CAMDEN, N.J. - The summary judgment granted in March to a commercial laundry accused of occupational exposure to toluene by one of the company's drivers was affirmed Sept. 17 in the U.S. District Court for the District of New Jersey, and the presiding judge reconsidered and granted the print shop defendant summary judgment on negligence and loss of consortium claims alleged by the driver (Brian Steele, et uxor v. Aramark Corp., et al., No. 09-4340, D. N.J.; 2012 U.S. Dist. Lexis 132206).
TRENTON, N.J. - A New Jersey federal judge on Sept. 10 determined that an insured should be permitted to depose an insurer's experts and to submit its own rebuttal report regarding the allocation of defense and indemnity costs for underlying asbestos bodily injury claims (Arrowood Indemnity Co. v. Metallo Gasket Co., No. 09-04814, D. N.J.; 2012 U.S. Dist. LEXIS 128326).
NEWARK, N.J. - Parties involved in a lawsuit stemming from the distribution of contaminated concrete from a former Ford Motor Co. assembly plant in Edison, N.J., have settled the lawsuit for an undisclosed amount, according to an order filed Sept. 11 in New Jersey federal court (Ford Motor Company v. Edgewood Properties Inc., et al., No. 06-1278, D. N.J.). Subscribers may view the order available within the full article.
TRENTON, N.J. - Following a six-day bench trial, U.S. Judge Stanley R. Chesler of the District of New Jersey on Sept. 11 rejected a generic drug manufacturer's efforts to invalidate a patent covering the popular birth control drug Ortho Tri Cyclen Lo (OTCL) (Janssen Pharmaceuticals Inc. et al. v. Watson Laboratories Inc. et al., No. 08-5103, D. N.J.).
TRENTON, N.J. - A New Jersey appeals panel on Sept. 7 reversed a trial judge's ruling that dismissed a sewer authority's lawsuit against contractors who designed and installed an oil pipeline that leaked in 2004 for spoliation of evidence after finding that the record was inadequate as to whether a lesser sanction was available and more appropriate (New Jersey Municipal Environmental Risk Management Fund, et al. v. Killiam Associates Consulting Engineers, et al., No. A-1336-10T1, N.J. Super., App. Div.; 2012 N.J. Super. Unpub. LEXIS 2089). Subscribers may view the opinion available within the full article.
NEWARK, N.J. - A federal judge in New Jersey on Sept. 10 ordered a student loan debtor to pay more than $46,000 to the holder of the loan, finding that the holder met the three factors plaintiffs need to meet to recover on a promissory note (HICA Education Loan Corp. v. Avril L. Ulett, No. 11-00434, D. N.J.; 2012 U.S. Dist. LEXIS 128322).
TRENTON, N.J. - The developer and owner of a residential community in Hamilton, N.J., can pursue its claim against the New Jersey Department of Transportation (NJDOT) under the New Jersey Spill and Compensation and Control Act, a federal judge in New Jersey ruled Sept. 4 after finding that genuine questions of fact remain as to how the department obtained soil contaminated with arsenic that was delivered to the plaintiff (Woodcliff Inc. v. Jersey Construction Inc., et al., No. 11-4911, D. N.J.; 2012 U.S. Dist. LEXIS 125214).
NEWARK, N.J. - A New Jersey federal judge in an unpublished decision on Aug. 30 granted summary judgment in favor of the defendant in a health insurance reimbursement dispute, saying that the plaintiff did not meet the definition of a facility entitled to reimbursement for facility fees under the defendant's policies (Pain & Surgery Ambulatory Center v. Connecticut General Life Insurance Co., No. 11-5209, D. N.J.; 2012 U.S. Dist. LEXIS 124589).
TRENTON, N.J. - An insurer is required to obtain the maximum limit from other co-liable solvent insurers before seeking compensation from New Jersey Property Liability Insurance Guaranty Association (PLIGA) pursuant to a 2004 amendment to the New Jersey Property-Liability Guaranty Insurance Association Act, New Jersey Statutes Annotated 17:30A-1 to -20, a New Jersey appeals panel ruled Aug. 29 (Rutgers Casualty Insurance Co. v. New Jersey Property-Liability Insurance Guaranty Association and Eagle Insurance Co. in liquidation,et al., No. A-2788-10T2, N.J. Super., App. Div.; 2012 N.J. Super. Unpub. LEXIS 2056).
NEWARK, N.J. - Lead plaintiffs in a securities class action lawsuit against drug maker Merck & Co. Inc. and certain of its current and former officers and directors have failed to plead their federal securities law claims against the defendants, a federal judge in New Jersey ruled Aug. 29 in granting the defendants' motion for judgment on the pleadings (In re Merck & Co. Inc. Securities, Derivative & ERISA Litigation, MDL No. 1658, Nos. 05-1151 and 05-2367, D. N.J.). View related prior history, 2008 U.S. App. LEXIS 19230.
CAMDEN, N.J. - A federal judge in New Jersey on Aug. 27 dismissed with prejudice a couple's class action lawsuit against HSBC Mortgage Services Inc. and Mortgage Electronic Systems Inc. (MERS) after finding that their claims should have been raised during an earlier foreclosure action brought by the defendants (Francis Napoli, et al. v. HSBC Mortgage Services Inc., et al., No. 12-CV-222, D. N.J.; 2012 U.S. Dist. LEXIS 121204).
CAMDEN, N.J. - A pesticide manufacturer accused by New Jersey blueberry growers of fraudulent inducement and products liability for crop damage in a lawsuit pending in the U.S. District Court for the District of New Jersey was granted a motion to dismiss in part on Aug. 27 (Indian Brand Farms Inc., et al. v. Novartis Crop Protection Inc., No. 99-2118, D. N.J.; 2012 U.S. Dist. LEXIS 121206).
TRENTON, N.J. - A former worker for a commercial landscaping company failed to establish that a regional manager for the company is an "employer" under the Fair Labor Standards Act (FLSA) 29 U.S.C.S. § 203 , a New Jersey federal judge held Aug. 28 in dismissing the manager from the worker's wage-and-hour suit (Pastor Montero v. The Brickman Group, Ltd., et al., No. 12-2535, D. N.J.; 2012 U.S. Dist. LEXIS 121679).
TRENTON, N.J. - New Jersey's pro-rata approach to allocation of coverage among triggered insurers should be applied to claims submitted to an insolvent insurer's liquidator, a New Jersey appeals panel held Aug. 23 (In the matter of the liquidation of Integrity Insurance Co./Mine Safety Appliances Co., No. A-5191-10T1, N.J. Super., App. Div.; 2012 N.J. Super. LEXIS 144).
NEWARK, N.J. - A federal judge in New Jersey on Aug. 21 denied reconsideration of a decision rescinding an insurance policy issued to a homeowner and granting summary judgment to insurance brokers on claims for reformation and violation of the New Jersey Consumer Fraud Act (CFA) (Ace European Group and Certain Underwriters at Lloyds of London subscribing to policy number AIH-17555 v. Katrina Sappe v. Jerome Davenport and Coe Insurance Agency Inc., No. 08-412, D. N.J.; 2012 U.S. Dist. LEXIS 118696).
TRENTON, N.J. - A New Jersey federal judge on Aug. 22 ordered an insurance agent to remit premiums of $724,466 to a reinsurer; however, the judge made no findings as to whether the parties are bound by certain terms of an agreement and whether the agent would be entitled to profit-sharing payments under the terms (Everest Reinsurance Co. v. International Aerospace Insurance Services Inc., No. 11-5332, D. N.J.; 2012 U.S. Dist. LEXIS 118714).
TRENTON, N.J. - A plaintiff who claims that simian virus SV40 - the so-called "monkey virus" - contained in his polio vaccine caused his brain cancer is collaterally estopped from pursuing a state court claim because a federal court dismissed a parallel claim, the New Jersey Supreme Court ruled Aug. 15 in a 5-1 decision (Jamie Gannon, et al. v. American Home Products, Inc., et al., No. A-80 September Term 2010 066899, N.J. Sup.; 2012 N.J. LEXIS 835).
TRENTON, N.J. - The New Jersey Supreme Court yesterday ruled that some failure-to-warn claims and some breach of warranty claims involving the Cordis Cypher drug-coated coronary stent may survive federal preemption, a ruling that applies to 47 state court cases in which plaintiffs claim that they were injured or that family members died after being implanted with the now-withdrawn stent (Vonnie Cornett v. Johnson & Johnson, et al., No. A-88/89 September Term 2010 066671, N.J. Sup.; 2012 N.J. LEXIS 831).
The ruling came in a master complaint for 48 cases. While it dismissed the lead plaintiffs' claim for missing the statute of limitations, the court ruled on preemption issues affecting the remaining plaintiffs.
In 2008, Vonnie Cornett sued Cordis Corp. and parent company Johnson & Johnson in the Middlesex County Superior Court, alleging that her husband, Billie Cornett, died in 2004 five months after being implanted with a Cypher stent. The plaintiff alleged that a blood clot formed near the site of the stent and that Billie Cornett suffered a subacute stent thrombosis.
Drug-Coated Stent Design
The Cypher stent was coated with Sirolimus, a chemotherapy drug. Called a drug-eluting stent, it was designed to release Sirolimus inside a coronary artery to inhibit or prevent the artery from narrowing by inhibiting cell growth.
Vonnie Cornett alleged that the polymer used to bind the Sirolimus to the bare metal of the stent irritated the arterial wall. She also alleged that Sirolimus prevents endothelial cells from growing over the stent and created a substantial risk of abrupt clot formation on the stent.
In addition, Cornett alleged that the use of the Cypher stent in patients with coronary heart disease and diabetes, such as her husband, is off-label.
In 2011, Cordis and Johnson & Johnson announced that they were exiting the stent business.
Master Complaint For 48 Cases
At the same time Cornett filed her complaint, 47 other complaints were filed in New Jersey state court by plaintiffs from 16 states. Cornett's amended complaint was designated as the master complaint in the Cypher litigation.
The Superior Court dismissed the master complaint in its entirety. On appeal, the Superior Court Appellate Division affirmed that Cornett's complaint was time-barred but held that these plaintiff claims were not preempted: manufacturing defect; failure to warn of approved and off-label uses that failed to satisfy federal disclosure requirements or federal limits on off-label promotion with the statutory safe harbor; and breach of express warranty based on voluntary statements about approve and off-label uses outside the safe harbor.
Cornett and the defendants cross-appealed.
Lead Plaintiff Time-Barred
The Supreme Court first addressed whether Cornett's case was timely filed. It concluded that Kentucky's one-year statute of limitations, rather than New Jersey's two-year statute, applies.
Although Kentucky recognizes a discovery exception to its statute of limitations for latent injuries, the Supreme Court said "a reasonable person exercising reasonable diligence should have discovered by December 2006 that the drug-eluting stent implanted in December 2004 may have caused the May 18, 2005 thrombosis."
Turning to preemption, the court found that that the great bulk of the plaintiffs' state statutory and common-law claims are preempted by federal law.
Nonapproved Information Not Preempted
However, the court said there is an exception to preemption of failure-to-warn claims "to the extent it involves wrongdoing apart from defendants' failure to comply with FDA [Food and Drug Administration] disclosure requirements and for off-label use of the stent to the extent defendants improperly promoted that device."
The court said the plaintiffs allege that the defendants withheld information from the medical community and the public that was not part of the premarket approval process with the FDA. It said that the failure-to-warn claim as stated by the plaintiffs overcomes the rebuttable presumption by the New Jersey Product Liability Act that FDA-approved warnings are adequate.
The court added a caveat that its ruling is based on the plaintiffs' claims at an early stage of the litigation and said the defendants' have not filed an answer. It said that the master complaint contains a "colorable claim" that avoids the case law bar against private enforcement of claims of fraud on the FDA.
If discovery reveals that the plaintiffs' claims are nothing more than private fraud actions, the court said the defendants may move for summary judgment "and the trial court should not hesitate to grant such relief."
Deviating, Voluntary Statements Actionable
In addition, the Supreme Court said there is also an exception to preemption of breach of warranty claims "for voluntary statements to third parties that deviate from the approved label and packaging information material." It said that such an express warranty claim does not impose additional requirements or obligations on the defendants.
Again, the court said that if discovery shows that the warranty claims are based on statements derived from the FDA-approved label or packaging, "a motion for summary judgment would be appropriate."
The opinion was written by Judge Mary Catherine Cuff of New Jersey Superior Court Appellate Division, temporarily assigned to the Supreme Court. The other court members were Judges Dorothea O'C. Wefing, Ariel A. Rodríguez and Jose L. Fuentes, all of the Appellate Division and all temporarily assigned to the Supreme Court, and Supreme Court Justice Jaynee LaVecchia.
Supreme Court Chief Justice Stuart Rabner and Justices Barry T. Albin, Helen E. Hoens and Anne M. Patterson did not participate in the case.
Cornett is represented by Bruce D. Greenberg and Mayling C. Blanco of Lite DePalma Greenberg in Newark, N.J., and Peter E. Seidman and Alastair Findeis of Milberg in New York.
The defendants are represented by Peter C. Harvey of Patterson, Belknap, Webb & Tyler in New York.
Ellen Relkin of Weitz & Luxenberg in New York represents amicus curiae Kentucky Justice Association.
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TRENTON, N.J. - The New Jersey Supreme Court on Aug. 9 ruled that some failure-to-warn claims and some breach of warranty claims involving the Cordis Cypher drug-coated coronary stent may survive federal preemption, a ruling that applies to 47 state court cases in which plaintiffs claim that they were injured or that family members died after being implanted with the now-withdrawn stent (Vonnie Cornett v. Johnson & Johnson, et al., No. A-88/89 September Term 2010 066671, N.J. Sup.; 2012 N.J. LEXIS 831).
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NEW YORK - The Second Circuit U.S. Court of Appeals on Aug. 7 affirmed a lower federal court's ruling that Citigroup Inc. has no duty to indemnify the Port Authority of New York and New Jersey for claims related to the collapse of 7 World Trade Center following the Sept. 11 terrorist attacks (In re September 11 Property Damage and Business Loss Litigation, No. 10-3941-cv, 2nd Cir.; 2012 U.S. App. LEXIS 16341).
TRENTON, N.J. - A New Jersey state appeals panel today vacated an $11.8 million Accutane verdict after finding that under controlling Florida case law, three plaintiffs had not established that a failure to warn about the risk of inflammatory bowel disease (IBD) by defendant Hoffman-La Roche Inc. was the proximate cause of their injuries (Lance Sager v. Hoffman-La Roche Inc., et al., No. A-3427-09T4, Jordan Speisman v. Hoffman-La Roche Inc., et al., No. 3428-09T4, Kelly Mace v. Hoffman-La Roche Inc., et al., No. A-3702-09T4, N.J. Super., App. Div.) View related prior history, 2012 N.J. Super. Unpub. LEXIS 634.
TRENTON, N.J. - A New Jersey state appeals panel today vacated an $11.8 million Accutane verdict after finding that under controlling Florida case law, three plaintiffs had not established that a failure to warn about the risk of inflammatory bowel disease (IBD) by defendant Hoffman-La Roche Inc. was the proximate cause of their injuries (Lance Sager v. Hoffman-La Roche Inc., et al., No. A-3427-09T4, Jordan Speisman v. Hoffman-La Roche Inc., et al., No. 3428-09T4, Kelly Mace v. Hoffman-La Roche Inc., et al., No. A-3702-09T4, N.J. Super., App. Div.). View related prior history, 2012 N.J. Super. Unpub. LEXIS 634.
Lance Sager, Jordan Speisman and Kelly Mace, all Florida residents, sued Hoffman-La Roche Inc. and related entities in the Atlantic County Superior Court, alleging that their use of Accutane caused them to develop a variant of IBD. In 2008, a jury found that Roche failed to warn them about the risk of IBD.
Sager was awarded $2.6 million, Speisman $8.6 million and Mace $1.6 million, later reduced to $578,000 by the trial judge.
Roche appealed, arguing that the plaintiffs' claims were barred by New Jersey's two-year statute of limitations, citing the Appellate Division's ruling in another Accutane case, Kendall v. Hoffman-La Roche Inc. (No. A-2633-09, N.J. Super., App. Div.; See 8/19/10, Page 12). It also argued that it is entitled to judgment under controlling Florida law about proximate causation, since each treating dermatologist testified they would have prescribed Accutane even if there was a stronger warning about the risk of IBD.
Statute Of Limitations
The appeal had already been sent back to the trial court on the statute of limitations issue and that court found that the statute of limitations was tolled.
In its per curiam decision, the Appellate Division panel said the trial judge's "fact-sensitive determinations warrant our deference, particularly in light of the fact that the judge had the opportunity to evaluate the credibility of all three plaintiffs at the pretrial Lopez hearing [Lopez v. Swyer, 62 N.J. 267, 272-75 (1973)]."
The panel rejected Roche's argument that all three plaintiffs had not read the Accutane warnings. The panel noted that all three relied on their parents to obtain Accutane due to their young age.
In addition, the panel said the plaintiffs were not diagnosed with IBE until after they stopped Accutane and even then were not told that the drug may have caused their conditions. "There was a sound basis for the judge to conclude that a reasonable person in their shoes would not have made a litigational connection between the drug and their injuries within the ordinary limitations period," the panel said.
Doctors Wouldn't Change
Roche, the panel continued, was not prejudiced by the plaintiffs' delay in filing their lawsuits, noting that the defendant was able to "marshal considerable defense proofs at trial."
However, the Appellate Division panel concluded that because Florida precedent in Hoffman-La Roche Inc. v. Mason (27 So. 3d 75 [Fla. Dist. Ct. App. 2009]; review denied, 37 So. 3d 848 [Fla. 2010]; See 11/2/09, Page 7) is controlling, Roche is entitled to judgment in each case as a matter of law and the judgments are reversed.
"In the three cases before us, it does not appear that plaintiffs' prescribing dermatologists had independent knowledge of Accutane's claimed potential to induce IBD," the panel held. "The question then becomes whether, under Florida law, the allegedly defective warnings that those physicians received could be the proximate cause of plaintiffs' injuries."
Mason, the panel said, created an important consideration about "whether the doctors would have still prescribed the drug to plaintiffs, even if the manufacturer had supplied a more pointed warning." The panel said Mason is controlling and must be applied on the proximate cause issue.
The Atlantic County trial judge, the panel said, concluded that Mason is an "outlier decision." "It is not our place, however, to second guess the appellate courts of Florida and the wisdom of their decisions," the panel said.
"The published opinion in Mason, short and unsigned as it may be, is binding Florida precedent," the panel said. "Only the Florida Supreme Court can overturn Mason or repudiate it. That has not yet occurred."
Citing testimony by the three treating dermatologists, the panel said that "clearly establishes that all three plaintiffs cannot surmount Mason's binding legal test for proximate cause in a Florida learned intermediary situation. Although the outcome under New Jersey products liability law may well have been different, the inescapable conclusion is that the trial proofs failed in this case to establish proximate causation under controlling Florida precedent."
The panel consisted of Judges Jack M. Sabatino, Victor Ashrafi and Douglas M. Fasciale.
Roche is represented by Paul W. Schmidt and Michael X. Imbroscio of Covington & Burling in Washington, D.C., and Michelle M. Bufano of Gibbons in Newark, N.J.
The plaintiffs are represented by David R. Buchanan of Seeger Weiss in New York and Michael D. Hook of Hook & Bolton in Pensacola, Fla.
NEWARK, N.J. - A federal judge in New Jersey on Aug. 1 significantly trimmed a shareholder's state and federal securities law claims against pharmaceutical giant Merck & Co. Inc. and several of its current and former officers and directors, who are alleged to have misrepresented significant risk associated with Merck's sale and marketing of Vioxx (Stichting Pensioenfonds ABP v. Merck & Co. Inc., et al., No. 05-5060, D. N.J.).See related prior history, 2012 U.S. Dist. LEXIS 56309.
TRENTON, N.J. - New Jersey's Workers' Compensation Act precludes an injured worker from filing common-law claims against his employer's compensation provider, a New Jersey Supreme Court majority ruled Aug. 1, affirming dismissal of the worker's claims (Wade Stancil v. ACE USA, No. 1-112 September Term 2010, 067640, N.J. Sup.; 2012 N.J. LEXIS 823).
PHILADELPHIA - A Third U.S. Circuit Court of Appeals panel on July 31affirmed summary judgment for the defendants in a medical malpractice action brought by a New Jersey inmate, agreeing that the plaintiff failed to comply with the procedural requirements of the prison's grievance system prior to filing his complaint (Craig Francis Szemple v. Correctional Medical Services Inc., et al, No. 12-1703, 3rd Cir.; 2012 U.S. App. LEXIS 15756).