The Supreme Court Takes Up Accutane Appeals and an Evidence Matter

The Supreme Court announced late last Friday that it has granted review in three more cases.  Two of those cases involve the long-running Accutane Multi-County Litigation, which the Court has addressed before, in several contexts, in McCarrell v. Hoffmann-LaRoche, Inc., 227 N.J. 569 (2017), discussed here, and Kendall v. Hoffmann-LaRoche, Inc., 209 N.J. 173 (2012), discussed here.  The third is a criminal case raising multiple evidence issues.

The two Accutane matters, both of which are called In re Accutane Litigation, were discussed here and here.  [Disclosure:  In each of those appeals, I was one of the attorneys who argued for plaintiffs in the Appellate Division].  The question presented in the first Accutane case, as phrased by the Supreme Court Clerk’s office, is “Did the trial court err in barring as scientifically unreliable the testimony of the plaintiffs’ expert witnesses?”  The Appellate Division, in a published opinion at 451 N.J. Super. 153 (App. Div. 2017), concluded that the trial court erred.

The question presented in the second Accutane matter, as to which the Court granted both defendants’ petition for certification and plaintiffs’ cross-petition, is “Was plaintiffs’ evidence regarding a failure to warn sufficient to overcome the presumption of adequacy afforded by the Products Liability Act for an FDA-approved warning; and what is the appropriate resolution of the choice-of-law issues?”  A different panel of the Appellate Division, in a lengthy unpublished opinion, held that the law of each plaintiff’s state of residence would apply to that plaintiff’s case on the issue of adequacy of warnings, that under New Jersey law, plaintiffs had adduced sufficient evidence to defeat summary judgment, and that the law of most other states called for that same result while the law of eight states resulted in an affirmance of summary judgments that the Law Division had entered in favor of defendants.

The criminal appeal is State v. Brown.  The question presented there is “Among other evidentiary issues,  did the trial court err:  when it allowed a witness to testify regarding the victim’s dying declaration under N.J.R.E. 804(b)(2); and when it refused to allow defense counsel to question a police officer about information included in the officer’s search-warrant affidavit?”  The Appellate Division rejected defendants’ arguments in an unpublished opinion, and affirmed their convictions for murder and other offenses.


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