In 2008, three Florida resident plaintiffs, in a joint trial, won jury verdicts in New Jersey state court on claims that Hoffman-La Roche had not adequately warned about the alleged link between ingesting Accutane and developing inflammatory bowel disease. Two days ago, the New Jersey Superior Court Appellate Division reversed. Sager v. Hoffmann-La Roche, Inc., Docket No. A-3427-09T4 (N.J. Sup. Ct. App. Div. Aug. 7, 2012) (link here).
The court’s analysis is pretty straightforward – First, what law applies? Answer: The parties agreed to apply the substantive law of Florida. Slip op. at 38. Second, what is Florida law on a failure to warn claim? Answer: “the plaintiff must prove that the warning to the physician was inadequate, that the inadequacy of the warning proximately caused his or her injury, and that he or she suffered an injury from using the drug.” Slip op. at 40. Third, did plaintiff fail to prove any of these elements? Answer: Yes, no proximate cause. Slip op. at 49.
The deciding factor for the New Jersey Appellate Court was the controlling published decision by Florida’s intermediate appellate court in an Accutane case – Hoffman-La Roche, Inc. v. Mason, 27 So. 3d 75 (Fla. Dist. Ct. App. 2009), review denied, 37 So. 3d 848 (Fla. 2010). The trial court had distinguished that case as a short, per curiam “outlier.” But the appellate court ruled: “It is not our place . . . to second guess the appellate courts of Florida and the wisdom of their decisions. The published opinion in Mason, short and unsigned as it may be, is binding Florida precedent.” Slip op. at 44-45.
On facts “markedly similar” to the New Jersey cases, the Mason court held that a critical consideration on proximate cause is “whether the doctors would have still prescribed the drug to plaintiffs, even if the manufacturer had supplied a more pointed warning.” Slip op. at 42 (citing Mason). In Mason, the prescribing physician testified that he “would still be willing to prescribe Accutane to his patients [today] even if there was evidence showing that it could cause IBD in rare cases.” Mason, 27 So. 3d at 77. And “even if the warning label contained all of the information suggested by [plaintiff’s] expert, he would still have prescribed the medication for [plaintiff].” Id.
Virtually identical testimony was given by the three prescribers in the New Jersey cases. Slip op. at 46-49. Therefore, because Mason is “the controlling Florida precedent, which must be applied here on the proximate cause issue,” slip op. at 44, the court held
This crucial testimony by each of the prescribing dermatologists clearly establishes that all three plaintiffs cannot surmount Mason’s binding legal test for proximate cause in a Florida learned intermediary situation. . . . [T]he inescapable conclusion is that the trial proofs failed in this case to establish proximate causation under controlling Florida precedent.
Slip op. at 49.
Jury verdicts reversed – final judgments in favor of defendants in all three cases.