N.J. Determines to What Extent the Product Liability Act's Presumption of Adequacy Applies to Toll the Statute of Limitations

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Statutes of limitations have traditionally served a critical function in the judicial system. Not only do they compel a person to file an action within reasonable time so that the opposing party has fair opportunity to defend the case, but they also protect against the litigation of stale claims. The discovery rule is an equitable measure that was crafted out of the desire to avoid the "harsh" effects that might otherwise result from a rigid application of a statute of limitations. In the context of drug and medical device litigation, the application of the discovery rule can be a delicate balance taking into consideration a number of factors including the information set forth in a product's label. The New Jersey Supreme Court's recent decision in Kendall v. Hoffman-LaRoche, Inc., No. A-73-2010, 2012 N.J. LEXIS 160 (N.J. Feb. 27, 2012), provides some important considerations for pharmaceutical manufacturers seeking to dismiss a suit as time-barred by analyzing the extent to which the New Jersey Product Liability Act's (PLA) presumption of adequacy might impact the tolling of a statute of limitations.

In Kendall, the plaintiff, Kamie Kendall, filed suit against Hoffman-LaRoche, Inc., and other associated entities (defendants) for injuries allegedly sustained through her use of Accutane, a prescription medication used to treat recalcitrant nodular acne. Kendall was first prescribed Accutane in January 1997. Between that time and 2003, she received six courses of the medication. Approximately seven months after her third course of Accutane, in April 1999, Kendall experienced a severe case of bloody diarrhea, abdominal pain and cramping, and was diagnosed with ulcerative colitis. Since approximately 1983, the defendants warned, to varying degrees, of the potential relationship between Accutane and inflammatory bowel disease (IBD.) Ulcerative colitis, the disease with which Kendall was diagnosed, is one of the ways that IBD is manifested. On December 21, 2005, Kendall filed suit against the defendants asserting a failure to warn theory of liability, namely, that the warnings she and her doctors received concerning Accutane were inadequate and failed to sufficiently disclose the risk contracting IBD.

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