On November 18, 2011, the defense scored a victory in the New Jersey Zometa/Aredia mass tort program, when the court granted a motion to apply New Jersey punitive damages law. The plaintiff was a Virginia litigation tourist who brought suit in New Jersey state court despite his treatment having nothing to do with the state. See Irby v. Novartis Pharmaceuticals Corp., 2011 WL 5835414, slip op. (N.J. Super. Nov. 18, 2011). Both sides had agreed on Virginia substantive law governing the plaintiff’s causes of action, but they scuffled over choice of law in punitive damages.
Why? This isn’t the first time we’ve considered choice of law in punitive damages. New Jersey has a statute that precludes punitive damages against FDA approved drugs. N.J.S.A. 2A:58C-5(c). Not only that, but the New Jersey appellate courts have held that the only significant statutory loophole – fraud on the FDA – is preempted. See McDarby v. Merck & Co., 949 A.2d 223, 272 (N.J. Super. A.D. 2008). So, where a product is FDA approved, application of New Jersey law is tantamount to a dismissal of the punitive damages claim.
Please see full publication below for more information.
