Update on Recent Decisions from New Jersey’s Pelvic Mesh and Ovarian Cancer/Talc Litigation

We wanted to update our readers on two decisions from the New Jersey Appellate Division that were the subject of recent posts.

In March, we reported on an opinion from the Appellate Division that came out of the centralized pelvic mesh litigation pending in Bergen County, New Jersey reversing the verdicts in favor of plaintiffs in two cases because the trial courts had precluded the defendants from introducing key evidence relating to FDA clearance of the products at issue under Section 510(k). Following the issuance of the Appellate Division’s opinion, as expected, the plaintiffs in the two cases filed a petition for certification to the New Jersey Supreme Court, asking for New Jersey’s highest court to weigh in on—and reverse—the decision of the Appellate Division. Thus far, the Supreme Court has not yet acted on the plaintiffs’ application, but we will continue to follow this important issue.

In addition, we also recently reported on an opinion from the Appellate Division that came out of the ovarian cancer/talc litigation pending in Atlantic County, New Jersey reversing the trial court’s detailed opinion precluding certain of plaintiffs’ experts. The defendants in that case sought certification from the New Jersey Supreme Court, but earlier this year the Supreme Court rejected the defendants’ application, meaning that the Appellate Division’s reversal of the trial court’s opinion stands. This is a disappointing result for all those who believed that the trial court’s detailed consideration of the admissibility of the challenged experts was precisely the kind of discretionary review that should be accorded deference and upheld. Perhaps, however, the silver lining here can be found when trial courts in New Jersey deny motions to preclude experts, and the Appellate Division’s apparent willingness to forego deference to the trial court and instead conduct its own analysis can be used to justify future applications to the Appellate Division to step in and, over the contrary conclusion of a trial court, preclude inadmissible expert testimony. Time will tell, and if we learn of such efforts, we will be happy to share our thoughts.

 

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