N. J. Supreme Court Dismisses Vioxx Medical Monitoring Claims in Putative Class Action
The New Jersey Supreme Court held last week in Phyllis Sinclair v. Merck & Co., Inc. (A-117-06) that plaintiffs cannot recover for medical monitoring under the New Jersey Product Liability Act (PLA) in the absence of a “manifest injury,” nor can they seek the same relief under the New Jersey Consumer Fraud Act (CFA). This decision eliminates the costs of medical monitoring as an element of damages in cases alleging product defects where the defect has not caused a “manifest” physical injury. It has also eliminated the CFA as a theory of liability in cases relating to risks of allegedly defective products, even where plaintiffs seek only economic damages. Justice Wallace, writing for the 5-1 majority, noted that the PLA has displaced all other theories of liability, except breach of express warranty, relating to risks associated with the use of allegedly defective consumer products.
Plaintiffs brought this 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 alleged that they faced an enhanced risk of “silent heart attacks,” and sought medical monitoring and the funding of a court-administered screening program. Although they had not sustained a manifest physical injury, they pursued claims under the PLA and the CFA.
Atlantic County Superior Court Judge Higbee granted defendant’s motion to dismiss for failure to state a claim, “reasoning that medical monitoring is an uncommon remedy that should not be applied to plaintiffs who did not allege any manifest injury.” The Appellate Division, however, found the issue not to be ripe for dismissal and remanded the case for discovery, stating that “limited medical monitoring jurisprudence” did not “necessarily preclude plaintiffs’ cause of action.” The New Jersey Supreme Court then granted Merck’s petition for certification to consider whether plaintiffs could recover the costs of medical monitoring despite their failure to allege a physical injury.
The Supreme Court identified the central issue as whether “plaintiffs' effort to recover monitoring damages is limited by the definition of 'harm' in New Jersey's Products Liability Act.” The PLA defines “harm” as including “personal physical illness, injury or death.” Merck, relying upon In Re Lead Paint Litigation, 191 N.J. 405 (2007), argued that the PLA governed all product liability claims and that plaintiffs did not allege the physical harm required to succeed on a PLA claim. In response, plaintiffs argued that the PLA does not require the existence of a physical injury. After analyzing New Jersey medical monitoring case law and parsing the PLA’s language, the court determined that PLA requires “a physical injury.”
In reaching this conclusion, the court reviewed its three earlier decisions relating to the award of medical monitoring damages, emphasizing the narrow circumstances in which plaintiffs could pursue such claims. In Ayers v. Township of Jackson, 106 N.J. 557 (1987), the court allowed medical monitoring in an environmental contamination case, based on an extensive evidentiary showing that monitoring would yield clinical benefit in light of the nature of the chemical exposures and the possible illnesses that could occur. In Mauro v. Raymark Industries, Inc., 116 N.J. 126 (1989), the court permitted medical monitoring damages in a case involving direct exposure to asbestos that resulted in pleural thickening. Finally, in Theer v. Philip Carey Co., 133 N.J. 610 (1993), the court rejected a medical monitoring damages award to a woman alleging secondhand exposure to asbestos from her husband’s clothing.
The court posed the issue in Sinclair as “whether a claim for medical monitoring requires a different result when the claim is neither brought under traditional tort principles for exposure to an environmental contaminate, nor for personal injuries as a result of exposure to asbestos, but rather is brought specifically under the PLA for the ingestion of a pharmaceutical product.” The court, after considering other product liability statutory interpretations and New Jersey’s general adoption of the Restatement (Second) of Torts § 402A (1965), which only addressed physical harms, found that the PLA’s definition of harm required a physical element. As plaintiffs did not allege physical injury, the court held that the product liability claims for medical monitoring damages failed.
Further, in considering the applicability of the CFA, the majority noted that while it normally gives broad scope to the CFA, it must adhere to the expansive scope of the language and legislative intent behind the PLA. The court found that “the 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.'" Specifically, the court held the “language of the PLA represents a clear legislative intent that, despite the broad reach we give to the CFA, the PLA is paramount when the underlying claim is one for harm caused by a product.” The court found that plaintiffs’ claim for medical monitoring clearly fell within the scope of the PLA: “The heart of plaintiffs’ case is the potential for harm caused by Merck’s drug. It is obviously a product liability claim.”
Justice Long, the sole dissenter, identified two reasons why the action should survive. First, she argued that even if medical monitoring absent physical injury does not qualify as “harm” under the PLA, plaintiffs could still seek a remedy under common law. More importantly, Justice Long interpreted the PLA to define “harm” in an expansive manner, and argued that it incorporated common law concepts of harm, including common law claims for medical monitoring absent physical injury. She would therefore have allowed the claim to go forward.
In summary, the New Jersey Supreme Court determined that absent a manifest physical injury, plaintiffs could not seek the remedy of medical monitoring under the PLA. Moreover, plaintiffs could not proceed under the CFA, as the PLA subsumes all claims, except those for breach of express warranty, associated with product risks.
The court’s decision bodes well for pharmaceutical companies and other product manufacturers who have recently found themselves as defendants in “no injury” product liability class actions in New Jersey. The court’s decision finding that the PLA displaces the CFA offers special promise, as courts are now required to look not just at the exact nature of the relief requested, but also to the nature of the allegations, in determining whether an action fits within the purview of the PLA. It gives added force, too, to the recent Appellate Division decision in McDarby v. Merck & Co., Inc., 2008 WL 2199871 (N.J. Super. A.D., May 29, 2008), wherein the court concluded that plaintiffs could not invoke the CFA to recover the purchase price of medication where plaintiffs’ claim fundamentally asserted that the defendant failed to warn of dangerous product defects. Such claims fell within the scope of the PLA, and the court would not allow plaintiffs to seek treble damages and attorneys’ fees in a product liability action. Sinclair and McDarby thus impose significant restrictions on the scope of the CFA, and recognize that, within the context of claims associated with allegedly defective products, the Legislature enacted the PLA to impose rational restrictions on the scope of defendant’s potential liability.