TERESA BOES and her husband, BRANDON BOES v. HOFFMANN-LA ROCHE INC. et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4493-03T31697-04T3

TERESA BOES and her husband,

BRANDON BOES, individually and

as the Natural Guardians for

CAYELIN BOES, a minor,

Plaintiffs-Appellants,

v.

HOFFMANN-LA ROCHE INC. and

ROCHE LABORATORIES INC.,

Defendants-Respondents.

____________________________________

 

Argued March 1, 2006 - Decided March 31, 2006

Before Judges Wefing, Wecker and Fuentes.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, No. L-9069-03.

Brian J. Molloy argued the cause for appellant

(Wilentz, Goldman & Spitzer, attorneys; Mr.

Molloy, of counsel and on the brief; Jeffrey J.

Brookner, on the brief).

Paul Schmidt, admitted pro hac vice, of Covington & Burling argued the cause for respondent (Peabody & Arnold, attorneys; Mary Morrissey Sullivan and

Colleen M. Hennessey, of counsel and on the brief, and Gibbons, Del Deo, Dolan, Griffinger & Vecchione, attorneys; Michael R. Griffinger and Diane E. Lifton, of counsel and on the brief).

PER CURIAM

Plaintiffs Teresa Boes and her husband Brandon appeal from a trial court order granting the motion of defendants Hoffmann-La Roche Inc. and Roche Laboratories Inc. to dismiss plaintiffs' complaint for failure to state a claim. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiffs reside in Michigan. On November 2, 2001, Teresa Boes received from her dermatologist, a Michigan physician, a prescription for Accutane, manufactured and distributed by defendants. Accutane is a teratogen and because of the potentially grave consequences if a pregnant woman were to use the drug, defendants, at the time of Mrs. Boes' prescription, had developed a Pregnancy Prevention Program. One part of that program called for the patient to review and initial a patient information and consent form. The form included the following specific provisions:

10. I understand that I cannot receive a prescription for Accutane unless I have 2 negative pregnancy test results. The first pregnancy test should be during the office visit when my prescriber decides to prescribe Accutane. The second test should be on the second day of my next menstrual cycle[,] or 11 days after the last time I had unprotected sexual intercourse, whichever is later. I understand that I will have additional pregnancy testing, monthly, throughout my Accutane therapy.

Initials: ______

11. I understand that I should not start Accutane until I am sure that I am not pregnant and have negative results from 2 pregnancy tests.

Initials: ______

Mrs. Boes reviewed and initialed the form, including paragraphs 10 and 11. Her physician signed it as well. Pursuant to that form, Mrs. Boes received a test that she understood to be a pregnancy test. Two days after executing the form, without undergoing a second test, she started taking Accutane. The test that she took, however, was not a pregnancy test but a liver enzyme test. It developed that Mrs. Boes was pregnant at the time she began taking Accutane but had not been aware of that fact. Approximately seven months later, she gave birth to Cayelin Boes, who suffers from severe cognitive and physical defects.

Plaintiffs filed suit in New Jersey in October 2003 and filed an amended complaint in April 2004. Defendants filed a motion to dismiss for failure to state a claim, and plaintiffs have appealed from the trial court order granting that motion.

In our judgment, this matter is substantially controlled by our recent decision in Banner v. Hoffmann-LaRoche, ___ N.J. Super. ___ (App. Div. 2006), in which we set forth our reasons for concluding that the warnings supplied by defendants in connection with Accutane were adequate as a matter of law. Nothing within the present record would warrant a contrary conclusion here.

The order under review is affirmed.

 

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A-4493-03T3

March 31, 2006