Appellate

Amicus curiae—New Jersey Supreme Court

Represented amicus curiae in an insurance coverage case in the Supreme Court of New Jersey, arguing the losses due to COVID-19 are covered under insurance policies. AC Ocean Walk v. American Guarantee et al, 256 N.J. 294 (2024)

New Jersey business associations—New Jersey Supreme Court

Argued before the New Jersey Supreme Court on behalf of amici curiae the New Jersey Business and Industry Association, the New Jersey Chamber of Commerce, and the Commerce and Industry Association of New Jersey in an important case involving remedies under the New Jersey Consumer Fraud Act. The Court adopted McCarter’s position that Plaintiffs in NJ Consumer Fraud Act cases are not entitled to a refund of the payments made to the Defendant. DeSimone v. Springpoint Senior Living, Inc., 256 N.J. 172, 306 A.3d 1276 (2024)

Multinational appliance manufacturer—Consumer class action defense

Defended a multinational appliance manufacturer  in a New Jersey federal court which alleged that certain washing machines manufactured by our client were improperly marketed as Energy Star-qualified. Successfully moved to dismiss plaintiff’s state law claims alleging deceptive marketing, arguing that those legal claims are pre-empted by federal regulation. The Third Circuit later upheld the decision. Dzielak v. Whirlpool Corp., 83 F.4th 244 (3d Cir. 2023)

Medical device manufacturer—Defense verdict and Second Circuit win 

Obtained a victory for a medical device manufacturer in the US Court of Appeals for the Second Circuit, with the appellate court affirming the lower court’s ruling in a breach of contract case. Our team also served as trial counsel in the Southern District of New York, obtaining a complete defense verdict. The plaintiff alleged that the client failed to fulfill its obligations under two agreements between the parties related to the development of a next generational medical device, and sought damages in excess of $8 million.

Healthcare laboratory company—Third Circuit appellate win

Represented a healthcare laboratory company in connection with a plaintiff’s appeal of an order from the US District Court for the District of New Jersey dismissing the plaintiff’s complaint for personal injury and professional malpractice against the client and other hospital and public entity defendants. The Third Circuit affirmed the dismissal in all respects.

Multinational pharmaceutical & consumer goods company—Appellate victory

Secured a reversal of a more than $100 million verdict for a multinational pharmaceutical, medical device, and consumer goods company in a case in which the plaintiff alleged that he developed cancer after long-term exposure to asbestos in talcum powder-based products. The appellate court found that the testimony of two of the plaintiffs’ experts was improper and warranted a new trial.

Multinational consumer goods company—Third Circuit win

Represented a multinational consumer goods company in an appeal before the Third Circuit. The Court affirmed the decision of the District Court that plaintiff’s claim was barred by North Carolina’s statutes of repose. Bond v. Johnson & Johnson et al, 2022 WL 4594185 (3d Cir. 2022)

Amicus curiae—Third Circuit appeal

Represented amicus curiae in case in the Third Circuit in which McCarter argued that certain COVID-19 restrictions imposed by the Governor of Pennsylvania were unconstitutional. Cty. of Butler v. Governor of Pennsylvania, 8 F.4th 226 (3d Cir. 2021), cert. denied, 142 S. Ct. 772 (2022), US, 2022 WL 89363 (2022)

Regional medical center—Third Circuit win

Represented a regional medical center in a lawsuit brought by a surgeon over restrictions the center placed on his privileges. The District of New Jersey granted summary judgment in favor of our client and the Third Circuit affirmed the decision, finding that the physician did not show that our client’s actions violated federal antitrust law or were discriminatory.

Medical device company—Appellate win

Represented a medical device company in a personal injury product liability case, arguing that the lower court verdict rendered in favor of the plaintiff should be reversed because the defendant was not allowed at trial to offer evidence that the product had obtained FDA 510k clearance. The Supreme Court reversed the verdict in favor of the defendant. Hrymoc v. Ethicon, Inc., 467 N.J. Super. 42, 249 A.3d 191 (App. Div. 2021), certif. granted, NJ (2021)

Multinational pharmaceutical & consumer goods company—Appellate victory

Secured a reversal at the New Jersey Appellate Division of a significant trial court verdict in a mesothelioma case for a multinational pharmaceutical company. The appeals court ruled that errors in admission of expert testimony warranted overturning the original verdict.

Medical device manufacturer—Appellate counsel in New Jersey pelvic mesh MCL

Responsible for appellate strategy and briefing for a multinational medical device manufacturer involved in the pelvic mesh multi-county litigation, including in an appeal involving two issues of first impression for New Jersey appellate courts.

Fortune 50 medical device company—Appellate counsel 

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

Fortune 50 medical device company—Appellate counsel in New Jersey MCL

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.

Building products manufacturer—Appellate counsel

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

Amici curiae—Personal injury appeal

Represented amici curiae in the appeal of a personal injury case in which a bus passenger was injured due to the actions of another passenger. McCarter argued that under the New Jersey Tort Claims Act there should be allocation of fault between the defendant bus company and the injuring passenger. The Supreme Court adopted McCarter’s position. Maison v. New Jersey Transit Corp., 245 N.J. 270 (2021)

Employer—Wage and hour appeal

Represented an employer in the appeal of a wage and hour class action before the Supreme Court of New Jersey, arguing that the employer was immune from liability based on certain provisions in the New Jersey Wage and Hour Act. Branch v. Cream-O-Land Dairy, 244 N.J. 567 (2021)

Amicus curiae—Mortgage foreclosure appeal

Represented amicus curiae in the appeal of a mortgage foreclosure proceeding in the Supreme Court of New Jersey. McCarter argued that the assignee of the mortgage could enforce the mortgage and note even though those instruments were lost and not available to the plaintiff. Investors Bank v. Torres, 243 N.J. 25 (2020)

New Jersey Supreme Court—Amicus Curiae

Counsel for amici curiae the New Jersey Business and Industry Association, the New Jersey Chamber of Commerce, and the Commerce and Industry Association of New Jersey in an appeal concerning the enforceability of an electronic arbitration agreement. Skuse v. Pfizer, Inc., New Jersey Supreme Court, Docket No. A-86 September Term 2018, 082509, (2020)

Fortune 50 pharmaceutical and medical device company—Appellate counsel

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)

Amicus curiae—NJ Supreme Court appeal

Represented amicus curiae in the appeal of an automobile accident case which involved the standard for remittitur or additur. McCarter argued that the proper standard for a remittitur or additur is the amount a reasonable jury, properly instructed, would have awarded. The New Jersey Supreme Court adopted McCarter’s position. Orientale v. Jennings, 239 N.J. 569 (2019)

New Jersey Supreme Court—Amicus curiae

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)

Amicus curiae—Legal malpractice appeal

Represented amicus curiae in a legal malpractice appeal involving a resident of Pennsylvania who brought the action in New Jersey. McCarter argued that Pennsylvania’s two-year statute of limitation rather than New Jersey’s six-year statute of limitations should apply and the Court adopted McCarter’s position. MTK Food Services, Inc. v. Sirius America Insurance Company, et al., 455 N.J. Super 307 (App. Div. 2018)

New Jersey Supreme Court—Amicus curiae

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)

Amicus curiae—Product liability appeal

Represented amicus curiae in the appeal of a personal injury, product liability case brought in New Jersey by an Alabama resident. McCarter argued that the Alabama statute of limitations should be applied and that plaintiff’s claim was barred by the Alabama statute of limitations. McCarrell v. Hoffmann-La Roche, Inc., 227 N.J. 569 (2017)

New Jersey Supreme Court—Amicus curiae

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)

New Jersey Supreme Court—Amicus curiae

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)

Amici curiae—Employment appeal

Represented amici curiae in an employment appeal at the New Jersey Supreme Court. The action was action brought by an employee alleging violation of the Conscientious Employee Protection Act (CEPA). McCarter argued that employees who had responsibility to act as “watch dogs” in policing the conduct of their employer should not be covered by CEPA. Lippman v. Ethicon, Inc., 222 N.J. 362 (2015)

Appliance manufacturer—Product liability appeal

Represented an appliance manufacturer in an appeal of a product liability wrongful death case. McCarter argued that the plaintiff could not assert a claim for emotional damages as a result of observing the death of his son following an accident. Litwin v Whirlpool Corp., 436 N.J. Super. 80 (App. Div. 2014)

Amicus curiae—Product liability appeal

Represented amicus curiae in the appeal of a personal injury product liability mass tort case. The New Jersey Appellate Division adopted McCarter's argument that the Trial Court erred when it barred the defendant manufacturers from consulting with or retaining as an expert witness any physician who had at any time treated one or more of the patients in the mass tort. In re Pelvic Mesh/Gynecare Litigation, 426 N.J. Super. 167 (App. Div. 2012)

New Jersey Lawsuit Reform Alliance—Amicus curiae

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)

Power tool manufacturer—Third Circuit appellate victory

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)

Amicus curiae—Class action appeal

Represented amicus curiae in the appeal of a class action alleging violation of wage and hour statutes, arguing that class certification should not have been granted. IIiadis v. Wal-Mart Stores, Inc., 191 N.J. 88 (2007)

Amicus curiae—New Jersey Consumer Fraud Act appeal

Represented amicus curiae in the appeal of a class action brought by third-party payors of healthcare benefits plans alleging violation by a pharmaceutical manufacturer of the New Jersey Consumer Fraud Act. McCarter argued that the case should not be certified as a class action and the Supreme Court agreed with that argument. International Union of Operating Engineers Local No. 68 Welfare Fund v. Merck & Co., Inc., 192 N.J. 372 (2007)

Healthcare Institute of New Jersey—Amicus curiae

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

Power tool manufacturer—Appellate counsel

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)

Insurance company—Insurance coverage appeal

Represented an insurance company in an appeal at the Third Circuit of an insurance coverage action brought by the plaintiff seeking to recover under two policies of disability insurance. McCarter argued that plaintiff’s claim was barred by the proof of loss provision in the policy. Knoepfler v. Guardian Life Ins. Co. of Am., 438 F.3d 287  (3d Cir. 2006)

Amici curiae—New Jersey Supreme Court

Represented amici curiae in a personal injury case before the Supreme Court of New Jersey. The Court adopted the position taken by McCarter that a jury is required to apportion fault to a non-party who had been discharged in bankruptcy. Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102 (2004)

Retail store—Personal injury appeal

Represented a retail store in a personal injury appeal before the New Jersey Appellate Division, arguing that the intentional wrong exception to the workers’ compensation exclusive remedy provision applied to an employee who was injured during a robbery in his employer’s parking lot. Fisher v. Sears, Roebuck & Co., 363 N.J. Super 457 (App. Div. 2003)

Retail company—Insurance coverage appeal

Represented a retail store in an insurance coverage appeal. McCarter argued that an automobile repair contractor was covered under the vendor’s endorsements of policies issued to manufacturers of brake calipers and pads. McCarter also argued that the compulsory automobile insurance statutes required that the repair contractor be covered by the insurer of the automobile being repaired. Sears Roebuck and Co. v. National Union Fire Ins. Co. of Pittsburgh, PA, 340 N.J. Super. 223 (App. Div. 2001)

Insurance company—Appellate win

Represented an insurance company in a case involving a group life insurance policy. The New Jersey Appellate Division held that the group life insurance policy’s provision stating that supplemental accidental death benefits were not convertible was enforceable. Gamino v. General American Life Ins. Co., 288 N.J. Super. 125 (App. Div. 1996)

Life insurance company—Insurance coverage appeal

Represented a life insurance company in the appeal of an insurance coverage case involving a life insurance policy at the New Jersey Supreme Court. The Court adopted McCarter's position that when an insured on a life insurance policy makes misstatements as to his health, the policy can be rescinded even if the insured did not have an actual intent to deceive the insurer. Massachusetts Mut. Life Ins. Co. v. Manzo, 122 N.J. 104 (1991)

Manufacturing company—Product liability appeal

Represented a manufacturer in a personal injury, product liability appeal. The plaintiff was injured during his service in the National Guard. The Supreme Court of New Jersey adopted McCarter’s position that the plaintiff could sue a fellow guardsman for injuries sustained in the accident. Phillips v. State, Dept. of Defense, 98 N.J. 235 (1985)

New Jersey Supreme Court—Amicus Curiae

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)