This post is from Bexis:

In a decision reflective of how attorney solicitation dredges up bad cases that should never have been filed, a New Jersey appellate court has handed the defense three wins in its Accutane litigation involving inflammatory bowel disease (“IBD”).  Gaghan v. Hoffman-La Roche, Inc.,Nos. A-2717-11T2, et al., slip op. (New Jersey Super. A.D. Aug. 4, 2014)Gaghan involved three appeals, two from defense verdicts and one from a plaintiff’s verdict, affirming the defense wins and reversing the one adverse verdict.  The trial had been something of a circus – three unrelated Accutane plaintiffs’ cases tried together.  All three plaintiffs were litigation tourists from California, so that state’s law applied, which is probably why the decision is unpublished.  It certainly is detailed enough to be published, had it not been one state’s courts opining on the law of another state.

Marshall:  This plaintiff had IBD before ever taking Accutane.  His father had the disease, too.  He took only low doses.  He decided to sue after seeing a lawyer ad.  There was plenty of evidence to support the jury’s no-causation verdict.  Trivial errors at trial, cured by cautionary instruction, did not warrant a new trial.  Gaghan, slip op. at 10-16.

Andrews:  This plaintiff (a minor at the time of prescription) did not come down with IBD until after stopping Accutane  She and her mother were given the patient package insert, which had an (allegedly inadequate) IBD warning, but didn’t read it.  They also had a long risk discussion with the doctor.  Her acne (what Accutane treats) was causing serious depression.  Once again, suit was prompted by a lawyer ad.

Given the serious psychological repercussions from the plaintiff’s underlying condition, and the failure to read what information was received, the jury was justified in concluding that the plaintiff and her mother were not credible when they testified that, if they had been warned of IBD by the prescriber, they would have refused the drug.  Gaghan, slip op. at 17-21.

Gaghan:  The most important of the three.  A $2 million+ verdict is reversed.  This plaintiff’s acne was very severe and the treater testified in no uncertain terms that he considered IBD very rare and would have prescribed anyway.  He did not tell the plaintiff about IBD due to its rarity.  Plaintiff was eventually told by a doctor that Accutane hadn’t caused her IBD, but she continued to “suspect.”  Eventually, in response to a lawyer ad, she sued.

This plaintiff received and read both Accutane’s patient and physician directed warnings.  Both of them contained warnings about IBD, that plaintiff claimed were inadequate.  The warnings mentioned a “temporal” association with IBD.  Plaintiff testified, “Oops, I thought ‘temporal’ meant ‘temporary,’” but didn’t sue even after it was clear that the IBD wasn’t a temporary condition.

In an excellent discussion of California’s strong learned intermediary rule, the court concluded that the prescriber’s statement that he would have prescribed anyway, after knowing everything about the IBD risk, defeated causation as a matter of law.  Plaintiff made a quasi-informed consent argument that the doctor should nevertheless have warned her, looking for an avenue to make her self-serving, “oh, no I wouldn’t have taken the drug had I known, no matter what my doctor’s recommendation was” testimony relevant.  The court rejected this argument, holding that the doctor’s prescribing decision was central, and once he testified that he wouldn’t have warned, that was it, regardless of arguments that he “should” have.  California’s learned intermediary rule doesn’t allow a “should have warned” exception.  Definitely worth the read by any defense attorney relying on the California learned intermediary rule.

The claim was also barred by the statute of limitations.  Given the plaintiff’s continuing suspicions and the information in the warnings, which had been FDA-approved, as a matter of law she was on inquiry notice to investigate the cause of her injuries under the New Jersey discovery rule.  Gaghan, slip op. at 21-54.

Congratulations to Covington and Burling, which we think has now won reversal of every adverse Accutane verdict in the New Jersey mass tort litigation, and a tip of the cyberhat to Mike Imbroscio, for sending Gaghan to us.

  • The drug manufacturers need to clearly mention the probable side effects of the drug. So that these claims can be avoided.