We previously wrote in less than glowing terms about the New Jersey Superior Court, Appellate Division’s decision in Kendall v. Hoffman-La Roche, Inc., slip op. (N.J. Super. A.D. August 5, 2010). We explained that “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 called that decision “wrongheaded,” and that was when we were being polite.
Rightheadedness may be on the way. On February 3, 2011, the New Jersey Supreme Court granted defendants’ petition and accepted certification of the appeal. According to the court’s website, the court has framed the issue as follows: “Is plaintiff’s claim involving the medication Accutane® time-barred pursuant to the presumption of the Product Liability Act, N.J.S.A. 2A:58C-4, that FDA-approved warnings provide adequate notice of the risks?” No briefing schedule has been set.
Congrats to Michael X. Imbroscio and Paul W. Schmidt of Covington & Burling, who filed the petition for certification. We’ll let you know how it turns out.