New Jersey Mass Tort Case Law Update
By: Jared Placitella @ May 15, 2017
Reprinted with permission of the American Association for Justice® (May 2017)
Copyright © 2017 American Association for Justice®,
Formerly Association of Trial Lawyers of America (ATLA®)
The first quarter of 2017 has been a very active time for mass tort practitioners and nowhere more so than in New Jersey. As many NLD members already know, New Jersey state and federal courts are home to many environmental, consumer product, and pharmaceutical multidistrict litigations MDLs (or multicounty litigations as they are referred to in state court). Accordingly, it is important that mass tort practitioners who have filed, or who may file, suits here are aware of two important decisions that have been handed down by the New Jersey Supreme Court and the Third Circuit Court of Appeals, respectively.
First, the New Jersey Supreme Court shifted New Jersey’s choice-of-law framework to resolve conflicts between statutes of limitations in McCarrell v. Hoffman LaRoche, Inc., 153 A.3d 207 (N.J. 2017). This case is critical not only for those actions filed in New Jersey state court, but in federal MDLs too, as it is long recognized that federal courts in diversity cases must apply the choice-of-law rules of the forum in which the court sits. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941).
Arising from the Accutane litigation, McCarrell involved an out-of-state plaintiff from Alabama, who was prescribed Accutane in his home state, ingested the drug there, experienced medical complications there, and, as a result, was treated in Alabama as well. Mr. McCarrell sued Hoffman La-Roche in New Jersey, where it manufactured, marketed, labeled, regulated, sold, and distributed Accutane. Because Mr. McCarrell’s claim was timely in New Jersey under its two-year statute of limitations, but would be time-barred under Alabama’s one-year statute, the New Jersey Supreme Court determined there to be a conflict of laws.
In resolving that conflict between the two states’ statutes of limitation, the Court adopted Section 142 of the Restatement (Second) Conflicts of Law. Under Section 142, the Supreme Court held that New Jersey courts will presumptively apply New Jersey’s two-year statute of limitations (and its discovery rule) to cases filed in New Jersey, unless there are “exceptional circumstances” under which New Jersey has “no substantial interest” in maintaining the claim. In so holding, the Court found that this new rule will provide “predictable and uniform results” consistent with “just expectations” and will place both New Jersey’s “and out-of-state’s citizens on an equal playing field.”
Congratulations to the attorneys from Seeger Weiss LLP, Hook Bolton, P.A., and Beggs & Lane RLLP on this outstanding result.
Second, in the Fosamax MDL, the Third Circuit Court of Appeals overturned a decision of the trial court and reinstated the plaintiffs’ failure-to-warn claims, finding that they were not preempted under federal law. See In re Fosamax (Alendronate Sodium) Prods. Liab. Litig., No. 14-1900, 2017 U.S. App. LEXIS 5075 (3d Cir. Mar. 22, 2017). The District Court had based its ruling on the U.S. Supreme Court’s decision in Wyeth v. Levine, 555 U.S. 555 (2009), which held that state-law failure-to-warn claims are preempted when there is “clear evidence” that the FDA would not have approved the warning that a plaintiff claims was necessary. On appeal, the Third Circuit provided much needed clarification to this standard determining both (1) what is “clear evidence”? and (2) who should determine whether “clear evidence” exists?
The Third Circuit first held that the term “clear evidence” refers to the applicable standard of proof, by which a defendant must show that the FDA would have rejected a proposed label change. This standard is akin to “clear and convincing evidence,” which is more demanding than a preponderance of the evidence, but less demanding than proof beyond a reasonable doubt. Thus, to satisfy the “clear evidence” standard, a defendant must show that it is “highly probable” that the FDA would not have approved a change to the drug’s label.
The Third Circuit next held that whether “clear evidence” exists is a question of fact for the jury, rather than a question of law for the court. The court explained that at summary judgment, a court cannot decide for itself whether the FDA would have rejected a change, but instead must ask whether a reasonable jury could find that the FDA would have approved the change. In Fosamax, because both the plaintiffs and defendant submitted evidence supporting their respective positions on what the FDA would have done, the Third Circuit found that summary judgment was inappropriate.
Congratulations to the attorneys from Kellogg Hansen Todd Figel & Frederick, P.L.L.C., Weitz & Luxenberg, P.C., and Carella Byrne Cecchi Olstein Brody & Agnello, P.C. for this important decision.