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 Roche argued that it was entitled to summary judgment because, among other reasons, the plaintiffs’ doctors testified that they would nevertheless have prescribed Accutane for the plaintiffs even in the face of a more robust warning regarding the possibility of IBD.  In other words, because the doctors would have proscribed the drug with or without the stronger warnings advocated by plaintiffs, the lack of such warnings could not have been the proximate cause of their injuries.

The trial court rejected Hoffman-La Roche’s argument, but the New Jersey Appellate Division overturned the decision and dismissed plaintiffs’ claims. 

As plaintiffs were from Florida, the court applied Florida law.  The controlling Florida case is Hoffman-La Roche, Inc. v. Mason, 27 So. 3d 75 (Fla. Dist. Ct. App. 2009), which incidentally also involved IBD and Accutane.  In Mason the Florida court ruled that because the plaintiff’s dermatologist testified that he would have prescribed Accutane even if the product had included a stronger warning, “any inadequacies in Accutane’s warning label could not have been the proximate cause of Appellee’s injury.”

Following suit, the NJ Appellate Division ruled that “the inescapable conclusion is that the trial proofs failed in this case to establish proximate causation under controlling Florida precedent.”

New Jersey has been, and continues to be, home to a significant amount of pharmaceutical product liability litigation, and draws plaintiffs from many places other than the Garden State.  This summer ruling from the Appellate Division is of great significance not only to pharmaceutical defendants facing failure-to-warn claims from Florida plaintiffs in New Jersey, but also to those facing such claims from residents of any state with  law similar to that of Florida with regard to the learned intermediary doctrine.

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