The demise of the New Jersey Accutane litigation under the new mass tort judge continues apace. Today 31 more Accutane cases were dismissed for failure to establish warning causation under the learned intermediary rule. The order is here, but the actual opinion is about halfway through the PDF, so keep looking, you’ll find it.
It’s worth looking for, too.
This round of dismissals is all about the learned intermediary rule. The court recites six bases for the rule: (1) prescription drugs have risks that require a prescription in the first place; (2) prescription drugs are complex, requiring a doctor to make patient-specific assessments; (3) direct warnings to patients are impracticable’ (4) medical ethics require the physician to act as intermediary; (5) patients can’t be expected to evaluate technical information; and (6) not to put too fine a point on it – plaintiffs tend to lie once they get into litigation (“human nature is what it is”). In re Accutane Litigation, No. 271, slip op. at 7 (N.J. Super. Law Div. Jan. 29, 2016). In these 32 cases:
In each claim, there was a “willing patient” who only thought differently upon acquiring new information via the litigation process. Because the doctors, in each and every instance, testified that even with a different warning they still would have prescribed the medicine, the manufacturer’s duty is fulfilled. Because the warning is directed to the prescribing physician, she/he is afforded the opportunity to engage in “hindsight” and opine on what they would have done had they known then what they knew at the time of their deposition, Plaintiffs are not afforded an opportunity at “hindsight.”
Slip op. at 9. In only one case was summary judgment denied, without prejudice, because a deposition hadn’t been completed. Id. at 11-12.
Choice of law was no obstacle. These plaintiffs all chose to come to New Jersey and asked for New Jersey law, so they got what they asked for. Id. at 9-10. Ask for a New Jersey mass tort, and you get New Jersey law. Next time, plaintiffs, be more careful what you ask for. But since the learned intermediary rule is virtually universal, even under other states’ law (Kansas, Louisiana, California, Texas) the result is the same. Page after page of the slip opinion (pp. 11-36) consist of minor variants on the theme of no change in prescribing behavior equals no causation.