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In its upcoming term, the New Jersey Supreme Court will hear two cases that will decide the extent to which out-of-state plaintiffs suing pharmaceutical companies can reap the benefits of New Jersey’s consumer-friendly statutes – with potentially billions of dollars in damages riding on the outcome. The issue in both cases is which state has the dominant interest in having its law applied: New Jersey, where the drug companies are located, or the states of the plaintiffs’ domiciles, where the drugs were used. In Rowe v. Hoffmann-La Roche Inc., A-19-06, a split Appellate Division panel ruled in March that a Michigan man, Robert Rowe, could rely on New Jersey’s product-liability statute in his suit against Nutley-based Hoffmann-La Roche Inc. The dissenting judge said the court should apply Michigan’s statute. The Michigan law provides near-absolute immunity to pharmaceutical companies if the federal Food and Drug Administration has approved a drug for general use. New Jersey’s statute says pharmaceuticals have only a rebuttable presumption against liability. Rowe began taking Hoffmann-La Roche’s acne drug, Accutane, in 1997, when he was 16. He claims the drug led to depression and a series of suicide attempts and that the company failed to perform adequate studies about Accutane’s side effects, despite warnings from the French government. “It is well within our common knowledge that the drug industry has a major presence in New Jersey, a fact that adds to New Jersey’s interest in applying its liability law to failure-to-warn claims respecting FDA-approved drugs manufactured in this state,” Judge Barbara Byrd Wecker wrote for the majority. In International Union of Operating Engineers Local No. 68 Welfare Fund v. Merck & Co. Inc., A-22-06, the Appellate Division ruled in July that New Jersey’s product-liability statute applies to Whitehouse-based Merck & Co.’s nationwide advertising and sales campaign for Vioxx, a potent pain reliever that plaintiffs across the country claim led to severe heart problems. The Appellate Division allowed a class-action suit brought by members of the union’s welfare fund, even though most do not live in New Jersey. The panel decided, as in Rowe, that since the drugs are manufactured in New Jersey, the state has a public-policy interest in ensuring their safety. “Those drugs are used by people in all 50 states, but all the work is done here,” says Rowe’s attorney, Brian Molloy, of Woodbridge’s Wilentz, Goldman & Spitzer.

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