Reed Smith won two separate decisions in New Jersey yesterday. One of them, In re NuvaRing Litigation, No. Ber-L-3081-09, slip op. (N.J. Super. L.D. April 19, 2013), we’re not at liberty to discuss, but if you’re on our side, you won’t be disappointed reading it – in all its 91-page splendor.

The other, decision, Nelson v. Biogen Idec Inc., C.A. No. 12-7317, slip op. (D.N.J. April 19, 2013), was won on a Rule 12(b)(6) motion to dismiss with a combination of TwIqbal and preemption under Buckman Co. v. Plaintiffs Legal Committee, 531 U.S. 341 (2001).  Nelson involved the drug Tysabri, and the plaintiff’s complaint was almost totally conclusory.  The design defect claim failed to allege a feasible alternative design (not surprising; it’s a drug), and that killed the claim under New Jersey law.  Slip op. at 2.  The warning claim got the boot because it pleaded everything against “defendants” collectively, another TwIqbal no-no.  Id. at 4-5.  Several other claims didn’t even get that far, being subsumed by the New Jersey Product Liability Act.  Id. at 3. Punitive damages were also barred by the Act:

[T]he PLA provides − in no uncertain terms − that punitive damages “shall not be awarded” in a products liability case based on an FDA-approved drug. Plaintiff does not dispute that [the drug] was subject to FDA approval and was, in fact, approved – twice − by the FDA. Thus, as a general matter, the PLA precludes an award of punitive damages in this case.

Id. at 3-4.  There is, of course, a fraud on the FDA exception to the Act, but following established New Jersey law (albeit on a federal question), the court held that it was Buckman preempted:

Although the PLA has provided for one exception to this general rule, the New Jersey Appellate Division subsequently found this exception − which requires, inter alia, a showing that the product manufacturer committed a fraud on the FDA − to be preempted by federal law. Defendants’ motion to dismiss this claim is, therefore, granted.

Slip op. at 4.  That count was dismissed with prejudice. The other claims, being TwIqballed, were dismissed with leave to amend, but we doubt there’s anything (truthful) that plaintiffs can plead to avoid dismissal, which is why they made only boilerplate allegations in the first place.

One of the ironies of blogging is that we often can’t praise our own wins as much as those of other firms. That doesn’t make us any less proud, though, when the home team comes through.  Congrats to Mike Scott, and a cast of dozens on NuvaRing win, and to new partner Steve Scheve on the Tysabri victory.