Out-of-state Accutane claim reinstated in New Jersey.

Ruling that New Jersey--rather than Michigan--law should apply, a New Jersey appellate court reinstated a lawsuit brought by a Michigan man who became depressed and attempted suicide after buying and taking the controversial acne drug Accutane in his home state. (Rowe v. Hoffmann-La Roche, Inc., 892 A.2d 694 (N.J. Super. Ct. App. Div. 2006).)

Calling the decision an important one, Howard Erichson, a professor at Seton Hall Law School in Newark, New Jersey, who specializes in complex litigation, said that if upheld, the ruling "may make New Jersey courts more appealing to the plaintiffs in pharmaceutical products liability cases." The claim would not have been allowed under Michigan law.

Accutane has been alleged to cause severe depression, sometimes leading to suicide attempts. The drug also has been reported to cause many other side effects, including increased pressure in the brain, permanent eyesight loss, and birth defects.

The plaintiff brought the action under New Jersey's Products Liability Act, claiming that the manufacturer, Hoffmann-La Roche, failed to adequately warn him of the potential for serious psychological side effects. Although the drug was prescribed and consumed in Michigan, Roche's principal place of business is New Jersey, where most of its manufacturing, sales, and distribution take place.

The trial judge ruled that Michigan products liability law governed the case and granted summary judgment in favor of the drug company. Under Michigan law, if a drug is approved by the FDA, its warning is adequate as a matter of law--which, in essence, gives immunity to drug makers in failure-to-warn cases.

Reversing that decision, the appellate court said that "the quality of New Jersey's contacts in this case, when combined with its strong governmental interest in deterring the manufacture of unsafe products within its borders, substantially outweighs the countervailing Michigan contacts and governmental interests in application of the Michigan statute. Both deterrence and compensation are interests more likely to be served in this case by application of New Jersey law than Michigan law."

One judge dissented, stating that "New Jersey should not become an asylum for claims asserted by citizens of another state whose legislature has made a policy choice to immunize a particular defendant from such litigation."

Roche has filed an appeal to the New Jersey Supreme Court.

"The decision to apply New Jersey law increases the likelihood that courts will permit class certification in pharmaceutical cases," Erichson said. "At least on this particular issue, it makes the legal standard a common question rather than an individual question that varies with each class member's home state."

He pointed out that a New Jersey appellate court has already cited Rowe as part of the reason to uphold class certification in a nationwide third-party-payer class action against Merck in the Vioxx litigation. (Int'l Union of Operating Eng'rs Local 68 Welfare Fund v. Merck & Co., No. L-3015-03, 2006 WL 827285 (N.J. Super. Ct. App. Div. Mar. 31, 2006).)

Brian Molloy, a Woodbridge, New Jersey, lawyer who handled the Accutane case on appeal, said, "The issue as to which state's law should apply is vitally important to all consumers and to New Jersey courts."