TRENTON, N.J. - (Mealey's) A New Jersey state appeals panel on Aug. 7 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.).
(Opinion available. Document #28-120809-012Z.)
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.) [enhanced version available to lexis.com subscribers]. 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)] [enhanced version]."
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] [enhanced version]) 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.
[Editor's Note: Lexis subscribers may download the document using the link above. The document(s) are also available at www.mealeysonline.com or by calling the Customer Support Department at 1-800-833-9844.]
For all of your legal news needs, please visit www.lexisnexis.com/mealeys.
Lexis.com subscribers may search all Mealey Publications.
Non-subscribers may search for Mealey Publications stories and documents at www.mealeysonline.com or visit www.Mealeys.com.
Mealey's is now available in eBook format!
For more information about LexisNexis products and solutions, connect with us through our corporate site.