Consumer fraud statutes provide fertile ground for litigation in pharmaceutical product liability actions. Plaintiffs are constantly trying to expand both the scope of liability and the damages recoverable under consumer fraud theories of recovery. This article will explore the recoverability of medical monitoring damages under consumer fraud statutes, using the experience in New Jersey pharmaceutical litigation as an example.

The consumer fraud laws, or consumer protection laws, in effect in many states have some common characteristics. Most seek to provide a remedy for sharp practices and dealings in the marketplace. The New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 et seq., is one example. Like most other consumer protection laws, it prohibits as an unlawful practice “the act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing concealment, suppression or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise. �”