its direct contractual claims against the subcontractor.

In establishing a causal link between delay and the damages claimed, a contractor must show that the contractee's actions affected activities on the critical path of the contractor's performance of the contract. See, Kinetic Builder's Inc. v. Peters, 226 F.3d 1307 (Fed. Cir. 2000) (government contractor failed to show causal connection between Air Force's delay in correcting defective restroom design in building to be altered and slowing of contractor's progress in completing contract, so contractor was not entitled to time extension or reimbursement for extended job site overhead costs in connection with such delay). The party seeking delay damages bears the burden of establishing the alleged damages with a reasonable degree of certainty. See, Fieldcrest Builders, supra, 724 N.E. at 58 (1st Dist. 1999).

In addition, Courts in the 4th Circuit have held that the party claiming it incurred added costs because of delay in performance required under the contract has the burden of proving these costs. Virginia Beach Mechanical Services, Inc. v. Samco Construction Company, 39 F. Supp. 661, 672 (E.D. Va. 1999) (citing United States v. Citizens & Southern Nat. Bank if Atlanta, 367 F.2d. 473, 480 (4th Cir. 1966). If there are factors for which the defendant is responsible and factors for which it is not, the party alleging a delay caused by a material breach must provide a reasonable basis for apportioning the damages. Id. Applying these principles to the facts in Samco, the Court held that at least one other subcontractor caused the delays and may have stalled the contract performance, and for this reason, it could not conclude what role the contractor played in delaying ultimate completion of the contract and causing the damages sought. Id. Finally, the Court found that the subcontractor did not provide a reasonable basis for apportioning damages among the contractor and other subcontractors, who were obviously a substantial factor in the delay that did result. Id.

Therefore, it is the subcontractor that bears the burden of proving that an EPC contractor’s actions caused delay and constructive acceleration.

The lien claimant sub-subcontractor must file suit against the subcontractor, property owner, EPC contractor and any possible parties the subcontractor knows to have an interest in the real property that would be adversely affected by the judgment. The CLL permits the EPC contractor the right to defend against such foreclosure regardless of the position taken by the subcontractor or property owner:

(emphasis added);see, also, Kvaerner, 368 N.J. Super. 200 ("We are mindful that N.J.S.A. 2A:44A-14a(2) confers upon a lienee the opportunity to force an evaluative review of the lien claim. Logic suggests that the property owner's representative, a general contractor, should have the same opportunity").

In this manner, an EPC contractor enjoys standing to object to and defend against the sub-subcontractor’s lien claim, regardless of the position taken by the owner or subcontractor.