Category Archives: Litigation Strategies

Why Can’t We Be Friends? — Facebook Account Deletion Cause for Adverse Inference Charge

A Magistrate Judge for the United States District Court of New Jersey recently ruled that a personal injury plaintiff’s deletion of his Facebook account, after it had been the subject of a discovery request, was cause for an adverse inference against the plaintiff. In Gatto v. United Air Lines, et al., the plaintiff claimed a permanent disability resulting from a 2008 accident in which he allegedly suffered injuries including a torn rotator cuff and torn medial meniscus.   In July 2011 during the subsequent litigation,…

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To Call (Two) or Not To Call (Any) Experts: That Is No Longer a Question

The New Jersey Appellate Division recently handed down two decisions that give trial lawyers greater freedom to try their cases when it comes to the selection and presentation of expert testimony. In McLean v. Liberty Health System, A-1793-11, a medical malpractice case, the plaintiff retained two emergency room medical experts to opine that the plaintiff’s ER treatment deviated from the standard of care. The trial court granted the defense counsel’s unwritten and off-the-record request that each side be limited to one expert per specialty.…

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Discovery Conduct Leads to “Death Penalty”

The National Collegiate Athletic Association has the power to ban a school from competing in a sport when they violate NCAA rules, including with regard to recruiting violations.  This is often referred to as the “death penalty” and is rarely enforced because of its severity both in terms of competition lost, cost of penalties and what can amount to millions of dollars in lost revenue.  Similarly, courts have the power to sanction litigants for rule violations.  Sanctions equivalent to the NCAA “death penalty” may have…

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More on Res Ipsa Loquitor

Recently, we discussed an expansion of the doctrine of res ipsa loquitor in New Jersey, as evidenced by the opinion from the New Jersey Appellate Division in the case of Mayer v Once Upon A Rose.  Notwithstanding that decision, a subsequent res ipsa loquitor opinion from the New Jersey Appellate Division has reached what appears to be a confounding result. In Gamez v. St. Edward the Confessor Parish, the plaintiff claimed to have been injured by a cross that fell from a…

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Two Courts Make Abuse of Asbestos Bankruptcy Trust System More Difficult

Two recent decisions suggest that there may be a national trend towards less abuse of the bankruptcy trust system in asbestos litigation.  Because of the long latency period of asbestos-related disease, courts have routinely set up bankruptcy trusts as a mechanism to protect unknown future plaintiffs.  The system also allows otherwise thriving businesses to reorganize without having to defend against a parade of future asbestos lawsuits.  Essentially, a trust is created by a company going through bankruptcy which absorbs all asbestos-related liabilities.  Future plaintiffs are…

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New Jersey Judicial Survey Released

The New Jersey Law Journal recently released its sixth cyclical survey (free registration required) of New Jersey’s trial judges.  While some readers may simply rush out to see where their favorite judges ranked amongst their peers, we know that New Jersey has a great many fine judges.  This survey can be a useful tool for lawyers who may be appearing before a judge for the first time, and can be a resource for lawyers to draw upon when responding to client requests for information about…

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You Better Look Into It: Citrix Hit with Enhanced Damages for Failure to Investigate Possible Patent Infringement.

A federal judge in Texas has added $5 million to a $10 million jury award against Citrix Systems, Inc. after the jury found that Citrix had willfully infringed upon technology patented by SSL Services LLC.  The patent covered data encryption and mutual authentication technology used in software for virtual private networks.  The patent was issued by the U.S. Patent and Trademark Office in 2000. In granting SSL’s motion for enhanced damages, U.S. District Judge Rodney Gilstrap found that Citrix’s “failure to investigate the ‘011 patent…

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New Jersey Facebook Bill Advances and Could Expose Employers to Additional Liability

New Jersey may soon join the ranks of other states that prohibit or seriously limit an employer’s right to request a current employee or applicant’s password, username, or similar information to social media websites such as Facebook. Unfortunately, the proposed New Jersey legislation as currently written will provide applicants and current employees with a potential new cause of action to assert against companies. S-1915, otherwise known as the “Facebook Bill,” has advanced through the Senate Labor Committee. Although well-intentioned to protect privacy, it contains a…

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New Jersey Facebook Bill Advances and Could Expose Employers to Additional Liability

New Jersey may soon join the ranks of other states that prohibit or seriously limit an employer’s right to request a current employee or applicant’s password, username, or similar information to social media websites such as Facebook. Unfortunately, the proposed New Jersey legislation as currently written will provide applicants and current employees with a potential new cause of action to assert against companies. S-1915, otherwise known as the “Facebook Bill,” has advanced through the Senate Labor Committee. Although well-intentioned to protect privacy, it contains a…

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NY Court Rejects Joint and Several Allocation Amongst Insurers of Asbestos Defendant

In McKinley Ins. Co. v. Corning, Inc. (No. 602454/02, N.Y. Co. Sup. Ct.), the New York County Supreme Court recently held that defense and indemnity costs should be allocated among insurers of an asbestos defendant on a pro rata, rather than a joint and several, basis. Corning was covered by numerous primary, umbrella, and excess insurance policies from 1962 to 1985.  Several of the insurers moved for summary judgment, seeking a declaration of the proper method of allocation of responsibility for indemnity and defense amongst…

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