Mark’s Case

Earlier this month, the New Jersey Superior Court, Appellate Division, handed down an unpublished decision in Buttitta v. Allied Signal, Inc., Nos. A-5263-07T1 and A-5268-07T1 (April 5, 2010).  For now, the decision is available on-line at:

The Buttitta decision addresses several important issues in asbestos and other mass tort litigation, including 

  • the quality and quantum of evidence needed for product identification, 
  • the evidence needed to support plaintiff’s claim that a particular product caused harm, 
  • the adjudication of cross claims and the availability of offsets to judgments for the liability of settled defendants, 
  • the reliability of expert witness opinion testimony, and 
  • the nature of evidence to support claims of medical causation of a disease that has a low threshold of sufficient exposure, but no clear mechanism of causation.

 Mr. Mark Buttitta died of mesothelioma.  In 2008, a jury in Bergen County, New Jersey, returned a verdict of over 30 million dollars for his widow and children.  The judgment defendant’s appeal was rejected on all grounds by the Appellate Division.

 Every mesothelioma case, from whatever cause, is a tragedy.  The clinical course of this cancer leaves the patient with few effective therapies, and much pain and discomfort.  Regardless of the legal issues involved, the lawyers and judges involved in adjudicating such cases would be inhuman not to have sympathy for the mesothelioma patient and his family.

 A disinterested observer however, in reading the Buttitta decision, might well believe that the Appellate Division went beyond sympathy to adopt a tone of excessive familiarity with Mr. Buttitta by referring to him by his first name, throughout the unpublished opinion.  In many courtrooms around the country, lawyers would be rebuked for addressing a party or witness by his or her first name, but in the Buttitta case, the Court referred to the late Mr. Buttitta as “Mark,” over 70 times.  Such familiarity seems out of place in what serves institutionally as the Court’s public statement of reasons for affirming or reversing judgments.  Indeed, such familiarity seems inconsistent with the Court’s impartiality, and the need to avoid the appearance of impropriety.  The public may wonder why a Court on such familiar terms with a litigant is involved in deciding issues of such importance to that party, the adverse parties, and to the public generally.

 There is much that can and likely will be said about the Appellate Division’s decisions and its reasoning in the Buttitta case.  The style of the Court’s expression, and its familiarity with the plaintiff’s late husband, should raise a concern over the decorum in New Jersey’s courts, from all sides to the controversy.

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