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.