Articles by Daniel Carroll:


Certain Express Misrepresentation Consumer Fraud Act Claims and Product Liability Claims May Coexist According to NJ Supreme Court

In the case on certification from the Third Circuit, the New Jersey Supreme Court ruled that claims for express or affirmative misrepresentations under New Jersey’s Consumer Fraud Act (NJCFA) may be brought simultaneously with claims under the New Jersey Product Liability Act (NJPLA).

In Sun Chemical Corp. v. Fike Corp., plaintiff Sun Chemical Corporation purchased an explosion suppression system from defendant Fike Corporation. The system was to prevent and contain potential explosions in a new dust collection system. On the system’s first day of operation, a fire occurred, and the system’s alarm was activated but inaudible, resulting in an explosion that injured Sun Chemical employees and damaged its facility.

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Whether Asbestos-Containing Components Were Manufactured by Third Parties No Longer Matters in New Jersey

Aligning with neighboring New York, and clearing up conflict within the Appellate Division, the New Jersey Supreme Court ruled equipment manufacturers can be held strictly liable on the basis of failure to warn for asbestos-containing component parts made or supplied by third parties. Whelan v. Armstrong Int’l, Inc., (N.J. 6/3/20).

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Coincidentally Timely – New Jersey Appellate Division’s New Guidance Permitting Remote Testimony at Trial

Over the past two months, the practice of law has shifted to rely heavily on the use of technology. Communication internally, with clients and with the court is almost exclusively conducted via telephone or videoconference. But the New Jersey Court Rules do not provide clear guidance on the use of video testimony at trial — it is not expressly permitted nor is it expressly prohibited, leaving a gap in interpretation and application. Recently in Pathri v. Kakarlamath, A-4657-18T1 (App. Div. Jan. 23, 2020), the New Jersey Appellate Division picked the perfect time to get “plucky and adventury” and considered a party’s request to testify by video. The opinion clarifies that video testimony is acceptable during trial if warranted by exigent circumstances, and sets forth seven factors for courts to consider. Decided only weeks before the state underwent lockdown due to COVID-19, the court’s analysis is timely to say the least.
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The FDA Is in the Doghouse

An unusual pet food case filed this summer in the District Court of Colorado has a pet food manufacturer as the plaintiff rather than a defendant. Lystn, LLC v. FDA, No. 1:19CV01943 (D. Colo. July 5, 2019).

There have been numerous reports of lawsuits involving allegedly contaminated pet food filed against pet food manufacturers or distributors by pet owners claiming that they were deceived by pet food labels and suffered harm either as a result of paying a premium for the food or because their pets were sickened by the food. In contrast, on July 5, 2019, a raw pet food company, Lystn, LLC, brought a civil action against the FDA seeking declaratory and injunctive relief. The complaint challenges the FDA’s ability to enforce what Lystn characterizes as “a nationwide zero-tolerance standard for Salmonella presence in pet food that is unsupported by science and ultra vires of powers properly delegated to it by Congress.”

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Parties Face New Discovery Obligations Under Proposed Rule 30(B)(6) Amendment

A proposed amendment to Federal Rule of Civil Procedure 30(b)(6) – the rule governing deposition notices directed to organizations – seeks to impose a new meet-and-confer requirement on parties.

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New Jersey MCL Update: Three New Consolidated Litigations in New Jersey

August was a busy month for multi-county litigation (MCL) in New Jersey: the Supreme Court of New Jersey designated three new MCLs and terminated one in a matter of just three days. Newly added to the MCL docket are the Physiomesh Flexible Composite Mesh litigation, Zostavax litigation, and Taxotere litigation. Meanwhile, the Pompton Lakes Environmental Contamination litigation has been terminated. Here is a brief update on these four litigations.

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