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A New Jersey state appeals court reinstated a legal malpractice claim Dec. 27 against a firm whose medical negligence suit against a doctor prescribing tetracycline failed to include a challenge to Lederle Laboratories’ 1963 warning about the drug’s side effects. A trial judge in Essex County, N.J., had ruled that any inadequacy in the warning had no causal effect on the plaintiffs’ injury because the doctors knew of the side effects. Therefore, the lawyers didn’t err when they decided not to join the drug company in the suit against the doctors. But Appellate Division Judges Sylvia Pressler, Dorothea Wefing and Arthur Lesemann ruled that the adequacy of the 1963 warning has never been settled as a matter of law in New Jersey and a jury can decide whether the lawyers committed malpractice for not raising it. Brett Prince, the plaintiff in Prince v. Garruto, Galex & Cantor, A-955-00T1, claims his teeth were permanently discolored, a well-documented side effect of the Lederle tetracycline drugs his doctors prescribed from 1965 to 1970 when he was an infant. Prince hired the firm to sue the doctors, but the drug company wasn’t joined because the lawyers considered the 1963 warning adequate and worried that inclusion of Lederle would dilute the claim against the doctors. Unfortunately for Prince, the jury no-caused the claim against the doctors and any suit by Prince against the drug company was time-barred. Two of the name partners in the now defunct defendant firm, Bryan Garruto and Jane Cantor, are Middlesex County, N.J., Superior Court judges. In the legal malpractice case filed in 1996, the trial judge granted summary judgment on grounds that either the pediatricians or Lederle was at fault and that both could not have been. But the appellate panel said a claim could have been made that the 1963 warning failed to apprise doctors of the extent of the risk and therefore the drug wouldn’t have been prescribed as routinely as it was. The panel noted that most New Jersey cases against tetracycline manufacturers have centered on pre-1963 ingestion. Questions about the warning’s adequacy are relevant for two reasons, Pressler said in her opinion for the court. First, if the legal malpractice jury finds the warning was adequate, the lawyers didn’t commit malpractice for not raising the issue. Second, even if the jury finds the warning was inadequate, it could still find that the issue was sufficiently debatable to justify the lawyers’ strategy of omitting the company from the medical case. Defense counsel John North, a partner with Greenbaum, Rowe, Smith, Ravin, Davis and Himmel in Woodbridge, N.J., says he is still reviewing the opinion and the plaintiff’s lawyer, Dennis Cipriano of West Orange, N.J., could not be reached.

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