H. Lockwood Miller III

All articles by H. Lockwood Miller III

 

Florida’s Second Circuit Invalidates State Legislature’s Attempt to Ban Use of Smokable Marijuana in Private

Medical marijuana has become more and more widespread and accepted throughout the country and state legislatures have drafted legislation that regulates its use.  However, when a state’s legislature oversteps its limits, the courts must be willing to respond and invalidate such measures.  That’s exactly what happened on Friday, May 25th, 2018, in People United for Medical Marijuana v. Florida Dept. of Health, Index No.: 2017-CA-1394 (2nd Judicial Circuit, Leon County). In November 2016, Floridians voted to amend their state constitution and allow…  

Lone Pine Orders: Not Just for Multi-Plaintiff Litigation?

So-called “Lone Pine” orders derive from Lone Pine v. Lore, 1986 WL 637507 (N.J. Sup. Ct. Law Div. Nov. 18, 1986), and have often been used by state and federal courts to promote efficiency in discovery by requiring plaintiffs to provide some medical or scientific proof that their exposure to a product caused their injuries before requiring the parties to engage in the usual full-blown and expensive discovery process. In most instances, Lone Pine orders are employed in cases involving large numbers…  

Failure to Identify Author Supports Rejection of Publication as Learned Treatise

The use of a learned treatise at trial, either with one’s own expert or on cross-examination of an opposing expert, arises frequently in life sciences cases. When doing so with your own expert, is it helpful for your expert to have actually relied on the publication and to be able to identify who wrote it and why it is reputable? Not surprisingly, the answer, according to a New Jersey court, is yes. Lawson v. K2 Sports USA, et al. arose out of a mountain biking…  

Word to the Wise: Let Sleeping Dogs Lie … or at Least Lawsuits Based on Them

Since it is a holiday week surrounding Fourth of July we are keeping the content light and irrelevant to our blog topic. But, when a court determines that a dog sleeping in a hallway does not create an unreasonable risk, we can’t resist. In Parella v. Compeau, a panel of the New Jersey Appellate Division tackled the question of whether a “hidden” sleeping dog created a dangerous condition at a Christmas dinner (wine) party hosted at the defendants’ house. The plaintiff alleged the homeowner…  

New Jersey, (Mass Actions) & You — Still Perfect Together?

Earlier this month, we wrote about a choice-of-law decision from the New Jersey Supreme Court that we believe will invite more out-of-state plaintiffs to forum-shop and file suit in New Jersey. This prospect of increased “litigation tourism” brought to mind the old New Jersey tourism slogan “New Jersey and You – Perfect Together.” It also brought to mind that New Jersey’s state-law version of an MDL — the New Jersey Multicounty Litigation program — remains a favorite vehicle for plaintiffs and their lawyers to pursue…  

Judicial Call for More Guidance on Punitive Damages Awards

Earlier this year, in a bellwether trial in the Actos multidistrict litigation, a Louisiana federal court jury awarded $9 billion  in punitive damages to plaintiffs who claimed that the use of the diabetes drug Actos caused bladder cancer. Not surprisingly, post-trial challenges followed. In particular, while the defendants did not challenge the amount of compensatory damages ($1,475,000), they argued that the award of punitive damages had to be reduced in order to comply with previous United States Supreme Court rulings that established limits on punitive…  

Judge Higbee to the Appellate Division?

It is being reported today that Judge Carol Higbee, who is one of several judges assigned to handle multi-county litigation pending in New Jersey, is being temporarily assigned to the Appellate Division.  Currently, Judge Higbee presides over several multi-county litigations pending in Atlantic County, New Jersey, many of which involve product liability claims against pharmaceutical products or medical devices.  The Appellate Division assignment is reported to run from mid-April to mid-June, with the possibility that it could become a permanent assignment. It remains to be…  

New Alternative Causation for Pharma Defendants in Surgeon General’s Smoking Report?

Last week, the Office of the Surgeon General of the U.S. Department of Health and Human Services released a new report on the health consequences of smoking on the 50th anniversary of the first Surgeon General’s report on smoking and health.  The report is available, click here. The 2014 report – entitled “The Health Consequences of Smoking—50 Years of Progress” – adds colorectal and liver cancer to the list of cancers causally linked to smoking. The report also adds several non-cancers to the list of…  

New Alternative Causation for Pharma Defendants in Surgeon General’s Smoking Report?

Last month, the Office of the Surgeon General of the U.S. Department of Health and Human Services released a new report on the health consequences of smoking on the 50th anniversary of the first Surgeon General’s report on smoking and health. The 2014 report – entitled “The Health Consequences of Smoking—50 Years of Progress” – adds colorectal and liver cancer to the list of cancers causally linked to smoking.  The report also adds several non-cancers to the list of chronic diseases causally linked to smoking,…  

Roche Recusal Victory Short-Lived

Last week, we commented on what appeared to be some success for Hoffman-La Roche in its efforts to force the recusal of Judge Carol Higbee from her role presiding over the centralized multicounty litigation involving Accutane.  However, the order issued by New Jersey Supreme Court Justice Jaynee LaVecchia — which imposed a stay on the trial court proceedings and appeared to us to suggest that Roche’s application would receive further review on the merits before the Appellate Division — was superceded by two further orders 

Roche Wins Battle in Recusal Fight

We continue to follow with great interest the on-going efforts by Hoffman-La Roche to force the recusal of Judge Carol Higbee, who has been overseeing the thousands of claims pending against Roche involving Accutane in the Superior Court of New Jersey.  Up until now, Roche’s efforts have been unsuccessful, beginning with Judge Higbee’s initial denial of the recusal application, followed by the New Jersey Appellate Division’s rejection of Roche’s application for leave to appeal that denial. However, Roche’s fortunes may be changing — at least…  

Generic Defendants’ PA Preemption Battle Gets Potential Boost from NJ Judge

The issue of generic-drug preemption continues to be one of the key battlegrounds in pharmaceutical product liability litigation. Recently – as we discussed here – the FDA released a proposed rule that, if adopted, would eliminate the broad preemption of failure-to-warn claims against generic pharmaceutical manufacturers established two years ago by the U.S. Supreme Court in PLIVA v. Mensing. In the wake of Mensing, multiple courts across the country have taken up efforts by generic pharmaceutical defendants to dismiss failure-to-warn claims, as well…  

New Jersey Supreme Court Denies Another MultiCounty Litigation Application Without Explanation

In a notice posted earlier this week, the New Jersey Supreme Court has denied another application seeking centralization of cases under New Jersey’s established multicounty litigation procedures.  Unfortunately, this denial — rendered with respect to cases involving DuraPro brand toilet supply lines — offers no analysis or explanation for why the Court rejected the application.  The denial by the Court — similar to prior denials — again references comments received with respect to the application for centralization without providing any discussion of those comments, or…  

Its Flu Season – Remember the National Childhood Vaccine Injury Act

It is getting to be flu season – with the annual barrage of public-service announcements about the importance of getting this year’s flu vaccine.  Vaccines were also in the news recently on reports of a polio outbreak in Syria. Vaccines also end up the subject of lawsuits, including the recent decision from the United States Court of Appeals for the Federal Circuit in Tembenis v. Sec’y Health & Human Servs., (October 28, 2013), available here, which ruled that future lost earnings cannot be awarded…  

Pennsylvania Court Rejects Bid to Reargue Mensing Denial

Last month, we reported on the attempt by several generic manufacturers of metoclopramide to seek reargument before the Pennsylvania Superior Court on the issue of whether the claims against them are preempted under the jurisprudence of the United States Supreme Court’s opinion in PLIVA, Inc. v. Mensing and its progeny. The generic manufacturers’ bid for reargument was rejected by the Pennsylvania Superior Court last week, meaning that the Superior Court’s prior divided decision that upheld the trial court’s refusal to dismiss the claims as preempted…  

Mensing-Preemption Battle Continues in Pennsylvania as Defendants Seek Reargument of Denial of Appeal

The nationwide battle over federal preemption in connection with generic drugs continues, with manufacturers of generic metoclopramide in Pennsylvania seeking to reargue the denial of their appeal challenging the court’s refusal to find the claims against them preempted. Since the 2011 Supreme Court opinion in PLIVA, Inv. v. Mensing, the issue of preemption in tort suits against manufacturers of generic pharmaceuticals has been an important issue. In short, preemption arises under the federal requirement that generic drug labeling must be the same as the…  

Accutane Recusal Fight Headed to NJ Supreme Court

We, like others, have been following the ongoing saga of Hoffman-La Roche’s efforts to secure the recusal of Judge Carol Higbee from her role presiding over the centalized multicounty litigation involving Accutane.  Last month, we noted that the Apellate Division had denied Hoffman-La Roche’s attempt to force Judge Higbee’s recusal.  Hoffman-La Roche, as reported by, among others, Law360 (registration required), continues to push this issue, and has now asked the New Jersey Supreme Court to review its request.  A copy of Hoffman-La Roche’s brief is…  

New York Federal Court Upholds “Failure to Update” Theory

For those who follow pharmaceutical litigation, the issue of preemption – as discussed primarily by the U.S. Supreme Court in PLIVA, Inc. v. Mensing and Mutual Pharmaceutical Co. v. Bartlett, as well as in a host of other state and federal court opinions – continues to be an important battleground.  Although most courts have rejected the plaintiffs’ efforts to pursue failure-to-warn claims against generic drug manufacturers, based on the generic drug makers’ federal law “duty of sameness,” under which a warning label for a…  

Centralized Status Rejected for Tylenol Liver-Injury Suits

The New Jersey Supreme Court has rejected yet another application — again by a defendant — for centralization under Rule 4:38A.  As we previously noted, Johnson & Johnson earlier this year submitted an application seeking centralization of all suits alleging liver damage from the ingestion of Tylenol in Middlesex County.  J&J’s application came on the heels of the establishment of a federal MDL on the same issue. In a notice dated last month and released last week, the NJ Supreme Court rejected J&J’s request. …  

Appellate Division Rejects Bid to Recuse Accutane Judge

Law360 is reporting (registration required) that the New Jersey Appellate Division has rejected Hoffman-La Roche’s attempt to recuse Judge Carol Higbee from her role presiding over the centralized multicounty litigation involving Accutane.   We previously discussed Roche’s efforts here, here, here, and here. According to the Law360 article, Roche intends to continue down this path and challenge the Appellate Division’s refusal to review its application.  Given New Jersey’s strong and well-established centralized multicounty litigation program, it is doubtless that many practitioners in…  

Preemption Defense Not Completely Dead for Branded Drugs

As all who follow drug and device law know full-well, the 2009 decision from the United States Supreme Court in Wyeth v. Levine represented a significant setback for brand-name drug manufacturers seeking to defend failure-to-warn claims on preemption grounds.  In Levine, the court held that state law failure-to-warn claims involving brand-name drugs are not preempted, unless there is “clear evidence” that the Food and Drug Administration (FDA)  would not have approved whatever labeling change forms the basis for the failure-to-warn claim.  Such a standard…  

Trio of Favorable Preemption Decisions for New Jersey Pharmaceutical Companies

A trio of recent preemption decisions – from the United States Supreme Court, the United States District Court for the District of New Jersey, and the Superior Court of New Jersey – are good news for pharmaceutical companies facing product liability suits in New Jersey. First, in Mutual Pharmaceutical Co. v. Barlett, the United States Supreme Court issued an important ruling (copy available here) on several critical issues affecting product liability suits against generic pharmaceutical manufacturers.  Bartlett involved claims by a woman that…  

Trio of Favorable Preemption Decisions for New Jersey Pharmaceutical Companies

A trio of recent preemption decisions – from the United States Supreme Court, the United States District Court for the District of New Jersey, and the Superior Court of New Jersey – are good news for pharmaceutical companies facing product liability suits in New Jersey. First, in Mutual Pharmaceutical Co. v. Barlett, the United States Supreme Court issued an important ruling (copy available here) on several critical issues affecting product liability suits against generic pharmaceutical manufacturers.  Bartlett involved claims by a woman that…  

Statute of Limitations Substantive not Procedural for Foreign Plaintiff Suing in New Jersey

In an opinion released on June 14, 2013, a panel of New Jersey’s Appellate Division reaffirmed that the question of which state’s statute of limitations should be applied is a substantive, not a procedural, question. The issue arose in one of the many Zometa cases pending in Middlesex County.  In this particular case, the plaintiff, a resident of Virginia, received Zometa in 2002, was diagnosed with osteonecrosis of the jaw in December 2003, and filed suit against Novartis Pharmaceuticals Corporation, the manufacturer of Zometa, in…  

Second Time’s the Charm for Centralization of NJ Mirena Lawsuits

In a notice published yesterday, the New Jersey Supreme Court has reversed its prior refusal to centralize New Jersey state court lawsuits involving Bayer HealthCare Pharmaceuticals’ Mirena contraceptive device, and has decided to centralize all such pending suits before Judge Brian Martinotti in Bergen County. As we noted previously, Bayer submitted an application last year seeking centralization of its Mirena litigation in Middlesex County, but its request was denied several months ago.  In March, Bayer resubmitted its application, and comments supporting the application were…  

Tylenol Subject of Latest New Jersey Centralized Management Request

Suits alleging liver damage from acetaminophen are the latest subject of a request for centralized management in New Jersey.  Late last month, McNeil-PPC and Johnson & Johnson submitted an application seeking centralized management of all pending New Jersey lawsuits involving alleged liver damage from Tylenol products. The application, which comes on the heels of the establishment of a federal Multi-District Litigation for similar suits pending in the federal courts, seeks centralization of all New Jersey Tylenol cases in Middlesex County before Judge Mayer, rather than…  

Reconsideration Sought for Multi-County Litigation Denial

Previously, we noted that the New Jersey Supreme Court denied an application by Bayer HealthCare Pharmaceuticals, Inc. for centralized management of all New Jersey claims involving the Mirena contraceptive device.  Currently, there is an application for reconsideration pending before the New Jersey Supreme Court, again seeking designation of this growing litigation as a Multi-County Litigation.  However, while both Bayer and plaintiffs have sought reconsideration — and thus appear to agree that centralization is appropriate — the sides may differ on where they want that…  

Recusal Fight in Accutane Litigation Heading to Appellate Court?

As we have discussed previously, defendants Hoffman-La Roche Inc. and Roche Laboratories Inc. recently filed a motion to recuse Judge Higbee from further handling of the centralized Accutane litigation pending before her.  Last month, Judge Higbee denied that motion.  Yesterday, as reported in Law360 (registration required), the defendants filed an application for leave to appeal Judge Higbee’s decision to the New Jersey Appellate Division, asserting that, among other things, Judge Higbee’s opinion denying their motion is further evidence of an appearance of, if not actual,…  

Punitives Verdict in Pelvic Mesh Trial

Earlier this week, we noted that the first pelvic mesh trial in New Jersey against Johnson & Johnson resulted in a plaintiff’s verdict.  Yesterday, the same jury rendered a punitive damages award against J&J.  Not surprisingly, this result has drawn immediate attention from both legal and general commentators and news outlets (e.g., Law360 (registration required), New Jersey Law Journal (registration required), Bloomberg,  Given the number of other similar claims pending against J&J in New Jersey and elsewhere, it is likely that this case will…  

Verdict for Plaintiff in First New Jersey Pelvic Mesh Trial

Yesterday, a jury in Atlantic City, New Jersey returned a verdict against Johnson & Johnson in the first vaginal mesh case to proceed to trial from among the roughly 1,800 vaginal mesh cases that have been centralized before the Hon. Carol E. Higbee of the Superior Court of New Jersey.  The plaintiff, Linda Gross of South Dakota, alleged that the Gynecare Prolift vaginal mesh product that was implanted in her was defective, and that the company had also failed to adequately warn of the dangers…  

Judge Higbee Denies Motion to Recuse

In December, we noted that defendants in the Accutane litigation pending in Atlantic County, New Jersey had filed a motion seeking to recuse Judge Carol Higbee, to whom virtually all the Accutane cases in New Jersey have been assigned since 2005.  In their application, the defendants — Hoffman-La Roche Inc. and Roche Laboratories Inc. — detailed examples of what they believed were indicative of both actual and apparent bias on the part of Judge Higbee against the defendants and in favor of the plaintiffs.  Oral…  

Stryker Hip Stem Claims Latest Multicounty Litigation in New Jersey

Earlier this month, the New Jersey Supreme Court granted an application to centralize all New Jersey state court claims involving Stryker Rejuvenate Hip Stems and ABG II Modular Hip Stems before the Hon. Brian Martinotti in Bergen County. Unlike the recent applications for centralizations of claims involving the Mirena contraceptive device and certain NexGen knee implant products — which were both denied (as we previously noted here and here) — the application for centralization of the Stryker Hip Stems claims was submitted by plaintiffs’…  

Arguments Held on Roche Motion to Recuse

Last month, we noted that defendants Hoffman-La Roche Inc. and Roche Laboratories filed a motion seeking the recusal of Judge Carol Higbee, the New Jersey State Court judge before whom virtually all claims involving Accutane pending in New Jersey have been centralized since 2005.  As reported in Law360 (registration required), arguments were held yesterday before Judge Higbee with respect to Roche’s motion.   A decision from Judge Higbee continues to be awaited with great interest.…  

Centralized Management Denied for Bayer’s Mirena Claims

In a decision reached earlier this month and posted last week, the New Jersey Supreme Court has denied an application submitted by Bayer HealthCare Pharmaceuticals, Inc. for centralized management of all pending state court actions involving its Mirena contraceptive device.  No reasons for the denial are provided in the notice, so practitioners in this area are left without any guidance as to why the Supreme Court rejected the application.  This is similar to the Supreme Court’s previous denial of centralization of the litigation involving NexGen…  

Recusal Motion Filed Against Multicounty Litigation Judge

Earlier this week, defendants Hoffman-La Roche Inc. and Roche Laboratories Inc. filed a motion before the Hon. Carol E. Higbee, J.S.C. – the judge to whom virtually all of the Accutane litigation pending in New Jersey state court has been assigned since 2005 – asking Judge Higbee to disqualify herself from further oversight of the Accutane litigation pending before her.  Not surprisingly, this filing has drawn immediate attention from commentators such as the New Jersey Law Journal (registration required) and Law360 (same).   Roche’s brief details…  

Another Centralized Pharmaceutical Litigation in New Jersey?

As we have posted about before, New Jersey has an established system for coordinated, centralized litigation involving claims against pharmaceuticals and medical devices.  While the nomenclature has recently changed from “mass tort” to “multicounty litigation” the process and procedures remain the same. A new addition to New Jersey’s lineup of centralized pharmaceutical and medical device litigation may be in the offing:  this week, the New Jersey Judiciary posted an application submitted by Weitz & Luxenberg to formally centralize litigation involving two different hip stems…  

Doctors Who Would Have Prescribed Drug Even With More Specific Warnings Defeats Proximate Cause

While August is still viewed as a quieter one in legal circles, last month saw an important decision from the New Jersey Appellate Division on the vexsome issue of proximate cause in pharmaceutical failure-to-warn cases.  The opinion involved the claims of three Florida residents who sued Hoffman-La Roche in New Jersey over the anti-acne drug Accutane, alleging that they had developed severe cases of inflammatory bowel disease (IBD) after taking the drug and that the warnings as to the risks of IBD were insufficient.   Hoffman-La…  

New Jersey Replaces “Mass Torts” with “Multicounty Litigation”

In a move that will likely please defendants facing consolidated litigation in New Jersey, the New Jersey Supreme Court has approved changes to Rule 4:38A — the New Jersey Court Rule that authorizes the centralized management of similar cases — that will term such cases “multicounty litigation” instead of a “mass tort.”  (A complete copy of all forthcoming changes to the New Jersey Court Rules, including Rule 4:38A, is here.)  This change in nomenclature, which is effective as of September 4, 2012, does not…  

New Jersey Supreme Court Denies Centralized Management for NexGen Flex Products Claims

In a decision apparently made last month but only published at the end of last week, the New Jersey Supreme Court has denied an application for centralized management of all pending state court claims involving certain NexGen Flex knee replacement products.  We noted the pendency of this application earlier this year. Unlike many applications for centralized management or mass tort status in New Jersey that are submitted by plaintiffs — who often seek the procedural and other benefits of coordinated proceedings — the NexGen application  

New Jersey Court Backs Mensing Preemption

Several weeks ago, we discussed the issue of Mensing generic drug preemption and the anticipated decision from Judge Carol Higbee, who is presiding over the consolidated Reglan and metoclopramide litigation pending in Atlantic County.  As readers may recall, generic preemption is a battleground issue now in pharmaceutical litigation, as generic pharmaceutical defendants seek to take full advantage of the U.S. Supreme Court’s favorable ruling last year in Mensing, and plaintiffs’ attorneys try creatively to limit and narrow the scope of Mensing preemption. Judge Higbee…  

Mensing Update

Recently, we posted about the awaited decision from Judge Carol Higbee in response to the generic defendants’ motion to dismiss the plaintiffs’ claims in the consolidated litigation involving metoclopramide on the basis of the U.S. Supreme Court’s ruling last year in Pliva v. Mensing.  While courts across the country continue to take up and decide this issue – including a very favorable opinion from Judge Danny Reeves in the multi-district litigation involving propoxyphene – generic pharmaceutical manufacturers continue to await a ruling from Judge Higbee. …  

New Jersey Mass Tort Program Continues To Expand

New Jersey is known for many things, including an established state court mass tort program.  Currently, there are twenty litigations under centralized management in three different courts (Atlantic, Bergen, and Middlesex Counties) being managed by four separate judges (Hon. Carol Higbee, Hon. Brian Martinotti, Hon. Jessica Mayer, and Hon. Ann McCormick). New Jersey has a specific court rule – Rule 4:38A – that authorizes centralization of cases for coordinated management.  The New Jersey Supreme Court has also promulgated written guidelines for determining whether or not…  

FDA-Approved Warnings Insufficient to Start Limitations Clock

In Kendall v. Hoffman-LaRoche, Inc., (February 27, 2012), the New Jersey Supreme Court rejected the argument that an FDA-approved warning – entitled to a “superpresumption” of adequacy under the New Jersey Product Liability Act (PLA) – is automatically sufficient to trigger the start of the statute of limitations.  Under New Jersey’s discovery rule, a person’s two-year time window to file a claim for personal injuries, including product liability claims, does not begin to run until s/he knows, or reasonably should know, of the alleged link…  

Mensing Generic Preemption Decision Awaited in New Jersey

In 2011, the US Supreme Court’s landmark decision in PLIVA v. Mensing altered the world of pharmaceutical product liability litigation, holding that claims challenging the adequacy of warnings provided by generic drug makers were preempted.  The basic underpinning of the Supreme Court’s opinion was that, under federal law, a generic pharmaceutical had to be the same — and provide the same warnings — as the branded drug, and that any deviation by a generic manufacturer would run afoul of federal law.  Mensing involved claims against…