Class Action’s Failure to Allege Manifest Injury Precludes Medical Monitoring Remedy Sought in Products Liability Class Action based on Use of Vioxx New Jersey Supreme Court Holds
Plaintiffs filed a products liability class action against Merck in New Jersey state court arising out of the use of the prescription drug Vioxx; the class action complaint sought to “recover the costs of medical monitoring despite [plaintiffs’] failure to allege a physical injury.” Sinclair v. Merck & Co., Inc., ___ A.2d ___ (N.J. June 4, 2008) [Slip Opn., at 2]. Defense attorneys moved to dismiss the class action, and the trial court granted the motion “reasoning that medical monitoring is an uncommon remedy that should not be applied to plaintiffs who did not allege any manifest injury.” Id. The appellate court reversed, reinstating the class action and remanding the litigation for discovery. Id. (Our article summarizing that appellate opinion may be found here.) The New Jersey Supreme Court reversed, holding that New Jersey’s Products Liability Act (PLA) “does not include the remedy of medical monitoring when no manifest injury is alleged” and holding further that the PLA is “the sole source of remedy” for the class action’s products liability claim so New Jersey’s Consumer Fraud Act (CFA) “does not provide an alternative remedy.” Id., at 3.
The history of Vioxx is well known and has been recounted in numerous news reports, court opinions and articles by this author. Suffice it to say that Merck voluntarily withdrew Vioxx from the market after the FDA concluded that use of Vioxx increased the risk of heart attacks and strokes. See Sinclair, at 3-4. Dozens of class action lawsuits followed, including the Sinclair class action, which alleged claims for negligence, violations of the PLA and CFA, breach of express and implied warranties, and unjust enrichment, on behalf of individuals “who may suffer from serious silent or latent injury for which they may require medical monitoring.” Id., at 4. Plaintiffs amended the class action complaint in March 2005 to seek as damages “the cost of diagnostic testing designed to determine whether [class members] have suffered unrecognized or serious latent injury as a result of their direct exposure to Vioxx” and “a court-administered screening program to provide medical diagnostic tests for each member of the proposed class and follow-up with an epidemiologist.” Id., at 4-5. The trial court granted Merck’s motion to dismiss the class action in its entirety, reasoning in part that while medical monitoring has been authorized in asbestos cases it has not been approved in “pure products liability action where the PLA applies,” and that only economic damages are recoverable under the CFA so medical monitoring is not authorized under that statute. Id., at 6. The appellate court reversed, concluding that the record required further development through discovery in order to determine whether “harm” under the PLA exists, id., at 6-7.
The Supreme Court reversed. Defense attorneys argued that because plaintiffs had not suffered any injury from the use of Vioxx, the class action claims failed as a matter of law. Sinclair, at 7. After reviewing the “limited authority for medical monitoring,” see id., at 9-13, the Court held that the PLA “require[s] a physical injury,” id., at 16. Because the class action complaint did not allege that plaintiffs suffered physical injury, id., at 17, the Supreme Court held that “plaintiffs cannot satisfy the definition of harm to state a product liability claim under the PLA, [and] plaintiffs’ claim for medical monitoring damages must fail.” Id., at 18. The Court also agreed with the trial court that the CFA could not provide an alternative remedy because New Jersey’s Legislature “expressly provided in the PLA that claims for ‘harm caused by a product’ are governed by the PLA ‘irrespective of the theory underlying the claim.’” Id. (citation omitted). Accordingly, the class action’s CFA claim is barred because it falls within the scope of the PLA. Id., at 19.