Photo of Bexis

We posted earlier about the Appellate Division’s 113-page whopper reversing a plaintiff’s Accutane verdict in McCarrell v. Hoffman-La Roche, Inc., 2009 WL 614484 (N.J. Super. A.D. March 12, 2009).  Well, more than a year later, a second Accutane verdict meets the same fate.  Here’s a copy of the opinion, Kendall v. Hoffman-La Roche, Inc., slip op. (N.J. Super. A.D. August 5, 2010).  But most of the grounds are the same as McCarrell.
One ground that isn’t, though, is the court’s holding that the trial court did not err in holding that the discovery rule tolled statute of limitations.  Slip op. 40-61 – that’s right, 21 pages to affirm a statute of limitations denial.  We don’t like that ruling because it tells drug companies “you’re damned if you do and damned if you don’t.”  The court essentially ruled that, due to the defendant’s adequate and extensive warnings about other risks (birth defects and suicide), the plaintiff could evoke the discovery rule by saying she was distracted by those warnings from another warning about a less well-established risk (inflammatory bowel disease) that she suffered:

We agree with the trial judge that the written warnings that plaintiff received in the latter part of 2003 predominantly focused upon pregnancy, and to a lesser degree, upon suicide risks.  The materials alluded to abdominal and bowel problems in a far less conspicuous or pointed manner.  Defendant’s reliance on the two consent forms signed by plaintiff is substantially undercut by the fact that neither of those forms says a word about abdominal or bowel symptoms.

Slip op. at 58-59 (emphasis added).
To us, it’s absurd and counterproductive in terms of product safety to punish a defendant’s adequate warnings, by using them to invoke the discovery rule to toll the statute of limitations for other injuries that were warned about, simply because the other warnings weren’t as “conspicuous” because the risk was less well established – and we’d have to say, less serious.  The court seems to be saying that IBD (which isn’t fatal, and is usually treatable) should have carried as prominent a warning as birth defects and suicide.
That’s (to be polite) wrongheaded.
This ruling in Kendall is simply an invitation to dilute adequate warnings about severe risks with other warnings about less severe and (in many cases) less clearly established risks.  We hope that the New Jersey Supreme Court cleans up the mess that the lower courts seem determined to create.