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Cona/McDarby - Split Vioxx Appellate Decision

By James M. Beck and Mark Herrmann

This goes into the "breaking news" category. The New Jersey Appellate Division has rendered a split decision in the Cona/McDarby Vioxx appeal. A copy of the opinion is here. Bexis is involved in the case and thus conflicted out from saying anything substantive. Herrmann hasn't read it yet. In a nutshell, compensatory liabilty for failure to warn was affirmed against defense arguments based upon preemption, the NJ statutory presumption stemming from FDA approval, causation, and a variety of evidentiary and jury instruction points. Punitive damages were overturned based upon Buckman preemption. Damages - and, more importantly millions of dollars in attorneys fees, under the NJ Consumer Fraud Act - were overturned because the CFA was subsumed by the New Jersey Product Liability Act in product liability cases.

Full post as published by Drug and Device Law on May 29, 2008 (boomark / email).