Petition for Writ of Certiorari — Carl Lawson, et ux., Petitioners v. Bell Sports USA

Supreme Court briefDec 6, 2018

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No. _________

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In The

Supreme Court of the United States

-----------------------------------------------------------------CARL LAWSON and GLORIA LAWSON,

Petitioners,

BELL SPORTS USA,

Respondent.

-----------------------------------------------------------------On Petition For Writ Of Certiorari

To The Supreme Court Of New Jersey

-----------------------------------------------------------------PETITION FOR WRIT OF CERTIORARI

-----------------------------------------------------------------G. MARTIN MEYERS, ESQ.

Counsel of Record

SUSAN S. SINGER

LAW OFFICES OF

G. MARTIN MEYERS, P.C.

35 West Main Street, Suite 106

Denville, New Jersey 07834

(973) 625-0838

gmm@gmeyerslaw.com

Attorneys for Petitioners

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

QUESTIONS PRESENTED

This Court has made it clear that, where interactions between citizens and State actors directly impact

issues relating to life, liberty, and property, the right to

a hearing guaranteed by the Fourteenth Amendment’s

Due Process Clause is an expansive one, encompassing

all forms of hearings as well as conferences. However,

the Court has never specifically considered the extent

to which the right to participate in a conference is protected by the Due Process Clause, when the “State actor” is a State court, and the conference at issue is

mandated by a State court’s own rules.

The Court has also made clear when the opportunity for live testimony of critical witnesses is required

by the Due Process Clause in State court criminal proceedings, to assure that a defendant receives a hearing

“appropriate to the case.” However, the Court has

never considered the question of when the opportunity

to present live testimony is required in a State court

civil action, or what other factors need to be considered

to assure that State court civil litigants receive a hearing “appropriate to the case.”

This petition provides the opportunity for the

Court to address these important issues, by considering the following questions:

1. Whether the Fourteenth Amendment’s Due

Process Clause prohibits a State court from directly violating one of its own court rules, by failing to provide

QUESTIONS PRESENTED – Continued

the litigants in a civil action the opportunity to participate in conferences which a State court rule mandates

be provided to them, with respect to issues material to

the claims involved.

2. Whether the litigants in a State court civil action fail to receive a hearing “appropriate to the case,”

as required by the Fourteenth Amendment’s Due Process Clause, when they are arbitrarily denied the benefits of a court rule intended to provide them with a

fair opportunity to present the live testimony of a critical witness at the time of trial, and as a result of that

denial are relegated to presenting the testimony of

that witness via the inferior means of videotape.

3. Whether the Fourteenth Amendment’s Equal

Protection Clause is violated when, as the result of a

State court’s arbitrary application of its own court

rules, the litigants in a State court civil action are relegated to presentation of the testimony of a critical expert witness via videotape, while an opposing party in

the same case is provided with the opportunity to present the live testimony of its own expert witnesses.

iii

PARTIES TO THE PROCEEDING

Petitioners are Carl Lawson, a former postal

worker who is totally disabled as the result of a mountain biking accident occurring on September 30, 2006,

and his wife, Gloria Lawson. Petitioners are residents

of Freehold, New Jersey. Respondent Bell Sports, USA

is a corporation engaged in the manufacture and distribution of bicycling helmets and other sports equipment, throughout the United States and in numerous

foreign countries. The claims against Defendants K2

Sports USA, K2 Bike, SRAM Corporation, Ford Motor

Company, Freehold Ford Inc., Bell Sports USA, and

New Jersey Department of Environmental Protection

Division of Parks and Forestry, were resolved prior to

the trial which forms the basis of this Petition.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..................................

PARTIES TO THE PROCEEDING........................

iii

TABLE OF CONTENTS ........................................

TABLE OF AUTHORITIES ................................... viii

OPINIONS BELOW ...............................................

JURISDICTION .....................................................

STATUTORY PROVISIONS INVOLVED .............

STATEMENT OF THE CASE ................................

REASONS FOR GRANTING THE WRIT .............

THE COURT SHOULD REVIEW THIS

CASE TO MAKE IT CLEAR THAT THE

FOURTEENTH AMENDMENT’S DUE

PROCESS CLAUSE PROHIBITS STATE

COURTS FROM ARBITRARILY DENYING CIVIL LITIGANTS THE HEARINGS

AND/OR CONFERENCES THEY ARE

ENTITLED TO, PURSUANT TO A STATE

COURT’S OWN RULES ............................ 11

THE COURT SHOULD REVIEW THIS

CASE TO CONSIDER WHAT CONSTITUTES A HEARING “APPROPRIATE TO

THE CASE” IN A STATE COURT CIVIL

ACTION, PURSUANT TO THE FOURTEENTH AMENDMENT’S DUE PROCESS CLAUSE ........................................... 17

TABLE OF CONTENTS – Continued

Page

1. The Court Should Make It Clear That

Claimants In A State Court Civil Action Are Deprived Of A Hearing “Appropriate To The Case” When They Are

Arbitrarily Deprived Of The Live Testimony, At Trial, Of A Witness Whose

Testimony Is Required To Establish

Their Claims ........................................ 18

2. The Court Should Reaffirm That, In A

Civil Action, The Fourteenth Amendment’s Due Process Clause Is Not Satisfied Simply Because A “Hearing”

Has Been Provided, Unless It Is A

Hearing “Appropriate To The Case” .... 24

THE COURT SHOULD MAKE IT CLEAR

THAT WHEN A PROCEDURAL RULE

IS APPLIED TO ARBITRARILY DENY

CERTAIN LITIGANTS THE RIGHTS AND

PROTECTIONS IT CONFERS, WHILE

ARBITRARILY GRANTING THOSE SAME

RIGHTS AND PROTECTIONS TO OTHER

LITIGANTS, THE FOURTEENTH AMENDMENT’S EQUAL PROTECTION CLAUSE

IS ALSO VIOLATED ................................. 27

TABLE OF CONTENTS – Continued

Page

D. THIS CASE IS AN IDEAL VEHICLE TO

GIVE SUBSTANCE TO THE COURT’S

HOLDINGS ACKNOWLEDGING THE

RIGHT OF LITIGANTS IN STATE COURT

CIVIL ACTIONS TO RECEIVE HEARINGS “APPROPRIATE TO THE CASE,”

AND FOR THE COURT TO ENUNCIATE

FACTORS STATE COURTS SHOULD APPLY TO INSURE THAT OCCURS.............. 34

CONCLUSION .......................................................

APPENDIX

New Jersey Superior Court, Appellate Division

7/24/17 Decision .......................................... App. 1-21

New Jersey Superior Court, Law Division 2/8/13

Trial Date Order ....................................... App. 22-23

New Jersey Superior Court, Law Division 8/22/14

Peremptory Trial Date Order ................... App. 24-26

New Jersey Superior Court, Law Division 9/19/14

Order Denying Plaintiffs’ Trial Date Motion

as Moot ...................................................... App. 27-28

New Jersey Superior Court, Law Division

12/19/14 Order Denying Motion to Adjourn

Trial Date .................................................. App. 29-30

New Jersey Supreme Court 6/15/18 Order

Denying Petition for Certification ............ App. 31-32

vii

TABLE OF CONTENTS – Continued

Page

New Jersey Supreme Court 9/12/18 Order

Granting Motion For Leave to File a Motion

for Reconsideration, and Denying Motion

For Reconsideration of Petition for Certification .................................................................. App. 33

Letter 9/9/14 to New Jersey Superior Court,

Law Division Civil Case Manager Requesting

Trial Adjournment ......................................... App. 34

viii

TABLE OF AUTHORITIES

Page

CASES

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) .......12

Barber v. Page, 390 U.S. 719 (1968) ...................... 18, 34

Boddie v. Connecticut, 401 U.S. 371 (1971) ................22

Farrell v. City of Seattle, 134 Wash. App. 1038

(2006) .......................................................................19

Goss v. Lopez, 419 U.S. 565 (1975).................. 11, 13, 14

Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) ...... 15, 35

Kurzke v. Nissan Motor Corp. in U.S.A., 320 N.J.

Super. 386 (App. Div. 1999) ......................... 15, 19, 35

Logan v. Zimmermann Brush Co., 455 U.S. 422

(1982) ............................................................... passim

Lundstrom v. Brekke Enter., Inc., 115 Idaho 256,

765 P.2d 667 (Idaho 1988).......................................19

Martinez v. California, 444 U.S. 277 (1980) ...............12

Mullane v. Central Hanover Bank & Trust Co.,

339 U.S. 306 (1950) .................................................12

Richardson v. Richardson-Merrell, Inc., 857 F.2d

823 (D.C. Cir. 1988) .................................................19

Schertenleib v. Traum, 589 F.2d 1156 (2d Cir.

1978) .................................................................. 16, 34

United States v. Raddatz, 447 U.S. 667 (1980) .... 18, 34

TABLE OF AUTHORITIES – Continued

Page

United States v. Wilson, 601 F.2d 95 (3d Cir.

1979) ........................................................................15

Yick Wo v. Hopkins, 118 U.S. 356 (1886)..... 30, 32, 33, 35

CONSTITUTION

U.S. Const. amend. VII ...............................................16

U.S. Const. amend. XIV ...................................... passim

STATUTES

28 U.S.C. § 1257(a) ........................................................1

OTHER AUTHORITIES

New Jersey Court Rule 4:36-3 ........................... passim

42 New Jersey Practice, Discovery, § 1.14 ..................16

OPINIONS BELOW

The unreported opinion of the Appellate Division

of the New Jersey Superior Court, issued on July 24,

2017, is included in Petitioners’ Appendix, filed herewith. (Petitioners’ Appendix (“App.”) 1-23).

------------------------------------------------------------------

JURISDICTION

The Supreme Court of the State of New Jersey

rendered its decision on June 12, 2018, denying Petitioners’ petition for certification of the decision of the

Appellate Division, and denied a petition for rehearing

by Order dated September 5, 2018. (App. 33). This

Court has jurisdiction under 28 U.S.C. § 1257(a).

------------------------------------------------------------------

STATUTORY PROVISIONS INVOLVED

This matter arises under Section 1 of the Fourteenth Amendment to the Constitution of the United

States of America, which states:

All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and

of the State wherein they reside. No State

shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United States; nor shall any State

deprive any person of life, liberty, or property,

without due process of law; nor deny to any

person within its jurisdiction the equal protection of the laws.

------------------------------------------------------------------

STATEMENT OF THE CASE

Petitioners allege that the Bell Solar Helmet Petitioner Carl Lawson was wearing at the time of his

mountain biking accident of September 30, 2006, manufactured by Respondent Bell Sports USA (“Bell”), was

unreasonably dangerous. They contend that a projection at the rear of Mr. Lawson’s helmet caused a “twisting” motion upon impact with the rear of the helmet,

and that this defective design either produced or aggravated the severe neck injuries he sustained in that

accident.

The New Jersey Superior Court scheduled numerous “Case Management Conferences,” in connection

with the litigation of Petitioners’ products liability

claims in this case. A primary objective of those Case

Management Conferences was to assure that a trial

date was set for this case which accommodated the

schedules of the numerous out-of-state lay and expert

witnesses for all parties.

The scheduling of trial dates for cases pending in

the New Jersey Superior Court, whether accomplished

in Case Management Conferences or otherwise, is subject to the dictates of Rule 4:36-3. Significantly, in its

very first provision, Rule 4:36-3(a) makes it clear that

if a case is not reached for trial at the time its initial

trial date is reached, a “date certain” will be promptly

set for trial, but only “after consultation with counsel. . . .”

4:36-3. Trial Calendar

(a) Notice of trial . . . If a case is not

reached during the week in which

the trial date falls, it shall be forthwith scheduled for a date certain after consultation with counsel. . . .

Rule 4:36-3(a), New Jersey Rules of Court (emphasis

supplied).

On February 8th of 2013, at one of the numerous

Case Management Conferences held in Petitioners’

case, September 9, 2013 was set as the date for the trial

of Petitioners’ claims. Nevertheless, on September 4th,

2013, only five days before this initial trial date was

reached, Petitioners’ counsel received a notice, via letter faxed to him by counsel for Respondent Bell, informing him as follows:

“Please be advised Judge Perri has adjourned the September 9th trial. The Court

will be contacting the parties shortly to schedule a conference and select a new trial date.

If you have any questions, please contact

my office.”

Despite the representation in this letter indicating

that “[t]he Court will be contacting the parties shortly

to schedule a conference and select a new trial date,”

almost a year passed without any contact from the

Court whatsoever. As a result, on August 12, 2014,

more than eleven months after the initial trial date was

adjourned, sine die, by the court itself, Petitioners filed

a Motion returnable on September 5, 2014, requesting

that a new trial date be established at a Case Management Conference, on a peremptory basis, with input

from all parties, as had been done at the previous Case

Management Conference conducted in February of

2013.

Counsel for Respondent Bell initially joined in

Plaintiffs’ request for a Case Management Conference,

so that a new “agreed upon” “peremptory trial date”

could be set, after consultation with all counsel. That

procedure would have been in accordance with the dictates of both Rule 4:36-3(a), requiring that cases not

reached on their initial trial date may be scheduled for

a date certain only “after consultation with counsel,”

and the established procedures for setting peremptory

trial dates in New Jersey State courts. However, on August 20, 2014, eight days after Petitioners’ Motion for

a Case Management Conference and new trial date

was filed, but before that Motion could even be heard,

despite the dictates of Rule 4:36-3(a) and established

procedures mandating “consultation with counsel” before setting a “date certain” for trial, without ever consulting Petitioners’ counsel the Superior Court issued

a notice setting March 23, 2015 as the new “peremptory date” for the trial of Petitioners’ case.

In addition, on August 22, 2014, the Presiding

Civil Judge entered an Order, sua sponte, also without

consulting Petitioners’ counsel, reaffirming March 23,

2015 as the date for trial, and ordering that “no further

adjournments would be granted.” (App. 24-25). Significantly, in his entry of this sua sponte Order, the Presiding Civil Judge failed to mention that the issuance

of this new trial date had been triggered by Petitioners’

own Motion for a Case Management Conference and

new trial date, after almost a year of complete inaction

by the court itself. He also failed to mention that it was

the court itself that had adjourned the last trial date,

almost a year earlier.

Petitioners learned almost immediately after this

new peremptory trial date was set that Zafer Termanini, M.D., the orthopedic surgeon and biomechanics

expert who was acting as Petitioners’ design defect and

causation expert, and who was their sole liability expert, was unavailable during the week of March 23,

2015, because he was scheduled to attend the Annual

Conference of Orthopedic Surgeons during that week,

and would likely be unavailable the next week as well.

As a result, Petitioners immediately sought an adjournment of the new trial date pursuant to Rule 4:363(b) and (c), the subdivisions of Rule 4:36-3 which, in

pertinent part, unambiguously provide for at least one

adjournment request, to accommodate the scheduling

conflict of a proposed expert witness, stating as follows:

(b) Adjournments, Generally. An initial

request for an adjournment for a reasonable

period of time to accommodate a scheduling

conflict or the unavailability of an attorney, a

party, or a witness shall be granted if made

timely in accordance with this rule. . . .

an adjournment was the unavailability of an

expert witness, no further adjournment request based on that expert’s unavailability

shall be granted, except upon a showing of exceptional circumstances, but rather that expert shall be required to appear in person or

by videotaped testimony taken pursuant to R.

4:14-9. . . .

Rule 4:36-3(b) and (c), New Jersey Rules of Court (emphasis supplied).

In accordance with the requirements of Rule 4:363(b), Petitioners immediately submitted a request to

the civil division case manager, asking that the new

trial date, set without any input from Petitioners’

counsel, be moved to a date either two weeks earlier or

two weeks later than March 23, 2015, in light of Dr.

Termanini’s scheduling conflict. (App. 34). However,

Respondent Bell’s counsel objected to this request.

They obviously recognized that, as the result of the

Presiding Civil Judge’s extraordinary decision to

simply ignore Rule 4:36-3(a), and set a “date certain”

for trial in the absence of any consultation with Petitioners’ counsel, the peremptory trial date that had

been set would enable Respondent to present the live

testimony of its own experts, while relegating Petitioners to the inferior option of having to present the testimony of their sole liability expert via videotape.

Ironically, even though it was obviously the triggering event for the new “peremptory trial date” of

March 23, 2015 that was set without even consulting

them, Petitioners’ Motion for a Case Management Conference and to set a new trial date, filed on August 12,

2014, was never heard. Instead, the Presiding Civil

Judge simply proceeded to issue a second Order, on

September 19, 2014 and, without any hearing declared

Petitioners’ Motion for a Case Management Conference to be “moot,” on the grounds that “a Trial Order

was already issued scheduling a peremptory date of

March 23, 2015” (App. 28), even though the “Trial Order” he was referring to had been issued at least a week

after Petitioners’ Motion had been filed. This ruling effectively deprived Petitioners of any chance to be

heard, with respect to the setting of a new “peremptory

trial date,” despite the fact that this was the very first

adjournment request ever made by Petitioners on

any grounds, in almost four years of litigation, and the

first and only adjournment request to accommodate a

scheduling conflict for Dr. Termanini, their sole liability expert; despite the fact that Petitioners’ request

was timely, and in full compliance with Rule 4:36-3 in

every other way; and despite the fact that Petitioners

had no responsibility whatsoever for the trial court’s

adjournment of the initial trial date of September 9,

2013, set almost a year earlier.

Petitioners then followed with a formal motion,

again in full compliance with the procedures established in Rule 4:36-3, formally moving for adjournment

of the peremptory trial date that had been set without

their input. Nevertheless, following the lead of the Presiding Civil Judge, the judge assigned to hear that

motion proceeded to likewise ignore the dictates of

Rule 4:36-3 as well, and she concluded there was “no

reasonable basis for the adjournment,” despite the fact

that it was indisputably the first adjournment request

made by Petitioners, to accommodate a scheduling conflict for Dr. Termanini; was made by Petitioners in full

compliance with Rule 4:36-3(c); and Petitioners’ counsel explained in detail the existence of Dr. Termanini’s

scheduling conflict, and why that conflict would foreclose his ability to appear personally, at the time of

trial.

It is clear, however, that the judge who heard Petitioners’ formal adjournment motion was merely “rubber stamping” the sua sponte Orders of the Presiding

Civil Judge, because she noted at the outset, that the

trial date Petitioners were seeking to adjourn had been

set by the Presiding Civil Judge, with the assistance of

the civil case manager’s office. Moreover, although she

stated that she “seriously doubted” that Dr. Termanini’s scheduling conflict would be an issue, and that

“if some minor accommodation is needed, we do that

routinely in all trials,” she failed to issue any Order so

providing.

Petitioners’ counsel knew that, in New Jersey, it

was likely that a different judge would be assigned to

preside over the actual trial of Petitioners’ case, who

would not be bound by anything short of an Order from

a judge hearing a pretrial motion, requiring an accommodation for any conflict with Dr. Termanini’s schedule at the time of trial. Thus, in light of the denial of

their formal adjournment motion, without such an

Order, Petitioners were left with a Hobson’s choice: if

they did not place Dr. Termanini’s expert testimony on

videotape, prior to the time set for trial, Petitioners

would be risking the outright dismissal of their claims,

in the event Dr. Termanini was unavailable at the time

when his testimony was required, by virtue of his attendance at the Annual Convention of Orthopedic Surgeons; on the other hand, if Petitioners did place Dr.

Termanini’s testimony on videotape, once they did so

they would be providing a highly prejudicial advantage

to Respondent, who would have Dr. Termanini’s video

testimony available prior to trial, and also be able to

then proceed to present the live testimony of their own

experts, at the time of trial.

Petitioners concluded that, faced with these

choices, risking the outright dismissal of their claims

was unacceptable, and their only viable option was to

place Dr. Termanini’s testimony on videotape, and present it to the jury in that fashion. Predictably, however,

with Respondent afforded the opportunity to present

the live testimony of its own experts, and Petitioners

denied that opportunity, and relegated to the inferior

option of presenting the testimony of their most important witness via videotape, the jury returned a verdict of “no cause of action” at the conclusion of the case.

Petitioners appealed from the adverse verdict to

the Appellate Division of the New Jersey Superior

Court. Significantly, the Appellate Division implicitly

acknowledged that Petitioners were entitled to at least

one trial date adjournment, to accommodate the scheduling conflict of an expert witness, pursuant to Rule

4:36-3(c). (App. 5-6). Moreover, they noted that they

“agree[d] with plaintiffs that it is preferable for a peremptory trial date to be scheduled with the input of the

parties,” and that “in the absence of consent, the trial

judge should conduct a conference pursuant to Rule

4:36-3(b) to select the date” for trial. However, even

though both of these provisions of the Rule were blatantly ignored and violated in Petitioners’ case, the Appellate Division concluded that, for the trial court to

ignore the requirement of Rule 4:36-3(a), that a date

certain for trial can only be selected “after consultation

with counsel”; to fail to provide Petitioners with a conference to select a trial date, after Respondent objected

to their adjournment request; despite the unambiguous language of Rule 4:36-3(b) providing for such a conference; and to deny Petitioners’ first and only trial

adjournment request, to accommodate the scheduling

conflict of an expert witness, despite the provisions of

Rule 4:36-3(c) to the contrary, was “not an abuse of discretion.” (App. 5-7). The Appellate Division also ruled

that, even though Petitioners were deprived of the opportunity to present the live testimony of their critical

design defect and causation expert, in a products liability action in which that testimony was required to

establish their claims, while Respondent Bell was provided with the opportunity to present the live testimony of its own experts, “plaintiffs were not deprived

of the opportunity to present Dr. Termanini’s testimony, albeit by videotape.” (Id.).

Petitioners moved for reconsideration by the Appellate Division, but that motion was denied.

The Supreme Court of New Jersey refused Petitioners’ request for review of the Appellate Division’s

ruling, and Petitioners’ request for reconsideration of

the New Jersey Supreme Court’s ruling was also denied.

------------------------------------------------------------------

REASONS FOR GRANTING THE WRIT

A. THE COURT SHOULD REVIEW THIS CASE TO

MAKE IT CLEAR THAT THE FOURTEENTH

AMENDMENT’S DUE PROCESS CLAUSE PROHIBITS STATE COURTS FROM ARBITRARILY

DENYING CIVIL LITIGANTS THE HEARINGS

AND/OR CONFERENCES THEY ARE ENTITLED TO, PURSUANT TO A STATE COURT’S

OWN RULES.

This Court has made it clear on numerous occasions that the right to a “hearing,” which the Fourteenth Amendment’s Due Process Clause guarantees

to citizens in their interactions with State actors, is an

expansive one, and encompasses all forms of hearings

as well as conferences, where issues directly impacting

life, liberty, and property are at stake. See, e.g., Goss v.

Lopez, 419 U.S. 565, 581 (1975) (“hearing” for students

suspended from a public school for more than ten days

was required by the Due Process Clause, even if it consisted simply of an informal conference in which a suspended student was permitted to tell his or her side of

the story).

The Court has also made it clear that our State

courts are “State actors” for Due Process Clause purposes, and repeatedly held that the adjudicatory procedures made available to civil litigants by our State

courts are a species of property protected by the Fourteenth Amendment’s Due Process Clause. See, e.g.,

Logan v. Zimmermann Brush Co., 455 U.S. 422, 428

(1982); Mullane v. Central Hanover Bank & Trust Co.,

339 U.S. 306, 311, 313 (1950). Thus, State court action

cannot be used to arbitrarily deprive a litigant of the

value of the “property interest” that a “cause of action”

represents. Martinez v. California, 444 U.S. 277, 281282 (1980). The Court has also held that it does not

matter whether the State action involved is imposed

by a statute or by court rule, because a court rule is the

equivalent of a statute, for Fourteenth Amendment

Due Process Clause purposes. Adickes v. S.H. Kress &

Co., 398 U.S. 144 (1970).

Although the Court has not yet considered these

issues in connection with the hearings and/or conferences provided for civil litigants by a State court’s own

rules, taken together, these principles leave no doubt

that Petitioners’ Due Process rights were violated

when, in direct violation of Rule 4:36-3, the Presiding

Civil Judge set a peremptory date for the trial of Petitioners’ products liability claims in this case without

providing Petitioners the “consultation with counsel”

required by subdivision (a) of Rule 4:36-3; and without

providing Petitioners with the conference they were

clearly entitled to, pursuant to subdivision (b) of that

Rule, after Respondent Bell objected to their adjournment request.

As noted above, Rule 4:36-3(a) specifically provides that, “[i]f a case is not reached during the week

in which the trial date falls, it shall be forthwith scheduled for a date certain after consultation with counsel.”

Rule 4:36-3(a), supra. The “consultation with counsel”

provided for clearly qualifies as a “hearing,” for Due

Process Clause purposes, however informal it might

be. Cf., Goss v. Lopez, 419 U.S. 565, 581. But in this

case, even though it is undisputed that Petitioners’

case was “not reached during the week in which the

trial date” of September 9, 2013 fell, it is also undisputed that both the civil case manager’s office and the

Presiding Civil Judge simply ignored Rule 4:36-3(a),

and proceeded to set a “date certain” for trial of their

case without providing Petitioners the “consultation of

counsel” that Rule 4:36-3(a) required. As a result, the

obvious purpose of that Rule, to provide civil litigants

with the benefit of participating in the selection of a

“date certain” for trial before that selection is made,

and the potential for consideration of alternative dates

in light of the schedules of their critical witnesses is

still possible, was irretrievably lost to Petitioners as

soon as the Presiding Civil Judge proceeded to enter

his sua sponte Order setting March 23, 2015 as the official date certain for trial in this case, with “no further

adjournments.” (App. 24). The failure of the Presiding

Civil Judge to provide Petitioners with the hearing, in

the form of the “consultation with counsel” that Rule

4:36-3(a) required, was therefore a blatant violation of

Petitioners’ rights, pursuant to the Fourteenth Amendment’s Due Process Clause. Goss, 419 U.S. 565, 581.

By the same token, subdivision (b) of Rule 4:363(b) unequivocally provides that “[i]f consent cannot be

obtained or if a second request is made, the court shall

determine the matter by conference call with all parties.” Thus, when Petitioners requested adjournment of

the date of March 23, 2015, by reason of the unavailability of their critical design defect and causation expert expert, Zafer Termanini, M.D., and Respondent

Bell objected to that request, the “conference call” Rule

4:36-3(b) provided for, also qualified as a “hearing” for

Due Process Clause purposes. Goss, 419 U.S. 565, 581.

It is also undisputed, however, that the Presiding Civil

Judge simply ignored that provision of Rule 4:36-3 as

well, and never provided that conference call to Petitioners. Instead, he simply declared their request for a

conference to select a trial date as “moot.” (App. 28).

His failure to provide Petitioners with that hearing

was therefore also a blatant violation of Petitioners’

rights, pursuant to the Fourteenth Amendment’s Due

Process Clause. Goss, 419 U.S. 565, 581.

Respondent may argue that the Orders entered by

the Presiding Civil Judge, in direct violation of Rule

4:36-3, fail to rise to the level of Due Process Clause

violations, because they involved only de minimis issues. However, New Jersey Court Rule 4:36-3 makes it

clear, by its very terms, that it does not consider either

the setting of a “date certain” for trial, or the request

for a trial date adjournment, to accommodate the

scheduling conflict of an expert witness, de minimis

issues. Were they de minimis, these issues would not

require “consultation with counsel,” a telephone conference call, or that litigants be virtually guaranteed

at least a single adjournment request, to accommodate

an expert witness’s scheduling conflict. Cf., Rule 4:363(a), (b), and (c). In fact, Rule 4:36-3 implicitly recognizes the importance of all of these issues, to the litigation process.

Moreover, Rule 4:36-3 also reflects an undeniable

reality of trial practice that has been acknowledged

both implicitly and explicitly by this Court, and by numerous other federal and State courts: the fact that

the presentation of the live testimony of witnesses at

trial is, in almost all circumstances, superior to the

presentation of testimony via videotape, audiotape, or

via some other alternative means. In fact, ironically,

although it refused to acknowledge that reality in this

case, in Kurzke v. Nissan Motor Corp. in U.S.A., 320

N.J. Super. 386, 399 (App. Div. 1999), the Appellate Division of the New Jersey Superior Court cited this

Court’s own ruling in Gulf Oil Corp. v. Gilbert, 330 U.S.

501, 511 (1947), in support of that very proposition,

noting that “a deposition, even a videotaped one, is not

a substitute for live testimony . . . ‘[T]o fix the place of

trial at a point where litigants cannot compel personal

attendance of witnesses and may be forced to try their

cases on deposition, is to create a condition not satisfactory to the court, jury or most litigants.’ ” See also

United States v. Wilson, 601 F.2d 95, 97 (3d Cir. 1979)

(“Attendance of witnesses at trial . . . is the favored

method of presenting testimony. . . . The antipathy to

depositions is due in large part to the desirability of

having the factfinder observe witness demeanor. Although this concern has been alleviated to a marked degree by the advent of modern audio-visual technology,

the policy in favor of having the witness personally present persists.”) (emphasis supplied); Schertenleib v.

Traum, 589 F.2d 1156, 1159 (2d Cir. 1978) (absence of

live testimony is a “very serious handicap. . . .”); and

see 42 New Jersey Practice, Discovery, § 1.14 (“In general, an audio-visually recorded deposition is not as effective as live testimony and most practitioners will

not substitute an audio-visually recorded deposition

for live testimony”).1

Because the actions of the Presiding Civil Judge

resulted in Petitioners being deprived of the fair opportunity to present the live testimony of their critical design defect and causation expert, and relegated them

to the inferior alternative of doing so via videotape, the

significance of his decision to simply ignore the provisions of Rule 4:36-3(a) and (c), for Due Process Clause

purposes, is incontrovertible for this additional reason

as well.

For all of these reasons, the Court should review

and vacate the “no cause” verdict produced by the blatant violations of Petitioners’ rights to the consultation

Even though the Seventh Amendment does not apply to

State court actions, it is significant to note that, in its guarantee

of a litigant’s right to present his or her proofs “in open court,” the

Seventh Amendment also implicitly recognizes the value of presenting the live testimony of witnesses, as opposed to presenting

a witness’s testimony in some other fashion.

and conference they were entitled to, pursuant to Rule

4:36-3 of the New Jersey Court Rules, and make it

clear both to the New Jersey State Courts, and to our

other State courts as well, that the Fourteenth Amendment’s Due Process Clause prohibits State courts from

arbitrarily ignoring, and directly violating their own

court rules, particularly with respect to the participation of civil litigants in hearings provided for by those

rules, that are material to the ultimate proofs of their

claims or defenses.

B. THE COURT SHOULD REVIEW THIS CASE

TO CONSIDER WHAT CONSTITUTES A HEARING “APPROPRIATE TO THE CASE” IN A

STATE COURT CIVIL ACTION, PURSUANT

TO THE FOURTEENTH AMENDMENT’S DUE

PROCESS CLAUSE.

The cases cited in Point A, supra, also recognize

that State court civil litigants are not just entitled to a

hearing, pursuant to the Fourteenth Amendment’s

Due Process Clause, they are entitled to a hearing “appropriate to the case.” See, e.g., Logan v. Zimmerman

Brush Co., 455 U.S. 422, 428 (1982).

Nevertheless, while the Court has considered this

issue in the criminal context, it has not yet considered

what constitutes a hearing “appropriate to the case” in

a civil action, for Due Process Clause purposes. Importantly, however, in those criminal cases where the

Court has considered this issue, it has specifically

considered it with respect to the availability of “live

testimony,” as a factor in making that determination.

For example, in United States v. Raddatz, 447 U.S. 667,

678-679 (1980), the Court ruled that a defendant who

did not receive the benefit of “live testimony” in a suppression hearing, still received a hearing “appropriate

to the case,” because “the process due at a suppression

hearing may be less demanding and elaborate than the

protections accorded the defendant at the trial itself.”

By contrast, however, in Barber v. Page, 390 U.S. 719,

725 (1968), a defendant’s conviction for armed robbery

was reversed, because it was based upon the transcript

of the preliminary hearing testimony of a critical prosecution witness, in lieu of that witness’s live testimony,

at the time of trial.

1. The Court Should Make It Clear That

Claimants In A State Court Civil Action

Are Deprived Of A Hearing “Appropriate

To The Case” When They Are Arbitrarily

Deprived Of The Live Testimony, At Trial,

Of A Witness Whose Testimony Is Required

To Establish Their Claims.

In light of its decisions in the Raddatz and Barber

cases, there is good reason to believe the Court would

conclude that, in the actual trial of State court civil

claims, where the ultimate determinations of liability,

causation, and damages are made, claimants denied

the opportunity to present the live testimony of witnesses required to establish their claims, have failed

to receive a hearing “appropriate to the case,” as

guaranteed by the Fourteenth Amendment’s Due Process Clause.

The denial to Petitioners of the opportunity to present the live testimony of their critical design defect

and causation expert, at the time of the trial of their

product liability claims in this case, raises issues directly analogous to those considered by this Court in

Raddatz and Barber, and presents an excellent opportunity for the Court to finally address these same issues in the civil context. Indeed, it is obviously in

implicit recognition of the widely recognized superiority of live testimony over testimony presented via

videotape, particularly in the presentation of expert

proofs, that on its face New Jersey Court Rule 4:36-3

appears to guarantee to every litigant at least one trial

date adjournment, to accommodate the scheduling conflict of an expert witness, pursuant to subdivisions (b)

and (c) of that Rule. See Rule 4:36-3(b) and (c), supra.

In addition, in most states, including New Jersey,

expert testimony is required to establish products liability claims. See, e.g., Kurzke, 320 N.J. Super. 386, 404.

In fact, it is well recognized that the typical products

liability action often boils down to a “battle of the experts,” with expert witnesses presenting their competing opinions to a jury regarding the presence or

absence of a product defect. See, e.g., Richardson v.

Richardson-Merrell, Inc., 857 F.2d 823, 831-832 (D.C.

Cir. 1988); Farrell v. City of Seattle, 134 Wash. App.

1038, *5 (2006); Lundstrom v. Brekke Enter., Inc., 115

Idaho 256, 262, 765 P.2d 667, 672 (Idaho 1988).

When considered together, the realities of trial

practice favoring the presentation of the live testimony

of witnesses at the time of trial; the critical importance

of expert testimony in products liability actions in particular; and this Court’s longstanding recognition that

a “cause of action” is a species of property protected by

the Fourteenth Amendment’s Due Process Clause, are

three factors which make it immediately clear that the

value of the property interest represented by Petitioners’ “cause of action” in this case was at the very least

substantially diminished, if not destroyed completely,

by the arbitrary refusal of the Presiding Civil Judge,

and the New Jersey Courts below, to provide Petitioners with the benefits of Rule 4:36-3, to enable them to

present the live testimony of their critical design defect

and causation expert, rather than effectively compelling them to do so via videotape.

Indeed, in retrospect, the “no cause” verdict returned by the jury at the time of trial became a foregone conclusion in this case, as soon as the State court

judges with authority over the scheduling of the date

for the trial of Petitioners’ claims arbitrarily decided to

ignore the requirement of Rule 4:36-3(c), mandating

that Petitioners’ first and only trial adjournment request be granted, to accommodate the scheduling conflict of their critical liability expert, and Petitioners

were left with no other viable option than to present

the testimony of that critical expert via the inferior alternative of videotape, while Respondent Bell was able

to present the live testimony of its own experts.

Although a different issue was involved, these extraordinary circumstances are directly analogous to

those before this Court in Logan v. Zimmerman Brush

Co., 455 U.S. 424 (1982). In Logan, at issue was the appellant’s claim for disability discrimination, under the

Illinois Fair Employment Practices Act (“FEPA”). The

timeliness of appellant Logan’s claim was undisputed.

However, the FEPA statute required the Fair Employment Practices Commission (“Commission”), to convene a fact-finding conference to investigate Logan’s

claim within 120 days of the date his claim was filed.

Just as the initial trial date in this case was adjourned

for reasons beyond Petitioners’ control, and the trial

court failed to take any action to set a new trial date

for almost a year, in Logan, the Commission failed to

comply with the 120-day time limit for convening its

fact-finding conference, through no fault of Logan’s,

and for reasons completely beyond Logan’s control. Id.

at 424-426. But the Illinois Supreme Court still held

that, because of the Commission’s failure to comply

with that 120-day requirement, it lacked jurisdiction

to hear Logan’s claim, and his claim had to be dismissed. Id. at 427.

Faced with these facts, this Court reversed the ruling of the Illinois Supreme Court in Logan, explaining

its reasoning as follows:

. . . the Fourteenth Amendment’s Due Process

Clause has been interpreted as preventing the

States from denying potential litigants use of

established adjudicatory procedures, when

such an action would be “the equivalent of

denying them an opportunity to be heard

upon their claimed right[s].” Boddie v. Connecticut, 401 U.S. 371, 380 (1971).

Logan v. Zimmerman Brush Co., 455 U.S. 424, at 429430.

As our decisions have emphasized time

and again, the Due Process Clause grants the

aggrieved party the opportunity to present his

case and have its merits fairly judged.

. . . Logan is challenging not the Commission’s

error but the “established state procedure”

that destroys his entitlement without according him proper procedural safeguards. . . .

What the Fourteenth Amendment does require . . . is “ ‘an opportunity . . . granted at a

meaningful time and in a meaningful manner

. . . ’ for a hearing appropriate to the nature of

the case.”

Id., 433-437 (citations omitted, emphasis supplied).

These same principles apply with equal force to

the facts presented in this petition. Here, as in Logan,

Petitioners are not challenging the Superior Court’s

“error” in refusing their adjournment request, to enable them to present the live testimony of their critical

expert witness. What Petitioners are challenging is the

“established state procedure” which obviously enables

the Superior Court, through the manner in which New

Jersey Court Rule 4:36-3(c) is applied (or, as in this

case, not applied), to arbitrarily deny certain litigants

the adjournments they may request, to accommodate

the scheduling conflicts of those expert witnesses

whose live testimony they wish to present, while arbitrarily granting the adjournment requests of other litigants, made for the same purpose.

The decision of the Appellate Division effectively

affirmed the arbitrary nature of the trial court’s decisions to deny Petitioners’ single adjournment request

(App. 5-7), as did the New Jersey Supreme Court’s refusal to review it. These decisions make it clear that,

although it may be “neutral” on its face, like the 120day time limit at issue in Logan, in its application New

Jersey Superior Court Rule 4:36-3 effectively creates

two classes of civil litigants in New Jersey: the first

class consisting of those litigants who are afforded the

benefits of the Rule, such that a “date certain” for trial

will not be set in their cases, until after “consultation

with counsel,” as required by Rule 4:36-3(a), and whose

single adjournment requests, to accommodate the

scheduling conflicts of the expert witnesses whose live

testimony they wish to present will be granted; and the

second class consisting of those litigants, like Petitioners, who are arbitrarily denied the benefits of the Rule,

such that a “date certain” for trial will be fixed in their

cases without “consultation with counsel,” and who

will be arbitrarily denied their single adjournment requests and effectively punished for delays in their

cases, arising from factors completely beyond their

control, and through no fault of their own, will be relegated to the inferior option of presenting the testimony

of their experts via videotape, or worse still, the mere

reading of a deposition transcript. (Cf., Logan, 455 U.S.

424, at 429-430).

2. The Court Should Reaffirm That, In A

Civil Action, The Fourteenth Amendment’s Due Process Clause Is Not Satisfied Simply Because A “Hearing” Has

Been Provided, Unless It Is A Hearing

“Appropriate To The Case.”

Petitioners recognize that, regardless of the realities of trial practice, the New Jersey Courts have a legitimate interest in presiding over their own trial

calendars. An excessive number of adjournment requests to accommodate experts’ schedules could easily

have the untoward consequence of clogging trial calendars and wasting judicial resources, while litigants

strive to coordinate their trial dates with their expert

witnesses. Such considerations clearly form the basis

for those provisions of Rule 4:36-3 which expressly

limit the number of adjournment requests that can be

made, to accommodate the scheduling conflicts of a

given expert witness. See, e.g., Rule 4:36-3(c).

In this case, however, Petitioners were guilty of no

“excessive requests” for an adjournment, and there

was no wrongful or improper action by Petitioners

themselves, or by their counsel, that was ever identified by either the Presiding Civil Judge, in his denial

of Petitioners’ informal adjournment request, or by the

judge hearing pretrial motions in this case, as a basis

for their denials of Petitioners’ single adjournment request. It was also undisputed that the single adjournment request Petitioners made, to accommodate the

scheduling conflict of their key liability expert in this

case, was both the first and only such adjournment

request by Petitioners, in almost four years of litigation; undisputed that both Petitioners and their critical liability expert, Zafer Termanini, M.D., were ready,

willing, and able to proceed to trial on September 9,

2013, at the time the first trial date was set in this case;

undisputed that the initial trial date of September 9,

2013, was adjourned by the court itself, without any

statement of the reasons for the adjournment; undisputed that adjournment of the initial trial date was

completely beyond the control of either Petitioners or

their counsel; undisputed that a full eleven months after the initial trial date was adjourned, the court had

still taken no action whatsoever to set a new trial date;

and also undisputed that Petitioners’ first and only

trial adjournment request in this case offered to accept

an alternative trial date two weeks earlier than the

date set by the court. (App. 34).

Thus, to the extent the Presiding Civil Judge, the

judge hearing pretrial motions, or the Appellate Division suggested that the refusal to provide Petitioners

with the benefits of Rule 4:36-3(c) was appropriate in

light of the “age” of the case, that suggestion was baseless, because the “age” of the case had nothing to do

with any actions or inactions on the part of Petitioners.

Instead, as in Logan, whatever time delays were involved were purely the product of (1) the court’s own

scheduling problems; and (2) were completely beyond

Petitioners’ control.2 As a result, here as in Logan,

The Appellate Division’s assertion that “the scheduled trial

date was more than six years after an amended complaint was

filed in this case” is incorrect. The last amended complaint in this

there is no valid governmental objective advanced by

the discriminatory treatment afforded to the two classes of litigants Rule 4:36-3 creates, and whatever “interest” the New Jersey Superior Court may have in

retaining the discretion to arbitrarily deny some litigants the single adjournment request that Rule 4:363(c) appears on its face to guarantee, while arbitrarily

granting that single adjournment request to other litigants, is clearly “insubstantial.” Cf., Logan, 455 U.S. at

435.

For all of these reasons, this Court should review

this case to reaffirm that the Fourteenth Amendment’s

Due Process Clause does not merely guarantee a “hearing”; it guarantees the aggrieved party “the opportunity

to present his case and have its merits fairly judged,” and

“ ‘an opportunity . . . granted at a meaningful time and

in a meaningful manner . . . ’ for a hearing appropriate

to the nature of the case.” Logan, 455 U.S. 424, at 437

(emphasis supplied). And clearly, no knowledgeable

practitioner could assert, with a straight face, that the

trial of complex products liability claims in which the

claimants are relegated to the presentation of the expert testimony of their critical liability expert via videotape, while the manufacturer is able to present the

live testimony of its own experts, is a hearing “appropriate to the nature of the case.” Id. As a result, the

case was filed on January 4, 2011, approximately four years before the March 23, 2015 trial date. Most importantly, however, the

case would have been more than eighteen months younger, at the

time of trial, if the initial trial date of September 9, 2013 had not

been adjourned by the court itself. Cf., Logan, 455 U.S. 424, at 426.

Court should review this case to make it clear that

State court civil claimants fail to receive a hearing “appropriate to the case” when, as the result of arbitrary

State court action, they are deprived of a fair opportunity to present the live testimony of a witness whose

testimony is required to establish their claims, at the

time of the trial in which the ultimate outcome of those

claims is determined.

C. THE COURT SHOULD MAKE IT CLEAR

THAT WHEN A PROCEDURAL RULE IS APPLIED TO ARBITRARILY DENY CERTAIN

LITIGANTS THE RIGHTS AND PROTECTIONS IT CONFERS, WHILE ARBITRARILY

GRANTING THOSE SAME RIGHTS AND

PROTECTIONS TO OTHER LITIGANTS, THE

FOURTEENTH AMENDMENT’S EQUAL PROTECTION CLAUSE IS ALSO VIOLATED.

From what occurred in Petitioners’ case, despite

Rule 4:36-3’s implicit recognition of the advantage of

presenting the live testimony of an expert witness, as

opposed to presenting that testimony via videotape,

the New Jersey Superior Court has made it clear that

it will not hesitate to deny a litigant the single adjournment request conferred by subdivisions (b) and (c) of

that Rule, even where there is no valid basis for doing

so, and the court knows that, as the result of that denial, an opposing party in the same case will be able to

present the live testimony of its own expert witnesses,

while the moving party is unable to do so. (App. 5-7).

In fact, by arbitrarily refusing to provide Petitioners

with the “conference” required by Rule 4:36-3(b), when

the consent to an adjournment request cannot be obtained, for purposes of that Rule the Presiding Civil

Judge effectively elevated in importance Bell’s refusal

to consent to Petitioners’ adjournment request, over

the single adjournment request the Rule purports to

guarantee. (App. 24). These circumstances make it

clear that, even though it may appear to be “neutral”

on its face, as applied by the New Jersey Courts, Rule

4:36-3 also constitutes a violation of the Fourteenth

Amendment’s Equal Protection Clause.

As Justices Blackmun, Brennan, Marshall, O’Connor, Powell, and Rehnquist explained, in their concurring opinions in Logan, considering the appellant’s

equal protection claim arising from the 120-day limit

for Commission action arbitrarily applied in different

ways to different litigants in that case,

. . . the procedure at issue does not serve generally to hasten the processing or ultimate

termination of employment controversies. Once

the Commission has scheduled a fact-finding

conference and issued a complaint, there are

no statutory time limits at all on the length of

time it can take to resolve the claim.

. . . So far as the State’s purpose is concerned,

every FEPA claimant’s charge, when filed

with the Commission, stands on the same

footing. Yet certain randomly selected claims,

because processed too slowly by the State, are

irrevocably terminated without review. In

other words, the State converts similarly situated claims into dissimilarly situated ones,

and then uses this distinction as the basis

for its classification. This is the very essence

of arbitrary state action. “The Equal Protection Clause ‘imposes a requirement of some

rationality in the nature of the class singled

out. . . .’ ”

The State no doubt has an interest in the

timely disposition of claims. But the challenged classification failed to promote that

end—or indeed any other—in a rational way.

As claimants possessed no power to convene

hearings, it is unfair and irrational to punish

them for the Commission’s failure to do so. . . .

Logan v. Zimmerman Brush Co., 455 U.S. 424, at 444

(emphasis supplied).

These principles are directly applicable to the arbitrary denial of Petitioners’ adjournment request in

this case as well. Like the equal protection claim at issue in Logan, the arbitrary action at issue in this case

did not serve to “generally hasten the processing or ultimate termination” of this case through trial. Significantly, the trial date of March 23, 2015, set without

consulting Petitioners’ counsel, in direct violation of

Rule 4:36-3(a), was still more than eight months away

when it was arbitrarily selected by the Court in August

of 2014. Changing it to a date either two weeks earlier

or two weeks later, as requested by Petitioners, would

have effectively changed nothing—except that, if selected after “consultation with counsel,” as Rule 4:363(a) required, it would have provided for the assurance

that both Respondent and Petitioners would be able to

present the live testimony of those experts they wished

to have appear personally, at the time of trial, instead

of that opportunity being made available only to Respondent Bell.

In short, it is clear that here as in Logan, in certain

randomly selected cases, like Petitioners, processed too

slowly by the New Jersey State court itself, the New

Jersey Superior Court arbitrarily punishes litigants

for the court’s own excessive delays, by depriving them

of the right to present the live testimony of their expert

witnesses, along with the other benefits and protections of Rule 4:36-3, while other litigants are arbitrarily provided with the benefits and protections of that

Rule.

In fact, this unfettered discretion to either enforce,

or completely ignore the provisions of Rule 3:36-3, on a

purely arbitrary basis, raises additional “due process”

concerns, and brings to mind the situation considered

unconstitutional by this Court for that very reason

more than a century ago, in Yick Wo v. Hopkins, 118

U.S. 356 (1886). In that case, the Court was asked to

consider the constitutionality of an ordinance purporting to regulate the maintenance of laundry facilities

in wooden structures in San Francisco, California.

The Court concluded that, in light of the unfettered

discretion conferred upon the “supervisory board”

charged with its enforcement, the ordinance effectively

amounted to nothing more or less than a vehicle

for expression of the arbitrary will of the board’s members:

The ordinance drawn in question in the

present case is of a very different character. It

does not prescribe a rule and conditions, for

the regulation of the use of property for laundry purposes, to which all similarly situated

may conform. It allows, without restriction,

the use for such purposes of buildings of brick

or stone; but, as to wooden buildings, constituting nearly all those in previous use, it divides the owners or occupiers into two classes,

not having respect to their personal character

and qualifications for the business, nor the situation and nature and adaptation of the

buildings themselves, but merely by an arbitrary line, on one side of which are those who

are permitted to pursue their industry by the

mere will and consent of the supervisors, and

on the other those from whom that consent is

withheld, at their mere will and pleasure. And

both classes are alike only in this: that they are

tenants at will, under the supervisors, of their

means of living.

. . . It is contended on the part of the petitioners that the ordinances for violations of which

they are severally sentenced to imprisonment

are void on their face, as being within the prohibitions of the fourteenth amendment, and,

in the alternative, if not so, that they are void

by reason of their administration, operating

unequally, so as to punish in the present petitioners what is permitted to others as lawful, without any distinction of circumstances,

-an unjust and illegal discrimination, it is

claimed, which, though not made expressly by

the ordinances, is made possible by them.

When we consider the nature and the theory of our institutions of government, the

principles upon which they are supposed to

rest, and review the history of their development, we are constrained to conclude that

they do not mean to leave room for the play

and action of purely personal and arbitrary

power.

Id., 118 U.S. at 366-371 (emphasis supplied).

Significantly, in its decision in Yick Wo, this Court

explained precisely the danger which is presented by

statutes and rules which effectively confer upon those

provided with the authority to “enforce” them, the absolute power and unfettered discretion to do so, or not

to do so, effectively at their whim:

It is clear that giving and enforcing these

notices may, and quite likely will, bring ruin

to the business of those against whom they

are directed, while others, from whom they

are withheld, may be actually benefited by

what is thus done to their neighbors; and,

when we remember that this action of non-action may proceed from enmity or prejudice,

from partisan zeal or animosity, from favoritism and other improper influences and motives easy of concealment, and difficult to be

detected and exposed, it becomes unnecessary

to suggest or comment upon the injustice capable of being wrought under cover of such a

power, for that becomes apparent to every one

who gives to the subject a moment’s consideration. In fact, an ordinance which clothes a single individual with such power hardly falls

within the domain of law, and we are constrained to pronounce it inoperative and void.

Id. at 373 (emphasis supplied).

It is indeed ironic that, in this age of modern jurisprudence, a State court rule like New Jersey Court

Rule 4:36-3, just like the ordinance at issue in Yick Wo,

would be applied in such a way as to provide to the

State court judges who administer it precisely the type

of “purely personal and arbitrary power” that this

Court correctly found to be so objectionable, and clearly

unconstitutional in Yick Wo, more than a century ago.

Id.

The Court should make it clear that when a State

court procedural rule is applied in a manner which arbitrarily denies certain State court civil litigants the

rights and protections it confers, while granting those

same rights and protections to other civil litigants, in

addition to violating its Due Process Clause, the Fourteenth Amendment’s Equal Protection Clause will also

be violated. Cf., Yick Wo v. Hopkins, 118 U.S. 356, at

366-371.

D. THIS CASE IS AN IDEAL VEHICLE TO GIVE

SUBSTANCE TO THE COURT’S HOLDINGS

ACKNOWLEDGING THE RIGHT OF LITIGANTS IN STATE COURT CIVIL ACTIONS

TO RECEIVE HEARINGS “APPROPRIATE

TO THE CASE,” AND FOR THE COURT TO

ENUNCIATE FACTORS STATE COURTS

SHOULD APPLY TO INSURE THAT OCCURS.

This case presents the ideal vehicle for the Court

to begin the process of giving substance to the Court’s

holdings acknowledging the right of litigants in State

court civil actions to receive hearings “appropriate to

the case.” It also presents the ideal vehicle for the

Court to enunciate factors State courts should apply to

ensure that occurs, for several reasons.

At the outset, this case involves one of the factors

the Court has already found significant to this determination in connection with criminal proceedings: the

presence (or absence) of the “live testimony” of witnesses. United States v. Raddatz, 447 U.S. 667, 678679; Barber v. Page, 390 U.S. 719, 725. The importance

of the opportunity to present live testimony, as it

relates to the rights of the litigant in State court civil

actions to receive hearings “appropriate to the case

at issue,” follows logically from the Court’s consideration of this issue in the criminal context. Indeed, as

noted above, in the context of civil litigation it is a

widely recognized truism that the absence of live testimony is a “very serious handicap. . . .” (Schertenleib v. Traum, 589 F.2d 1156, 1159), and “ ‘[T]o fix the

place of trial at a point where litigants cannot compel

personal attendance of witnesses and may be forced to

try their cases on deposition, is to create a condition

not satisfactory to the court, jury or most litigants.’ ”

Kurzke v. Nissan Motor Corp. in U.S.A., 320 N.J. Super.

386, 399, citing Gulf Oil Corp., 330 U.S. at 511.

Violations of the Fourteenth Amendment’s Due

Process and Equal Protection Clauses, like the ones

that victimized Petitioners in this case, may not always

have as their underlying motive the type of invidious

racial, ethnic, or disability discrimination afoot in

cases like Yick Wo and Logan. However, regardless of

its nature, arbitrary State court action can clearly be

expected, in many instances, to have the effect of prejudicing the claims of the least powerful among us, just

as occurred in this case. Cf., Logan, 455 U.S. at 434435; Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064,

1067-1068. Moreover, in light of the thousands of civil

claims prosecuted every day in our State courts, arbitrary State action which prejudices the presentation of

claims and defenses in State court civil actions may be

just as pervasive, and just as damaging to the interests

of its victims, if not more so, at least on a cumulative

basis.

The substantial nature of the civil claims involved,

given the catastrophic injuries sustained by Petitioner

Carl Lawson, also serves to underscore the importance

of civil litigants receiving a hearing “appropriate to the

case.” That is another feature of this case which makes

it a particularly fitting one for the Court to utilize as a

vehicle for elaborating on the question of what is

meant by a hearing “appropriate to the case,” for

Fourteenth Amendment Due Process and Equal Protection Clause purposes, in a State court civil action.

For all of these reasons, this Court should review

and vacate the “no cause” verdict obtained by Respondent in this case, and remand this case with directions

to the New Jersey Superior Court that require it to provide Petitioners the “consultation with counsel,” and

“telephone conference” Rule 4:36-3 entitles them to,

and to set a new trial date at a time which assures not

just Respondent Bell, but Petitioners as well, the opportunity to present the live testimony of their critical

liability experts, so that Petitioners are finally afforded

a hearing “appropriate to the case” they are prosecuting, and one in which the merits of their products liability claims can finally be “fairly judged.” Cf., Logan,

455 U.S. 424, at 437 (emphasis supplied). In so doing,

the Court will be both reaffirming, and giving substance to the message that, just like the defendants

in criminal proceedings, the litigants in State court

civil actions are also not just entitled to a “hearing,”

for Fourteenth Amendment Due Process and Equal

Protection Clause purposes, they are entitled to a hearing “appropriate to the case” at issue.

------------------------------------------------------------------

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

G. MARTIN MEYERS, ESQ.

Counsel of Record

SUSAN S. SINGER

LAW OFFICES OF

G. MARTIN MEYERS, P.C.

35 West Main Street, Suite 106

Denville, New Jersey 07834

(973) 625-0838

gmm@gmeyerslaw.com

Attorneys for Petitioners

December 6, 2018

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.