Thursday, May 29, 2008

Cona/McDarby - Split Vioxx Appellate Decision

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.

3 comments:

Anonymous said...

Re: the role of preemption, I would strong recommend pp. 58 and following of the decision.

Erwin Sigterman said...

Good post!
What happened the last few months?

Erwin
Vioxx articles

Vioxx Side Effects said...

My name is Tina Harris and i would like to show you my personal experience with Vioxx.

I am 40 years old. Have been on Vioxx for 6 months now. I had quit taking Vioxx long before the recall because it was the only new med introduced into my regimen at the time the symptoms started. I was told that if I continued to take it, I would be let go from my job because of inability to perform simple tasks.

I have experienced some of these side effects -
vertigo, diarrhea, abdominal pain, respiratory problems and memory loss. I still have memory loss and have gaps in my thinking process where I can't even think of common words I am trying to say, even to this day.

I hope this information will be useful to others,
Tina Harris