Anyone who cares about the extent to which a drugmaker is liable for harm caused by a medicine, and where that claim may be resolved, should pay attention to a ruling today by New Jersey’s Supreme Court.

The court decided that a lawsuit filed by Robert Rowe of Michigan, who says he took Roche’s Accutane acne drug and then attempted suicide, should be subject to Michigan law, not New Jersey law. That’s because he lives in Michigan. That’s where his doctor prescribed Accutane. That’s also where he took the drug. So the court reversed a lower court and dismissesd Rowe’s case against Roche.

Like a lot of people, Rowe filed suit in New Jersey for a couple of reasons: the drugmaker is based in New Jersey (Roche has US headquarters in the Garden State), and New Jersey has liberal consumer protection laws. This explains why there are so many mass torts involving a slew of different drugmakers stacked up in New Jersey state courts.

For Rowe, filing in Michigan would have posed an additional problem. The state has an unusual law that srictly limits anyone from suing a drugmaker, unless they can prove info was deliberately withheld or misrepresented, causing the FDA not approve the med. This is called pre-emption and drugmakers are trying to use this notion to deflect product-liability lawsuits around the country.

Beyond Mr. Rowe and any issues he encounters back home, today’s ruling suggests that plaintiffs should be prepared to look to their own state laws for relief. That will no doubt upset plaintiffs’ lawyers, who enjoy doing business in New Jersey and taking advantage of its consumer protection provisions. And it will no doubt comfort drugmakers, who accuse those same lawyers of forum shopping.

Further reading…
The NJ Supreme Court opinion;
The Drug and Device Law blog, written by two lawyers who rep drugmakers.

[tags]Accutane, Consumer Protecion, Michigan, Product Liability, Roche[/tags]