New Jersey Supreme Court Holds That Daubert Factors Apply to Evaluating Expert Testimony in Civil Cases

Lauren E. O’Donnell

On August 1, 2018, the New Jersey Supreme Court held that civil trial courts should look to the factors set forth in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), in assessing the reliability of expert testimony. The opinion—In re: Accutane Litigation—adopted the Daubert factors, but specifically stopped short of declaring New Jersey a “Daubert jurisdiction.”

In the early 1990s, the New Jersey Supreme Court shifted away from the “general acceptance” standard for testing the reliability of scientific expert testimony in civil cases enunciated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). It instead endorsed a methodology-based approach. See Landrigan v. Celotex Corp., 127 N.J. 404, 414 (1992); Rubanick v. Witco Chem. Corp., 125 N.J. 421, 447 (1991). The Court reasoned that parties should be permitted to present novel scientific evidence of causation if the trial court acts as a rigorous gatekeeper when reviewing an expert’s reliability and ultimately finds that the expert’s reasoning and methodology are sound. Two years later, in Daubert, the United States Supreme Court also abandoned the “general acceptance” test in favor of a methodology-based approach that entrusted trial courts with the role of gatekeeper. Thus, beginning in the early 1990s, New Jersey state courts considered similar factors to those in Daubert when evaluating expert testimony. Despite these similarities, the New Jersey Supreme Court never formally adopted Daubert or endorsed the factors identified in Daubert for state trial courts to use when performing the gatekeeper role. Continue reading “New Jersey Supreme Court Holds That Daubert Factors Apply to Evaluating Expert Testimony in Civil Cases”

How Video Game Mods Are Changing the Intellectual Property Game

Jeffrey N. Rosenthal and Ethan M. Simon

A year ago, the word “fortnight” was relegated to relative obscurity—an archaic way of saying two weeks. In July 2017, however, all that changed. After software developer Epic Games released the blockbuster video game Fortnite Battle Royale—a multi-platform, free-to-play game in which players participate in a cartoonish fight for survival in a post-apocalyptic world—the word “Fortnite” can now be heard everywhere.

Unlike other free games, Fortnite does not include ads; rather, to generate revenue it relies solely on in-game purchases from players to customize their avatar’s appearance (called “skins”) with no other qualitative enhancements. Despite its simple premise and novel business model, Fortnite has been an overwhelming success—boasting 45 million players as of February 2018. USA Today recently reported that in May 2018 alone, Fortnite earned over $318 million, with over $837 million in revenue in the last three months. According to Forbes, the game now earns $1 million a day just on mobile devices. Continue reading “How Video Game Mods Are Changing the Intellectual Property Game”

New Jersey Offer of Judgment Rule: NJ Supreme Court Holds High-Low Agreement Supersedes Plaintiff’s Offer of Judgment

Jonathan M. Korn

On July 19, 2018, the New Jersey Supreme Court, affirming both the trial court and Appellate Division, decided Serico v. Rothberg (A-69-16). In its decision denying Plaintiff’s attempt to recover her attorney’s fees and costs pursuant to New Jersey’s offer of judgment rule (R. 4:58, et seq.), the Supreme Court relied upon basic principles of contract interpretation and reminded all New Jersey lawyers and parties of the risks of relying upon silence and omission when later enforcing one’s rights.

The offer of judgment rule can be an effective tool to encourage settlement, primarily based on the threat that if the case does not settle, the party rejecting the offer may be forced to pay substantial attorney’s fees and costs. Rule 4:58 provides that if a party extends an offer of judgment which is not accepted and the party obtains a money judgment in an amount that is 120 percent or more of the offer, then the offeror would be entitled to seek their costs of the lawsuit, including attorney’s fees. R. 4:58-2(a). A high-low agreement, unlike the offer of judgment rule, does not encourage settlement, but instead limits parties’ risk at trial. As defined by Black’s Law Dictionary, a high-low agreement is “[a] settlement in which a defendant agrees to pay the plaintiff a minimum recovery in return for the plaintiff’s agreement to accept a maximum amount regardless of the outcome at trial.” Continue reading “New Jersey Offer of Judgment Rule: NJ Supreme Court Holds High-Low Agreement Supersedes Plaintiff’s Offer of Judgment”

New Jersey Legal Pulse Named a Top 60 New Jersey Blog

Stephen M. Orlofsky and Jonathan M. Korn

We are pleased to announce that New Jersey Legal Pulse was named a Top 60 New Jersey Blog to follow in 2018.

Blog rankings were based on Google reputation and Google search rankings; influence and popularity on Facebook, Twitter, and other social media sites; quality and consistency of posts; and editorial team and expert reviews. To learn more, please click here.

We are honored to be included in the Top 60 New Jersey Blogs list, and look forward to continuing to provide our readers with timely, relevant, and high-quality legal news and updates.

Appellate Division Holds That Non-Residents of New Jersey Have Right to Request New Jersey’s Public Records

Jaret N. Gronczewski

On May 16, 2018, the Appellate Division approved for publication a decision ruling that citizens from states outside New Jersey also have standing to obtain New Jersey’s public records under the Open Public Records Act (“OPRA”). The opinion—Scheeler v. Atlantic County Municipal Joint Insurance Fund, No. A-2092-15T2—was rendered in connection with three consolidated appeals in which the trial courts below came to conflicting conclusions about the scope of OPRA and who had standing to request documents pursuant to OPRA.

The pivotal language in dispute was the first sentence in the first paragraph of OPRA declaring it to be New Jersey’s public policy that “government records shall be readily accessible for inspection, copy, or examination by the citizens of this State.” N.J.S.A. § 47:1A-1. Despite this seemingly unambiguous language limiting OPRA’s rights to New Jersey citizens, the court disagreed. It rooted its rationale in other more specific sections of OPRA that had no such limiting language, the policy preference to construe the right to access broadly, OPRA’s history and purpose, and the fear of producing an absurd result.

In so holding, the court found that it owed no deference to a 2013 U.S. Supreme Court decision in McBurney v. Young, 569 U.S. 221 (2013) that referenced OPRA as one of several state open records statutes that limited access to citizens of its state. The court found that the U.S. Supreme Court’s reference was dicta and not binding.

Scheeler is an impactful ruling with wide-reaching implications that had amici arguments on both sides. While Scheeler does represent a significant victory for public access, helping entities such as out-of-state news organizations, local New Jersey municipalities appearing as amici feared that this ruling “would place an undue burden on their limited resources.” The Scheeler court recognized the municipalities’ concerns, but it declared that “[c]oncerns about OPRA’s practical ramifications should be directed to the Legislature.” Because of the significant public interest in the court’s holding on this legal issue, the New Jersey Supreme Court may grant certification if a petition is filed.

Judicial Independence in the Age of Trump

Stephen M. Orlofsky

“A bad high school student would understand this.” That is what President Donald J. Trump had to say about the Ninth Circuit, which was charged in Feb. 2017 with determining whether a district court’s order blocking the president’s travel ban should be reversed. Coming less than a month into his presidency, it was just one of many critical comments made by President Trump about the nation’s federal Judiciary since he took office. As the tweeting public knows, the president has criticized federal judges for political bias, and has gone so far as to blame them for future terrorist attacks.

As much as these criticisms may seem unprecedented, friction between the judicial and executive branches of the federal government is not new.

In response to the Supreme Court’s landmark decision in McCulloch v. Maryland, President Thomas Jefferson wrote privately that the judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our constitution from a co-ordination of a general and special government to a general and supreme one alone.”

President Andrew Jackson is reported to have said, “John Marshall has made his decision, now let him enforce it,” regarding an opinion by the Supreme Court on Cherokee Indians. President Franklin Roosevelt is known for having attempted to “pack” the Supreme Court when the justices were not as amenable to his New Deal program as he would have liked.

Even President Barack Obama, a scholar of constitutional law, called out the Supreme Court over its Citizens United decision during his 2010 State of the Union Address.

Despite its disputes with presidents, the federal Judiciary has remained independent since its inception—and, in this author’s view, it will remain so. It is true, never before has a president so vigorously attacked the Judiciary, alleging political bias, or, in the case of Judge Gonzalo Curiel, the inability to be fair because of his “Mexican heritage.” But in the Age of Trump, these types of attacks may be the new normal. While the tone of these attacks on the Judiciary is unprecedented, the U.S. Constitution was designed to ensure that the federal Judiciary remains independent, so it can function, even when under hostile fire by the president or Congress.

To read the full article, please click here.

“Judicial Independence in the Age of Trump,” by Stephen M. Orlofsky was originally published in the June 2018 issue of New Jersey Lawyer, a publication of the New Jersey State Bar Association. Reprinted with permission.

Appellate Division Compels Arbitration of Consumer Fraud and TCCWNA Claims and Dismisses Class Claims

Adrienne C. Rogove

In Griffoul v. NRG Residential Solar Solutions, LLC and NRG Energy, Inc., the Appellate Division recently addressed the validity of an arbitration clause in a lease between the plaintiffs, residents of Elmwood Park and class representatives (“Plaintiffs”), and NRG Residential Solar Solutions (“NRG RSS”) doing business as NRG Home Solar (“NRG Residential”) and NRG Energy, Inc. (“NRG Energy”) (collectively, “Defendants”). A-5535-16T1 (App. Div. May 4, 2018). Plaintiffs filed a class action complaint against Defendants alleging violations of the New Jersey Consumer Fraud Act (“CFA”) and the Truth-in-Consumer Contract, Warranty and Notice Act (“TCCWNA”) based on particular provisions in the lease. The lease required NRG Residential to install solar systems on Plaintiffs’ properties, which would provide electricity to their homes, and which would be connected to the utility’s electrical transmission grid.

Defendants filed a motion to compel arbitration pursuant to an arbitration clause in the lease. In pertinent part, the lease provided:

“[A]ny dispute, disagreement or claim between you and NRG RSS arising out of or in connection with this Lease, or the Solar System…shall be submitted to final and binding arbitration…YOU AND NRG RSS AGREE THAT BY ENTERING INTO THIS LEASE, YOU AND WE ARE WAIVING THE RIGHT TO A JURY TRIAL. IN ADDITION, EACH PARTY MAY BRING CLAMS AGAINST THE OTHER PARTY ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.”

Defendant NRG Energy also moved to dismiss the CFA claim for failure to plead it with particularity as required by Rule 4:5-8(a), and to dismiss the TCCWNA claim on the basis that NRG Energy was not a party to the lease agreement. Continue reading “Appellate Division Compels Arbitration of Consumer Fraud and TCCWNA Claims and Dismisses Class Claims”