A-4977-11t3 Jo Ann Sessner v. Merck Sharp & Dohme Corp.

89 A.3d 191, 435 N.J. Super. 347

• Court: New Jersey Superior Court Appellate Division
• Decided: April 23, 2014
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4977-11T3

JO ANN SESSNER, APPROVED FOR PUBLICATION Plaintiff-Appellant, April 23, 2014 v. APPELLATE DIVISION MERCK SHARP & DOHME CORP.,

Defendant-Respondent. ________________________________________________________________

Submitted February 4, 2014 – Decided April 23, 2014

Before Judges Fisher, Espinosa and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L- 3394-11.

Seeger Weiss, L.L.P. and William F. Cash, III (Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A.) of the Florida bar, admitted pro hac vice, attorneys for appellant (Michael L. Rosenberg, on the briefs).

Hughes Hubbard & Reed, L.L.P., Fox Rothschild, L.L.P., and Paul F. Strain (Venable, L.L.P.) of the Maryland bar, admitted pro hac vice, attorneys for respondent (Eileen Oakes Muskett and Mr. Strain, of counsel and on the brief; Wilfred P. Coronato, on the brief).

The opinion of the court was delivered by

KOBLITZ, J.A.D.

We were on the eve of filing a comprehensive opinion on the many issues raised in this appeal when, on April 9, 2014,

respondent's counsel advised the matter had settled. Upon

further inquiry, we learned the parties reached a settlement

months ago. Despite our discretion to file an opinion when

notified at such a late hour, we have decided not to file our

opinion on the merits and now write to dismiss the appeal with

the emphatic reminder that counsel must advise this court in a

far more timely manner of a settlement or serious settlement

discussions so that scarce judicial resources are not needlessly

wasted.

Jo Ann Sessner appealed from a May 4, 2012 order entering

judgment for respondent Merck Sharp & Dohme Corp. following a

jury verdict finding that respondent, the manufacturer and

distributor of the prescription drug Fosamax, was not

responsible for appellant developing osteonecrosis of the jaw.

Appellant's products liability failure-to-warn and design

defect action sought damages under the Product Liability Act,

N.J.S.A. 2A:58C-1 to -11. This was the second Fosamax Mass Tort

litigation case tried of almost 3200 filed in New Jersey.1 The

record on appeal contained twenty-seven volumes of transcripts,

1 As of April 14, 2014, there are 3198 cases listed on New Jersey's Fosamax mass tort case list. Available at http://www. judiciary.state.nj.us/mass-tort/fosamax/foslist.pdf (last visited April 14, 2014).

2 A-4977-11T3 encompassing more than 4700 pages and four volumes of appendices

totaling more than 600 pages.

The matter was listed on our February 4, 2014 plenary

calendar for disposition without oral argument. Although the

matter settled in January 2014, we were not notified of that

fact until a telephone call on Wednesday, April 9, 2014. The

following day the judiciary website listed the opinion to be

released on Friday, April 11. On April 10 we received a signed

stipulation of dismissal and a letter from respondent's counsel

seeking to prevent the release of the opinion because, in

counsel's opinion, the case was moot. Appellant's counsel then

wrote seeking to dismiss the appeal because, although the

parties had entered into a "binding agreement" that was "not

subject to revocation," there existed a "theoretical chance that

settlement may not be consummated if the panel's opinion is

released." Respondent's counsel agreed that the settlement

"ha[s] been effectuated," and also requested that the opinion

not be issued to avoid "creating additional litigation."

Counsel maintained that a letter was drafted to notify us that

the case was settled, but the letter was never sent. Counsel

stated, "My focus during this last several months has been on

the hundreds of cases in the New Jersey Superior Court in

Atlantic County." Counsel notified the trial court in January

3 A-4977-11T3 2014 that more than two hundred and fifty Fosamax cases had

settled, including appellant's case.

We have previously emphasized in published decisions the

importance of notifying us when a settlement seems imminent. We

have stated "[d]ilatoriness in . . . promptly notifying the

court that [settlement] has occurred reflects not only a lack of

consideration but a lack of concern for the wasted time and

expense thereby incurred." Citizens State Bank v. Schneider,

198 N.J. Super. 518, 519 (App. Div. 1984). More recently, we

reminded the bar of "its obligation, too often disregarded, to

advise us, as expeditiously as possible, of a settlement or

potential settlement of the case." Brown v. Pica, 360 N.J.

Super. 490, 491 (App. Div. 2003) (emphasis added).

In the last Court Term more than 6200 appeals and 8400

motions were filed.2 Some of the appellants are incarcerated and

a favorable result could result in their freedom. In other

cases the welfare of children is at stake. For attorneys in a

civil case in an appeal with a voluminous record to neglect to

notify us of a settlement for four months is unconscionable.

Moreover, appellant's case information statement (CIS)

affirmatively represented to the court that the prospect of

2 Thirty-two judges were assigned to the Appellate Division during the Term.

4 A-4977-11T3 settlement was unlikely. Counsel wrote that he did "not believe

that a [Civil Appeals Settlement Program] conference will aid in

the disposition or handling of the appeal. The case being a

mass tort bellwether trial, settlement appears unlikely."

Despite appellant's counsel's continuing obligation to file an

amended CIS, Rule 2:5-1(f)(2), this representation was never

corrected.

Because of the enormous amount of time needlessly expended

in this matter, we have seriously considered the imposition of

sanctions against both counsel pursuant to Rule 2:9-9, but

instead have determined that the publication of this decision is

sufficient deterrent to repetition. It is within our discretion

to issue an opinion when notified of a settlement shortly before

an opinion is scheduled to be released, and we have done so many

times. We nonetheless dismiss this appeal.

Dismissed.

5 A-4977-11T3