I. PROFESSIONAL LIABILITY

Questions Posed During Deposition to a Plaintiff by an Attorney Representing a Defendant are Protected by the Litigation Privilege.

In Rabinowitz v. Wahrenberger, 406 N.J.Super 126 (A.D. March 20, 2009), Andrew and Phyllis Rabinowtiz filed suit seeking damages on the theory of outrage and intentional and negligent infliction of emotional distress against Judith Wahrenberger, the attorney who represented Lynn Reyman, M.D., in plaintiffs' underlying suit against Dr. Reyman.

The underlying case arose from the death of plaintiffs' daughter, Rebecca Rabinowitz. On July 13, 2006, Rebecca Rabinowitz was born prematurely and suffered from some respiratory distress at birth and remained hospitalized until July 18, 2006. On July 19, 2006, plaintiffs took Rebecca to the emergency room when she again appeared to be in respiratory distress. At the emergency room, Rebecca was seen by Lynn Reyman, M.D., who did not re-admit her to the hospital despite her parents' protests. They returned home with the baby who died two days later on July 21, 2006, after suffering a massive nose bleed.

In January 2007, plaintiffs, represented by Bruce Nagel, Esq., of Nagel Rice, commenced suit against Dr. Reyman. Dr. Reyman was represented in that suit by Judith Wahrenberger, Esq., of Wahrenberger, Pietro & Sherman. Plaintiffs alleged that Dr. Reyman was negligent when she did not admit the baby to the hospital and that her negligence was a proximate cause of the infant's death.

On June 7, 2007, Ms. Wahrenberger deposed Andrew and Phyllis Rabinowitz on behalf of her client, Dr. Reyman. During the deposition of Mr. Rabinowitz an exchange occurred with Wahrenberger initially asking why the police were called after the baby's death and Mr. Rabinowitz answering that he "suspected a murder." In further responses to Wahrenberger's questions, Mr. Rabinowitz responded that, as a parent and not as an attorney, he suspected defendants had committed negligent homicide in failing to provide proper treatment to his infant daughter. Wahrenberger continued the line of questioning, asking whether Mr. Rabinowitz thought the baby nurse hired by Ms. Rabinowitz was involved and then whether he thought his wife was involved in negligent homicide. Nagel objected to the line of questioning. When Wahrenberger referenced the possibility of child abuse, Nagel stated that he would end the deposition if the line of questioning continued. The deposition then continued without further incident.

The following month, plaintiffs filed the instant complaint against Ms. Wahrenberger and her firm. In the first count, they referred to the deposition sequence set forth above as "outrageous and inhumane" and "so reprehensible, despicable, nasty, venomous, malevolent and horrid as to violate the most basic foundation of humanity and decency." They sought damages on the theory of outrage. In the second count, plaintiffs sought damages for either intentional or negligent infliction of emotional distress. They alleged that defendant Wahrenberger had "intentionally elected to humiliate, embarrass, insult, and inflict the most grievous emotional distress" and that her "black-hearted attack" had been "calculated to cause severe emotional distress, humiliation, and offended all norms of civilized behavior and decency."

In lieu of filing an answer, defendants, through counsel, Elliott Abrutyn, Esq., of Morgan Melhuish Abrutyn, filed a motion to dismiss this complaint for failure to state a claim. Plaintiffs opposed the motion and cross-moved to disqualify the attorneys representing defendants.

The trial court denied plaintiff's motion to disqualify defendants' attorney and granted defendants' motion to dismiss. The court relied on the litigation privilege, recognizing that the litigation privilege "has long been embedded in New Jersey's jurisprudence." The court described the litigation privilege as "indispensable" and said that "[t]he public policy rationale for the litigation privilege has not changed in half a millennium."

The court noted that the litigation privilege is applicable to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. The only limitation which New Jersey places upon the privilege is that the statements at issue "have some relation to the nature of the proceedings."

Depositions are an integral part of pretrial proceedings. The court held that counsel must be free at a deposition to explore and probe the claims that have been asserted against his or her client. To expose the attorney to the risk of litigation on the basis of such questioning would subvert the underlying policy of the litigation privilege and would be antithetical to the views repeatedly expressed by our Supreme Court.

In this case, plaintiff Andrew Rabinowitz stated at his deposition that he suspected criminal wrongdoing in connection with the death of his child. That Mr. Rabinowitz may have been distraught and enraged at this loss of his does not mean that he is entitled to have his statements go unquestioned. The court opined that defendant Wahrenberger would have been derelict in her duties to her own client if she had not questioned him about his statement that his child's death was due to what he termed negligent homicide. As such, the appellate panel found the trial court was correct in concluding that plaintiffs' complaint should be dismissed.

II. PRODUCTS LIABILITY

National Childhood Vaccine Injury Act Preempts All Design Defect Claims Against the Manufacturer of a Vaccine.

In Bruesewitz v. Wyeth, Inc., --- F.3d ---, 2009 WL 792468 (3d Cir. (Pa.) March 27, 2009), parents of minor who allegedly suffered a seizure after receiving dose of diphtheria-pertussis-tetanus (DPT) vaccine brought products liability action against vaccine manufacturer after rejecting judgment of United States Court of Federal Claims. Manufacturer filed motion for summary judgment. The Court for the Eastern District of Pennsylvania, granted the motion, and parents appealed. The significant question presented in the appeal was whether the National Childhood Vaccine Injury Act ("Vaccine Act") preempts all design defect claims against the manufacturer of a vaccine.

The District Court held that the Act preempted all design defects arising from a vaccine-related injury or death. The District Court rested this decision on four points. First, it stated that a case-by-case consideration of whether a vaccine was unavoidably safe would not protect vaccine manufacturers from suit. Second, it reasoned that Congress passed the Vaccine Act to "provide an umbrella under which manufacturers would improve the safety of their products while remaining immune from design defect claims." Third, the Court found that Congress achieved an appropriate balance by offsetting the effect of the preemption of design defect claims with creation of a compensation program for individuals injured by vaccines. Finally, it concluded that the Vaccine Act preempts both strict liability and negligent design defect claims against FDA-approved vaccines.

On the issue of preemption, the Vaccine Act provides "No State may establish or enforce a law which prohibits an individual from bringing a civil action against a vaccine manufacturer for damages for a vaccine-related injury or death if such civil action is not barred by this part." 42 U.S.C. § 300aa-22. The Third Circuit analyzed the scope and reach of the express preemption provision. The court evaluated the language, structure, and purpose of the Vaccine Act to ascertain whether it preempts all design defect claims. The focus was on the phrase "if the injury or death resulted from side effects that were unavoidable ...." § 300aa-22(b). The phrase hinges on the word "unavoidable," yet the term is not defined in the Vaccine Act. Nor did the surrounding language answer questions such as whether all design defect claims are preempted or whether state courts may determine avoidability on a case-by-case basis.

The Third Circuit considered the case American Home Products. Corp. v. Ferrari, 668 S.E.2d 236 (Ga.2008). There, the Georgia Supreme Court held that alleged victims of vaccine side effects have a right to review of whether the side effects were truly "unavoidable." The Circuit Court did not consider the Ferrari Court's reading to be compelling, stating "we think the Ferrari Court's construction is contrary to the structure of the Act because it does not bar any design defect claims. If we interpret the Vaccine Act to allow case-by-case analysis of whether particular vaccine side effects are avoidable, every design defect claim is subject to evaluation by a court." The court further stated that the Ferrari Court's construction of § 300aa-22 "could create an awkward dichotomy in the case law of these states - their courts would be required to engage in case-by-case analysis of all strict liability and negligent design defect claims brought under the Vaccine Act, while barring strict liability design defect claims against prescription drug manufacturers." The court found that Congress could not have intended such a result.

The court went on to determine whether the Vaccine Act preempts only strict liability design defect claims or also those based in negligence. The court found that there is some inherent ambiguity in the statute and resorted to legislative history to resolve that ambiguity. The court held that "the structure and purpose of § 300aa-22 of the Act make clear that Congress intended to preempt some design defect claims. The legislative history identifies the scope of this preemption, which encompasses both strict liability and negligent design defect claims."

The court upheld the District Court decision based on the Vaccine Act's preemption of all design defect claims brought under state law tort.

III. EMPLOYMENT LAW

Collective Bargaining Agreements that Require Union Members to Arbitrate Age Discrimination in Employment Act Claims are Enforceable.

In 14 Penn Plaza v. Pyett, 129 S.Ct. 1456 (April 1, 2009), longstanding employees in commercial office building were reassigned from positions as night watchmen to less desirable positions as night porters and light duty cleaners. The employees alleged that these reassignments led to a loss in income, other damages, and were otherwise less desirable than their former positions. The employees were members of the Service Employees International Union. Under the National Labor Relations Act, the Union is the exclusive bargaining representative of employees within the building-services industry in New York City, which includes building cleaners, porters, and doorpersons. The Union had exclusive authority to bargain on behalf of its members over their "rates of pay, wages, hours of employment, or other conditions of employment," and engaged in industry-wide collective bargaining with the Realty Advisory Board on Labor Relations, Inc. (RAB), a multiemployer bargaining association for the New York City real-estate industry. The agreement between the Union and the RAB is embodied in their Collective Bargaining Agreement (CBA).

The employees asked the Union to file grievances alleging, among other things, that petitioners violated the CBA's ban on workplace discrimination by reassigning respondents on the basis of their age in violation of Age Discrimination in Employment Act of 1967 (ADEA). The defendants filed a motion to compel arbitration in accordance the CBA. The CBA at issue requires union members to submit all claims of employment discrimination to binding arbitration under the CBA's grievance and dispute resolution procedures. Both the federal court and the U.S. Court of Appeals for the Second Circuit ruled that no union-negotiated arbitration agreement requiring arbitration of ADEA claims is enforceable. Certiorari was granted.

The Supreme Court examined the two federal statutes at issue, the ADEA and the National Labor Relations Act (NLRA). The court found that the Union and the RAB, negotiating on behalf of 14 Penn Plaza, collectively bargained in good faith and agreed that employment-related discrimination claims, including ADEA claims, would be resolved in arbitration. The court noted that a union may agree to the inclusion of an arbitration provision in a collective-bargaining agreement in return for other concessions from the employer, and courts generally may not interfere in this bargained-for exchange. Thus, the CBA's arbitration provision must be honored unless the ADEA itself removed this particular class of grievances from the NLRA's broad sweep. Since the Supreme Court has unequivocally held that the ADEA does not preclude arbitration of claims brought under the statute, there was no legal basis for the Court to strike down the arbitration clause in the CBA, which was freely negotiated by the Union and the RAB, and which clearly and unmistakably requires respondents to arbitrate the age-discrimination claims at issue in this appeal.

The Supreme Court also held that the CBA's arbitration provision is fully enforceable under the Gardner-Denver line of cases. The court found that the employers incorrectly interpreted the 1974 case and its progeny as holding that an agreement to arbitrate ADEA claims provided for in a collective-bargaining agreement cannot waive an individual employee's right to a judicial forum under federal antidiscrimination statutes. The majority also said that Gardner-Denver cases were not applicable to the case at hand as they "do not control the outcome where, as is the case here, the collective bargaining agreement's arbitration provision expressly covers both statutory and contractual discrimination claims."