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Cert. Granted In McDarby

By James M. Beck and Mark Herrmann

McDarby and Cona v. Merck was the New Jersey state appellate decision that came down in May and addressed a half dozen issues that concern readers of this blog. Among other things, McDarby held that plaintiffs could not pursue personal injury product liability claims under the New Jersey Consumer Fraud Act and that a New Jersey statute, coupled with the U.S. Supreme Court's decision in Buckman, meant that punitive damages are not available in pharmaceutical products cases.

That was the good stuff.

The appellate court also rejected Merck's argument that the FDA's regulation of the package insert for Vioxx preempted all state law failure-to-warn claims.

Here's a link to our original post about McDarby.

Last week, the New Jersey Supreme Court granted Merck's petition for certiorari in McDarby, with review limited to the failure-to-warn preemption issue.

Here's a link to the grant of cert and a hat tip to Pharmalot.

Full post as published by Drug and Device Law on October 13, 2008 (boomark / email).