Under the Vioxx rule, stated previously here here, the blame – or credit – for this post goes entirely to Bexis, as Herrmann this time takes a pass due to client representation.

We’ve learned that Judge Garruto, who’s apparently clearing his docket before a bellwether HRT (hormone replacement therapy) trial and his September 1 transfer to Middlesex County Family Court, issued a bunch of orders recently in the HRT litigation.

Basically he finds that none of the plaintiffs’ HRT claims are preempted because Judge Weinstein said so in Zyprexa and Judge Higbee said so in Vioxx. We think that’s pretty thin reasoning, because, in the first instance, preemption analysis needs to consider whether the facts of the case fall within the six preempted types of claims the FDA listed in the Final Rule. We can’t even tell from the order whether that’s the case, so we can’t say how badly wrong we think this decision is.

There’s another order holding that a consumer fraud claim isn’t subsumed by the “exclusive” remedy provided by the NJ Product Liability Act because Judge Higbee didn’t think so in Vioxx. As we (well, Mark, because Bexis was muzzled) already posted here, we don’t think that rationale holds water anymore after what the NJ Supreme Court had to say about the scope of the Product Liability Act in its Lead Paint decision. To us it’s rather obvious that, if the NJ legislature had intended to revolutionize product liability litigation by allowing huge attorneys fee awards and treble damages in such suits, it would have at least said something about it in the legislative history of the CFA. It didn’t and finding the PLA subsumes all such claims seems to us to be far more in keeping with what the legislature contemplated. Fortunately, however, the plaintiff failed to prove “ascertainable loss” under the CFA. Thus, the claim ultimately failed, and this plaintiff won’t be able to try for an attorneys fee award that’s six orders of magnitude more than any recoverable damages.

There’s also a third order, stating that a “heeding presumption” will apply in HRT because Judge Walsh said so in fen-phen. See a pattern here? We’ve already posted here on why the heeding presumption doesn’t make any sense in a claim involving an inherent risk, because it becomes a presumption that nobody “properly” warned would choose to use the product at all – and that shouldn’t be a permissible argument concerning a product that the FDA approved as having benefits that outweighed its risks.

We’ll be back later with a post that involves independent analysis.