The New Jersey Appellate Division on August 11 overturned a $25 million jury verdict for Plaintiff Andrew McCarrell in his Accutane product liability suit against Hoffmann-LaRoche Inc. The court found that Alabama law and a two-year statute of limitations should apply rather than New Jersey law. In its ruling, the three-judge appeals panel applied the precedent of the New Jersey Supreme Court in a similar product liability case, Cornett v. Johnson & Johnson, where the home state dictated the applicable limitations period.

Because McCarrell, an Alabama resident, did not file his complaint in the New Jersey law division until after the two-year Alabama limitations period expired, the panel reversed the 2010 jury award of $25.2 million. The Plaintiff claimed the acne drug Accutane was responsible for the inflammatory bowel disease (IBD) that led to the loss of his colon.

Though McCarrell was diagnosed with inflammatory bowel disease in 1996, allegedly stemming from his 10-month use of Accutane, he did not file suit in the New Jersey law division until 2003. In 2007, a New Jersey jury awarded McCarrell $2.6 million, but Roche successfully challenged that verdict, getting the New Jersey Appellate Court to vacate the judgment in March 2009 on the grounds that certain Accutane usage data was unfairly withheld from the trial.

The case was retried in 2010, and the jury found that Roche failed to provide an adequate warning to McCarrell’s prescribing physician about the risks of inflammatory bowel disease from Accutane and that the failure to warn was a proximate cause of McCarrells IBD. The Defense lawyers argued the Alabama’s two-year statute of limitations should apply, but the jury awarded McCarrell $25 million in compensatory damages. The trial judge denied a subsequent motion by Roche to dismiss the case on the grounds that Alabama’s two-year statute of limitations had kicked in when he McCarrell was diagnosed in 1996, finding that the prior New Jersey appeal decision was the “law of the case.”

In discussing its reversal, the appellate panel pointed to two significant New Jersey Supreme Court precedent decisions that took place in the period between the first and second McCarren v. Roche verdicts:

• The first, laid out in P.V. v. Camp Jaysee in 2008, altered the “choice of law” analysis test for determining which state’s laws would apply in cases between litigants from two different states tried in New Jersey, finding that the law of the state where the injury occurred would apply, unless another state has a more significant relationship to the issue.

• In 2010, the New Jersey appellate court applied the principle of P.V. to the case of Cornett v. Johnson & Johnson, ultimately dismissing a Kentucky Plaintiff’s product liability action on the grounds that Kentucky’s one-year statute of limitations applied, a decision upheld by the New Jersey high court in 2012.

Given these two precedent decisions, the appellate panel said its original 2009 decision was not a binding one, and therefore did not keep the court from reexamining an issue “in the interest of fairness and justice.” The opinion read in that regard:

It would be fundamentally unfair to defendants to treat our unpublished 2009 opinion as a rigid barrier to the application of the Supreme Court’s clarified teachings in P.V. or the subsequent precedent issued in Cornett.

In applying the “choice of law” analysis, the appellate court said it was persuaded that Alabama had a more significant relationship to this lawsuit because McCarrell was a longtime resident of the state, was prescribed and ingested Accutane there, and suffered all of his injuries in Alabama. Thus, the state’s two-year statute of limitation applies. In concluding that McCarren’s complaint was time-barred under Alabama law, the appellate court reversed the trial court’s previous decision not to dismiss the complaint.

The Plaintiff has been engaged in on-going litigation against Roche for 12 years concerning the permanent and devastating injuries he developed from his use of Accutane. He had proved Roche’s responsibility for those injuries in two separate trials. His lawyers will ask the New Jersey Supreme Court “to further review the decision.” McCarrell is represented by David R. Buchanan of Seeger Weiss LLP, Michael D. Hook of Hook & Bolton PA, and Mary Jane Bass of Beggs & Lane. Hopefully, they will find a way to bring this lawsuit back to life.

Source: Law360.com

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