A New Jersey appellate court has issued an opinion on three cases in the ongoing Accutane litigation in Atlantic County. NJCJI had expressed concerns over fairness of the lower court’s proceedings, and readers may also recall that Roche had sought the recusal of the trial judge in question, Judge Higbee, who recently was elevated to the appellate court. This decision reverses Judge Higbee on several key points.


In short, defendant Roche prevailed in all three cases included in this consolidated decision. Two jury verdicts for defendant were upheld, with the court finding ample evidence to support the jury’s conclusions. In the third and most interesting case, the court overturned a $2.1 million jury verdict and found for the defendant as a matter of law, on both causation and statute of limitations grounds.


On the question of whether the allegedly inadequate warning was the proximate cause of the patient’s decision to take Accutane, the court determined that the plaintiff had failed to demonstrate that a stronger warning on the drug would have affected the doctor’s decision to recommend or prescribe the medication. And at least with respect to the California version of the learned intermediary doctrine, the court found that as a matter of law, the critical question is whether a different warning would have altered the prescribing doctor’s conduct. The California version of the doctrine applied since that was the home state of the plaintiff, but the court noted that New Jersey was also among the states with a learned intermediary doctrine.


On the question of the statute of limitations, the court applied New Jersey law and further clarified the requirements of New Jersey’s equitable discovery rule. New Jersey has a two year statute of limitations for personal injury claims, but the limitations period only begins when the injured party knows or should reasonably have discovered the essential fact of the claim.


The court determined that, among other factors, when the plaintiff had read the FDA approved warning, and had been sufficiently suspicious of the connection between the product and her condition to discuss with her doctor, the plaintiff knew or should have known enough to file a claim, as a matter of law. The plaintiff’s complaint in this case was therefore barred by the two-year statute of limitations.


“Judges Ashrafi, St. John, and Leone should be lauded for their reasonable decision-making and dedication to the rule of law,” said NJCJI president Marcus Rayner. “The decline of New Jersey’s pharmaceutical industry coincides with a rise in pharmaceutical tort litigation, but reasonable decisions like this one are a first step toward reversing that trend. When businesses see that New Jersey’s court system is no longer out to get them, they are going to be more likely to invest in the state. As this case becomes precedent that other New Jersey courts rely on, the state might see itself removed from the American Tort Reform Association’s (ATRA) annual list of ‘Judicial Hellholes.’”


The case is Gillian Gaghan v. Hoffmann-La Roche Inc., ATL-l-1246-06, New Jersey Superior Court, Atlantic County.


News Coverage of this Case


Roche Wins Reversal of $2 Million Accutane Trial Verdict

David Voreacos and Jef Feeley Bloomberg

Roche Holding AG (ROG) won reversal of a $2.1 million verdict by a New Jersey jury in favor of a California woman who blamed the company’s Accutane acne drug for her inflammatory bowel disease.

Full Story.


Roche Win Upheld In ‘Twin Peaks’ Star’s Accutane Case

Sindhu Sundar Law 360

The New Jersey Appellate Division on Monday affirmed a jury verdict in favor of pharmaceuticals giant Hoffmann-La Roche Ltd. in a suit over the alleged inflammatory bowel disease risks of its acne drug Accutane that had been brought by James David Marshall, who starred in the cult classic television show “Twin Peaks.”

Full Story.