A state appeals court has revived more than 300 suits filed against Hoffmann-La Roche by users of the acne drug Accutane who claim the drug caused them to develop inflammatory bowel disease.
The panel overturned grants of summary judgment to Hoffmann-La Roche in 18 cases where plaintiffs began taking the drug after April 2002, when the package insert was amended to say the drug was “associated with inflammatory bowel disease.” The court said plaintiffs presented evidence that Hoffmann-La Roche’s knowledge of the drug’s harmful effects was sufficient to present a jury question as to the adequacy of the warning. A finder of fact could conclude that the company concluded internally that there was a causal effect between Accutane and bowel disease, but did not disclose that in its warning.
Tuesday’s Appellate Division ruling brings the Accutane docket in state court to more than 500 cases, up from 209 cases as of July 17. The ruling comes shortly after Hoffmann-La Roche won reversal of a $25 million verdict at the Appellate Division in May in McCarrell v. Hoffmann-La Roche. That came after the state Supreme Court reinstated that verdict in January.
The panel, consisting of Judges Clarkson Fisher Jr., Mitchel Ostrer and Scott Moynihan, also reversed the dismissal of 335 cases brought by plaintiffs who were prescribed Accutane, ingested the drug and developed bowel disease in places other than New Jersey. The judge below applied New Jersey law to those cases, citing a letter by plaintiffs counsel in January 2005 that sought classification of the cases as a mass tort with centralized case management.
The letter said the cases share common issues of law and fact, including whether the defendant violated the New Jersey Products Liability Act in its marketing and sale of Accutane. Superior Court Judge Nelson Johnson of Atlantic County, who sat below, determined that under that act, summary judgment was warranted as to whether the group of out-of-state cases carried adequate warnings. But Johnson’s reliance on the 2005 letter was misplaced, and a choice-of-law analysis warrants adoption of the law of the plaintiffs’ home jurisdictions, the panel said.
“We think it inimical to a just determination of the many pending Accutane cases to interpret the 2005 letter as a waiver of a choice-of-law analysis for out-of-state plaintiffs. Moreover, this matter has long proceeded as if choice-of-law analyses would occur. For example, after entry of the [multicounty litigation] order, plaintiffs filed long-form complaints alleging claims for failure-to-warn under New Jersey’s Products Liability Act ‘and/or [sic] the analogous law of plaintiff’s state(s) of ingestion and/or [sic] prescription,” the panel said in an unsigned opinion.
A spokeswoman for the company, Amanda Fallon, said in a statement about the ruling, “Roche’s extensive FDA-approved warnings for Accutane fully describe the potential risks of using Accutane. While Roche is pleased that the court found those warnings legally adequate in well over a third of the cases at issue, Roche is considering its options for appeal as to the cases the court is allowing to proceed to trial.”
Lawyers for the plaintiffs referred questions about the ruling to David Buchanan of Seeger Weiss in New York, who did not immediately respond to a request for comment.