Seal of the Supreme Court of New JerseyOn October 13, the New Jersey Civil Justice Institute participated in oral arguments in the case McCarrell v. Hoffmann-La Roche Inc. and Roche Laboratories Inc. Whether the New Jersey Supreme Court chooses to apply Alabama’s or New Jersey’s statute of limitations in this long-running lawsuit over the acne medicine Accutane will determine whether this case moves forward or is dismissed as untimely. The court’s decision will also provide further guidance on how our state’s lower courts should handle statute of limitations questions in choice of law situations going forward.


A Brief Overview of the Facts

In July 2003, plaintiff Andrew McCarrell filed suit against Hoffman-LaRoche for injuries that allegedly resulted from his use of the company’s acne drug Accutane. In 2007, a jury awarded McCarrell over $2.6 million in damages, but the Appellate Division reversed and remanded for a new trial because the defendants were not allowed to present contextual information on the overall number of Accutane users. The case was re-tried in 2010, and the jury awarded McCarrell just over $25 million in damages.


During both trials, the defendants argued that New Jersey should continue its policy of applying sections 145, 146, and 6 of the Restatement (Second) of Conflicts of Laws to all substantive choice of law questions in tort cases, including statute of limitations questions.


The plaintiff argued that section 142 of the Restatement, which deals specifically with statutes of limitations, should instead apply. Under 142, the default rule is the forum state’s statute of limitations applies unless the most-significant-relationship test suggests it would be more appropriate to apply the law of the state of the injury.


By the time the second verdict was appealed, the New Jersey Supreme Court had ruled in another case, Cornett v. Johnson & Johnson, that New Jersey courts should continue to treat statutes of limitations the same way they treat other substantive law when a choice of law question arises in a case, applying sections 145, 146, and 6 of the Restatement.


The Appellate Division cited Cornett in its ruling, which found that the trial court had erred in allowing the McCarrell case to move forward. However, the court questioned whether that was actually the approach the New Jersey Supreme Court would prefer since, as the plaintiff pointed out, section 142 of the Restatement does specifically address statutes of limitations questions.


What’s Happening Now?

The decision was appealed, and the New Jersey Supreme Court held oral arguments in the case on October 13, 2016. NJCJI filed an amicus brief and participated in oral arguments in order to provide the court more historical context about the development of New Jersey’s existing law.


The New Jersey Civil Justice Institute thanks David R. Kott, Edward J. Fanning, and Gary R. Tulp of McCarter & English, LLP, for their work on this case on NJCJI’s behalf.