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First Thoughts on Sinclair v. Merck

By James M. Beck and Mark Herrmann

Here's my thesis: Bexis keeps winning all these cases just so Herrmann is saddled with the responsibility of writing 'em up on the blog. The SOB is a malingerer, pure and simple.

Today's news is Sinclair v. Merck & Co, No. A-117-06, slip op. (N.J. June 4, 2008). We linked to it moments ago. And here's a first take, written by Herrmann alone, since Bexis' firm is involved in the action.

Plaintiffs brought a statewide or national putative class action against Merck on behalf of people who had ingested Vioxx for at least six consecutive weeks and had not sought to recover damages for personal injuries caused by Vioxx. Plaintiffs pleaded that, even though they had suffered no physical injury, they were at enhanced risk of suffering certain injuries in the future. They sought medical monitoring relief requiring Merck to fund a court-administered screening program to provide medical diagnostic tests for each member of the class.

The trial court granted defendants' motion to dismiss; the appellate court reversed; the case went to the New Jersey Supreme Court.

New Jersey ain't a great place for defendants in this type of case. Ayers v. Township of Jackson, 106 N.J. 557 (1987), was one of the very early cases allowing medical monitoring relief, and New Jersey remains one of the few states to recognize claims for medical monitoring. (Here's a previous post on that topic, updated here and here.)

The sun was shining in the Garden State today.

Here are the two key holdings from the majority decision in Sinclair. (The decision was five to one, with Justice Albin not participating and Justice Long dissenting.)

First, "[t]he essential question is whether plaintiffs' effort to recover monitoring damages is limited by the definition of 'harm' in" New Jersey's Products Liability Act. Slip op. at 14. It is! "We read our PLA to require a physical injury." Id. at 16. "Here, it is not disputed that plaintiffs do not allege a personal physical injury. Thus, we conclude that because plaintiffs cannot satisfy the definition of harm to state a product liability claim under the PLA, plaintiffs' claim for medical monitoring damages must fail." Id. at 18.

Not bad for starters.

Second, plaintiffs sought to "avoid the requirements of the PLA by asserting their claims" under New Jersey's Consumer Fraud Act. Id. at 18. (Just last week, a New Jersey appellate court had rejected different Vioxx plaintiffs' attempts to do the same Jujitsu.) This doesn't work:
"[T]he Legislature expressly provided in the PLA that claims for 'harm caused by a product' are governed by the PLA 'irrespective of the theory underlying the claim.'" Id. at 18. "The heart of plaintiffs' case is the potential for harm caused by Merck's drug. It is obviously a product liability claim. Plaintiffs' CFA claim does not fall within an exception to the PLA, but rather clearly falls within its scope. Consequently, plaintiffs may not maintain a CFA claim." Id. at 19.

It's been an awfully good week for the good guys in New Jersey. And, given that New Jersey has historically been almost uniquely willing to recognize medical monitoring claims, this may signal further retrenchment elsewhere.

We can only hope.

Full post as published by Drug and Device Law on June 04, 2008 (boomark / email).