Appellate

Clients and industry groups have called upon McCarter to represent them on appeal in many of the country’s leading products liability cases.

McCarter has for years taken the lead in developing appellate issues in the asbestos, mass tort and products litigations generally. We have served as appellate counsel for several Fortune 100 clients to assist at trial and address appellate issues as necessary. We have briefed and argued on appeal issues involving such complex areas as:

product non-identification
third generation liability
application of tort reform statutes to toxic exposure cases
apportionment of liability between concurrent causes of injury
legal proximate causation in failure-to-warn cases
the admission of expert testimony
medical causation

We have acted as amicus counsel for a number of interested parties in the New Jersey litigation on issues involving apportionment, the proof of cross claims and the admission of “company witness” testimony at trial and deposition.

McCarter has been involved in decisions that have directly shaped the course of asbestos and toxic tort litigation and developed appellate strategies to assist in changing the law in jurisdictions nationwide including Illinois and California.

Successfully obtained an affirmance of summary judgment for our client on several grounds in a hernia mesh MCL case.

Represent a multinational company and its subsidiary as appellate counsel in a New Jersey state court MCL related to a medical device, which involves advising on preserving issues for appeal, dispositive motion briefing, and general litigation and appellate strategy.

Presented oral argument in the NJ Supreme Court on whether the US Supreme Court's decision in Kindred Nursing overruled New Jersey's common law rule that for an arbitration provision in a contract to be enforceable, the provision must inform the parties that they are giving up the right to have a judge and a jury decide their case. Kernahan v. Home Warranty Adm'r of Fla., Inc., 236 N.J. 301 (2019)

Successfully opposed petition for certification to Supreme Court of New Jersey following the Appellate Division’s affirmance of summary judgment for our client.

Served as appellate counsel for a Fortune 50 pharmaceutical and medical device company in a product liability case involving hernia mesh in the New Jersey Appellate Division. Tabor v. Johnson & Johnson, 2019 WL 7168666 (App. Div. December 24, 2019)

Presented oral argument in the New Jersey Supreme Court on whether a class should be certified under the state's Truth in Consumer Contract, Warranty, and Notice Act. Spade v. Select Comfort Corp., 232 N.J. 504 (2018)

Played a lead role in the New Jersey Supreme Court In Re Accutane decisions, which were highlighted by Law360 in its “Top Cases of 2018." As counsel to amici curiae the Health Care Institute of New Jersey, New Jersey Business and Industry Association, Commerce and Industry Association of New Jersey, and New Jersey State Chamber of Commerce, successfully argued before the New Jersey Supreme Court that labels on the acne drug Accutane were adequate under New Jersey law; and that the state should adopt the Daubert factor-based approach for determining the admissibility of expert testimony. This landmark case changed New Jersey law on expert admissibility, and the Supreme Court’s decision relied upon and cited McCarter’s argument. Also briefed and successfully argued in McCarrell v. Hoffmann-La Roche that New Jersey’s two-year statute of limitations should apply in products cases involving a prescription medicine. In Re: Accutane Litigation, 235 N.J. 229 (2018); In Re: Accutane Litigation, 234 N.J. 340 (2018); McCarrell v. Hoffmann-La Roche, Inc., 227 N.J. 569 (2017)

Presented oral argument in the NJ Supreme Court on whether a consumer must have sustained tangible harm by the alleged violation of New Jersey's Truth in Consumer Contract, Warranty, and Notice Act to maintain a cause of action. Dugan v. TGI Fridays, Inc., 231 N.J. 24 (2017)

Counsel for amici curiae New Jersey Lawsuit Reform Alliance and Healthcare Institute of New Jersey in appeal concerning impact of New Jersey’s statutory presumption of adequacy of FDA-approved warnings on statute of limitations analysis. Kendall v. Hoffmann-La Roche, Inc., 209 N.J. 173 (2012)

Represented a manufacturer of power tools and hardware in an appellate case in the United States Court of Appeals for the Third Circuit in which the plaintiff claimed that injuries suffered while using the client’s product were caused by defects with the product and that the product was sold with inadequate warnings. The Third Circuit ruled that the District Court erred in excluding evidence of lack of prior accidents, vacated the lower courts ruling, and remanded the case for a new trial. Harold v. Black & Decker U.S., Inc., 295 F.App’x 530 (3rd Cir. 2008)

Lead counsel for amicus curiae Healthcare Institute of New Jersey. Rowe v. Hoffman-La Roche, Inc., 189 N.J. 615 (2007)

Represented a manufacturer of power tools and hardware in a product liability appeal in New Jersey in which the Appellate Court affirmed the decision of the lower court, finding that the product in question did not contain defects and the manufacturer provided adequate warnings and instructions. Marino v. Sears, Roebuck & Co., 2006 WL 3903970 (App. Div. December 29, 2006)

Counsel for amicus curiae in the appeal of Feldman v. Lederle Laboratories in the New Jersey Appellate Division, which held that drug manufacturers should not be liable for failing to warn of a side effect that was unknown when the drug was sold. Feldman v. Lederle Laboratories, 97 N.J. 429 (1984)

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