LANCE SAGER v. HOFFMAN-LA ROCHE, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3427-09T4

A-3428-09T4

A-3702-09T4

LANCE SAGER,

Plaintiff-Respondent,

v.

HOFFMAN-LA ROCHE, INC., and

ROCHE LABORATORIES, INC.,

Defendants-Appellants,

and

F. HOFFMAN-LA ROCHE, LTD, and

ROCHE HOLDING, LTD,

Defendants.

__________________________________

JORDAN SPEISMAN,

Plaintiff-Respondent,

v.

HOFFMAN-LA ROCHE, INC., and

ROCHE LABORATORIES, INC.,

Defendants-Appellants,

and

F. HOFFMAN-LA ROCHE LTD, and

ROCHE HOLDING LTD,

Defendants.

___________________________________

KELLY MACE,

Plaintiff-Respondent,

v.

HOFFMAN-LA ROCHE, INC., and

ROCHE LABORATORIES,INC.,

Defendants-Appellants,

and

F. HOFFMAN-LA ROCHE LTD, and

ROCHE HOLDING LTD,

Defendants.

_________________________________

March 23, 2012

 

Argued March 19, 2012 - Decided

 

Before Judges Sabatino, Ashrafi, and Fasciale.

 

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket Nos. L-197-05, L-196-05, and L-199-05.

 

Paul W. Schmidt (Covington & Burling LLP) of the Washington, D.C. bar, admitted pro hac vice, argued the cause for appellants (Gibbons P.C., attorneys; Michael X. Imbroscio (Covington & Burling LLP) of the Washington, D.C. bar, admitted pro hac vice, and Mr. Schmidt, of counsel; Michelle M. Bufano, on the brief).

 

David R. Buchanan argued the cause for respondents (Seeger Weiss LLP, and Michael D. Hook (Hook & Bolton, P.A.) of the Florida bar, admitted pro hac vice, attorneys; Mr. Buchanan, on the brief).

 

Alan Klein (Duane Morris LLP) of the Pennsylvania bar, admitted pro hac vice, argued the cause for the amici curiae Ranbaxy, Inc., Ranbaxy Laboratories, Inc., Ranbaxy Pharmaceuticals, Inc., Mylan Inc., Mylan Pharmaceuticals, Inc., Mylan Bertek Pharmaceuticals, Inc., Cardinal Health, 409, Inc., Barr Laboratories, Inc., and Barr Pharmaceuticals, LLC (Duane Morris LLP, Sills Cummis & Gross, Porzio Bromberg & Newman, P.C., attorneys; Beth S. Rose, Stuart M. Feinblatt, Kenneth R. Meyer, and Brian P Sharkey, of counsel; Mr. Klein, James J. Ferrelli, John M. Lyons, and Fletcher W. Moore of the Pennsylvania bar, admitted pro hac vice, of counsel and on the brief).

PER CURIAM

Defendants Hoffman-La Roche, Inc. and Roche Laboratories, Inc. (collectively, "Roche") have appealed in this consolidated matter various issues arising out of monetary judgments entered in favor of plaintiffs Lance Sager, Jordan Speisman, and Kelly Mace following a 2008 jury trial. Plaintiffs, who are all residents of Florida, each developed inflammatory bowel disease ("IBD") after being prescribed the acne drug Accutane manufactured by Roche. Plaintiffs contend that the product warnings provided with Accutane were inadequate to convey the alleged risks of developing IBD after using the drug. Plaintiffs filed their combined lawsuit in the Law Division on January 6, 2005, alleging, among other things, that Roche is liable to them under products liability laws and common-law principles.

Prior to trial, defendant moved to dismiss each of plaintiffs' claims as time-barred under the New Jersey statute of limitations. Plaintiffs countered that their lawsuit was timely, and that the applicable limitations periods for each of them should be equitably tolled under Lopez v. Swyer, 62 N.J. 267, 272 (1973). Following an evidentiary hearing, at which each of the plaintiffs testified, the trial court concluded that their complaint was timely, and denied Roche's motion. Subsequently, the case was tried. The jury found Roche liable to each of the plaintiffs and awarded them substantial compensatory damages.

One of the many issues raised on appeal by Roche is whether the trial court erred in denying its motion to dismiss plaintiffs' claims as untimely. Recently, on February 27, 2012, the Supreme Court issued its opinion in Kendall v. Hoffman-La Roche, ____ N.J. ___ (2012), another Accutane case involving a plaintiff who developed IBD after using the drug. The Court addressed in its opinion issues concerning the statute of limitations that may bear upon plaintiffs in this case. Among other things, the Court in Kendall clarified the legal standards applicable to the equitable tolling issues, in cases such as this one, in which the Food and Drug Administration ("FDA") had approved the product warning for the prescription drug at issue. In particular, the Court held that the rebuttable presumption of the sufficiency of the FDA-approved warning, as reflected in N.J.S.A. 2A:58C-4, is a pertinent factor in evaluating the extent to which any equitable tolling should be allowed. Id. (slip op. at 29-31). The Court majority applied that standard to Kendall's circumstances and concluded that her lawsuit was not time-barred, even factoring in the public policies underlying the statutory presumption of adequacy. Id. (slip op. at 31-33). In doing so, the Court majority highlighted several distinct aspects of Kendall's use of Accutane, her interactions with her physician, her age, and her IBD symptoms, which, on the whole, justified her delay in filing suit. Ibid.

Because the Supreme Court's opinion in Kendall potentially bears upon the equitable tolling analysis with respect to the present plaintiffs, we temporarily remand the tolling issues to the trial court for re-examination in light of that new decision. See, e.g., State v. Wessells, ___ N.J. ___, ___ (2012) (slip op. at 6-8) (remanding for further fact findings in light of a recent United States Supreme Court decision); N.J. Div. of Youth & Family Servs. v. A.R.G., 179 N.J. 264, 285 (2004) (remanding for application of new standards established on appeal); In re Application of Ronson Corp., 164 N.J. Super. 68, 73 (App. Div. 1978) (remanding to apply new standards in an intervening Supreme court decision), certif. denied, 79 N.J. 492 (1979).

The trial court1 shall have the discretion on remand to take additional testimony to develop the record, if necessary, on the issues implicated by Kendall. The court may, however, choose to decide the remand issues on the existing record. To aid in the trial court's re-examination, counsel shall furnish the trial court forthwith with courtesy copies of their submissions on the present appeal relating to Kendall and the statute-of-limitations issues. As part of the remand, the trial court may also consider Roche's current argument that the statute of limitations of Florida, rather than of New Jersey, applies to plaintiffs' complaint and whether that argument is procedurally barred by Roche's prior acquiescence to the application of the New Jersey statute of limitations.2 In rendering its decision on remand, the trial court may provisionally determine, in the alternative, whether any of plaintiffs' claims are time-barred under Florida law as well as New Jersey law.3

The remand proceedings shall be completed by May 18, 2012.4 If, on remand, the trial court dismisses the claims of any of the plaintiffs as time-barred in light of Kendall, his or her counsel may file a notice of cross-appeal within ten days of the court's determination. Similarly, if the trial court renews its denial of Roche's dismissal motion, Roche may file within ten days an amended notice of appeal to include that ruling. The parties shall then simultaneously file with this court and serve supplemental briefs, along with an expedited set of the remand transcripts, within thirty days of the remand decision. The panel will advise counsel through the clerk's office if further argument is necessary.

Remanded for further proceedings. Jurisdiction is retained.

1 We reject Roche's request that a different judge be assigned to conduct the remand proceedings. We fully expect that, notwithstanding the credibility findings previously made by the trial judge at the Lopez hearing, the trial judge will consider the parties' post-Kendall arguments and the relevant proofs conscientiously and impartially.

2 Roche cites in that regard an opinion of this court in a case that has been argued before the Supreme Court and is awaiting decision. See Cornett v. Johnson & Johnson, 414 N.J. Super. 365 (App. Div. 2010), certif. granted, 205 N.J. 317 (2011).

3 In a recent submission to this panel, Roche conceded that Speisman's complaint is timely, but only under Florida's four-year statute of limitations. However, Roche continues to maintain that all three plaintiffs are time-barred under the New Jersey statute of limitations.

4 Although the panel hopes that, with the promised cooperation of counsel, the remand proceedings can be completed expeditiously by May 18, if the trial judge needs an extension of time she may request one through a letter to the panel members.