Sessner v. Merck Sharp & Dohme Corp., 435 N.J. Super. 347 (App. Div. 2014). “Dilatoriness 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). Today’s opinion by Judge Koblitz, in a Fosamax mass tort case that went to a jury verdict and generated an appellate record of over 4,700 pages of trial transcript and more than 600 pages of appendices, is what she called an “emphatic reminder” of that principle.
The appeal was listed on the panel’s February 4, 2014 calendar for disposition without oral argument. Unbeknownst to the panel, however, the parties had settled the appeal in January 2014. The panel was literally “on the eve of filing a comprehensive opinion on the many issue raised in this appeal when, on April 9, 2014, respondent’s counsel advised the matter had settled.” On April 10, the Judiciary website listed the panel’s opinion among those that were to be released on April 11. Counsel for both sides then wrote to the Appellate Division urging that the opinion not be released, in order not to prejudice the settlement. Counsel represented that a letter had previously been drafted to advise the Appellate Division that the case had been settled, but the letter was never sent. The parties did, however, notify the trial judge in January 2014 that this case and over 250 other Fosamax cases had settled.
Especially given the caseload of the 32 Appellate Division judges (Judge Koblitz observed that more than 6,200 appeals and over 8,400 motions were filed in the last Term of the Appellate Division), “[f]or 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.” Because of the huge amount of time and effort that the panel had devoted to this matter, unnecessarily, “we have seriously considered the imposition of sanctions against both counsel pursuant to R. 2:9-9, but instead have determined that the publication of this decision is a sufficient deterrent to repetition.” The panel thus withheld its merits opinion and dismissed the appeal.
One other thing noted by Judge Koblitz warrants mention. She observed that the appellant’s Case Information Statement had stated that referral to the Civil Appeals Settlement Program was not warranted because “[t]he case being a mass tort bellwether trial, settlement appears unlikely.” The appellant’s failure to update that statement, as required by Rule 2:5-1(f)(2), was yet another reason why the panel was critical of the parties’ failure to notify the Appellate Division of the settlement, or the potential for settlement, in timely fashion. The duty to update the CIS is not often noted, but it has teeth, as evidenced by this opinion.