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Jersey Barrier Still Stands

By James M. Beck and Mark Herrmann

New Jersey Vioxx plaintiffs weren't going to let a little thing like losing in the New Jersey Supreme Court keep them from trying to certify their nationwide consumer fraud class action. But yesterday, Judge Higbee, the trial judge assigned the Vioxx mass tort in New Jersey, saw it differently. She denied class certification for a second time. Here's the opinion.

Highlights:

(1) Don't simply repeat yourself on a motion for reconsideration - it won't work. Slip op. at 2-3.

(2) Causation is different from reliance. Just because the statute doesn't require reliance, doesn't mean that causation can somehow be an individualized issue. Slip op. at 4-5. And by the way . . . plaintiffs did lose that issue in the N.J. Supreme Court. Slip op. at 6.

(3) Just because the N.J. consumer fraud statute is "strong" doesn't give the courts license to ignore the statutory elements in the guise of following legislative "intent." Slip op. at 6-7.

(4) Since the class representative would likely lose her case due to the prescriber's "I would have prescribed anyway," there was no typicality. Slip op. at 7.

(5) Profit disgorgement under the guise of "unjust enrichment" is in the nature of punitive relief, since it is not recovery of any plaintiff's actual damages. Such a claim is not permitted in New Jersey. Slip op. at 7-8.

(6) The existence of inconsistent Vioxx verdicts "demonstrate[s] that a class action would not be an appropriate method of proceeding." Slip op. at 8.

Full post as published by Drug and Device Law on August 14, 2009 (boomark / email).