if a drug . . . which caused the claimant’s harm was subject to premarket approval or licensure by the [FDA] . . . and was approved or licensed. . . [except] where the product manufacturer knowingly withheld or misrepresented information required to be submitted under the agency’s regulations, which information was material and relevant to the harm in question.
[W]hen the forum state undertakes its search to find the proper law to apply based upon the interests of the litigants and the involved states, it is understood that normally, even in cases involving foreign elements, the court should be expected, as a matter of course, to apply the rule of decision found in the law of the forum. The law of the forum, will be displaced only if there is a compelling reason for doing so. It is applicable unless either the plaintiff or the defendant has been forced into a forum devoid of any such contact as would justify application of its own law. . . . Thus, California law presumptively applies unless Defendant can present a compelling reason why it should not.
Some of Defendant’s misconduct undoubtedly occurred in New Jersey. Whether the misconduct occurred primarily in New Jersey, however, is not discernible from the pleadings or the competent and admissible evidence submitted by the parties. What is discernible is the misconduct extends into California. Plaintiff alleges Defendant “markets Zometa to physicians in California,” “distributes and sells Zometa . . . in California,” “compensates agents who pitch the drug to doctors . . . in California” and “sends instructional materials about the drug . . . to patients and physicians in California.” Plaintiff further alleges Defendant failed to communicate the known risks of Zometa to doctors and patients in California. Under these circumstances, Defendant’s misconduct arguably occurred as much in California as in New Jersey, if not more so.
applying California’s punitive damages law would not impose an entirely new rule of punitive liability on Defendant. Its effect would be to raise the upper limit on any potential award of punitive damages. But this increased economic exposure . . . is nothing more than the cost of doing business.