New Jersey Court Opens Door for Evidence of 510(k) Clearance for Medical Device Manufacturers in Product Liability Cases

The New Jersey Appellate Division issued a decision on March 2, 2021 in Hrymoc v. Ethicon, Inc., Nos. A-5151-17, A-1083-18, 2021 N.J. Super. Unpub. LEXIS 337 (App. Div. Mar. 2, 2021) that may substantially impact the landscape of litigation for medical device manufacturers in New Jersey. The Appellate Division reversed and remanded two plaintiffs’ verdicts in New Jersey pelvic mesh multi-county litigation, and held that the trial courts committed reversible error by excluding all evidence related to FDA 510(k) clearance, overturning two verdicts totaling over $83 million dollars in the process. The decision makes clear that the wholesale exclusion of evidence related to FDA 510(k) clearance denies manufacturers the right to a fair trial.
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J&J Obtains Back-to-Back Defense Verdicts in Ovarian Cancer Trials

On Friday, September 24, 2021, a Philadelphia, Pennsylvania jury rendered a defense verdict in favor of Defendant Johnson & Johnson (J&J) in the Ellen Kleiner matter. The following Monday, September 27, 2021, a St. Louis, Missouri jury rendered a defense verdict in favor of J&J in the multi-plaintiff matter of Giese, et al.
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Proximate Causation in the Legal Malpractice Context – New Jersey

New Jersey’s Supreme Court has reinstated the matter of Gilbert v. Stewart, 2021 N.J. LEXIS 773 (July 21, 2021), in which the plaintiff had filed suit against the defendant, attorney Kenyatta K. Stewart, alleging professional negligence in the practice of law. The trial court had earlier dismissed the lawsuit, finding that there were no damages proximately caused by defendant Stewart’s alleged legal malpractice, and the Appellate Division affirmed the dismissal. The Supreme Court reversed the dismissal and remanded to the trial court for further proceedings.
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New York’s First Department Refuses to Proscribe “Anchoring”

In the recent decision of Perez v. Live Nation Worldwide, Inc., 2021 NY Slip Op 02259, 141 N.Y.S.3d 845 (App. Div. 1st Dept.), the Supreme Court of New York’s Appellate Division, First Department, declined to establish a new rule prohibiting the practice of anchoring. Anchoring is a summation tactic utilized by plaintiff’s attorneys, and involves asking juries to return enormous verdicts for pain and suffering. CPLR 4016(b) does afford plaintiffs and their attorneys the right to request “a specific dollar amount” for pain and suffering from a jury. Nevertheless, CPLR 5501(c) only allows a plaintiff to be awarded “reasonable compensation,” as measured through an analysis of comparable cases. Many plaintiffs attorneys will try to “anchor” the jury’s understanding of the potential value of the case by asking for an exorbitant dollar figure, without regard to similar cases having received such a figure previously.
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Delaware Jury Trials Set to Resume Effective September 1, 2021

On May 25, 2021, the Superior Court announced that it would resume civil jury trials on September 1, 2021 in New Castle and Kent Counties. This applies to civil jury trials already scheduled for trial on or after September 1, 2021. Civil Jury trials scheduled before September 1, 2021 will be rescheduled by the trial judge.
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NJ Workers’ Compensation Carriers Must Cover Medical Marijuana

New Jersey’s Supreme Court recently affirmed an Appellate Division decision, which required that workers’ compensation insurance carriers reimburse workers who use medical marijuana to treat their work-related injuries and illnesses. The Court fond that exempting workers’ compensation insurance carriers from this responsibility would be contrary to the Legislature’s express findings, made in the New Jersey Compassionate Use Act, as well as contrary to the traditional liberal application of the New Jersey Workers’ Compensation Act
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Revisiting Personal Jurisdiction: How the Supreme Court’s Latest Decision in Ford May Change Litigation Strategy in Products Liability Cases

On March 25, 2021 the Supreme Court issued its decision in the Ford Motor Co. v. Montana Eighth Judicial District Court, et al., and in doing so affirmed the exercise of personal jurisdiction in products liability cases over out-of-state defendants, when claims are brought by an in-state plaintiff for in-state injuries. In this case, Ford had urged the Supreme Court to extend the Bristol-Myers Squibb doctrine, which had rejected the exercise of personal jurisdiction over claims by out-of-state plaintiffs against out-of-state defendants for out-of-state injuries. Based on the Bristol-Myers Squibb Co. decision, Ford maintained that specific jurisdiction should require a causal link between the defendant’s contact with the forum state and the claims in the suit. This standard would not be met in the cases at hand, as the cars involved in accidents were not designed, manufactured, or first sold in the forum states. However, a majority of the court made up of five justices rejected this argument. The majority distinguished the claims in the Ford cases from those in Bristol-Myers Squibb Co. by emphasizing that the Ford cases involved in-state plaintiffs with claims for in-state injuries. The majority held that the standard for specific jurisdiction includes suits that sufficiently relate to a defendant’s contact with the forum state, even if that contact does not have a causal link to the claims in the suit. Justice Alito and Justice Gorsuch wrote concurring opinions that also upheld the exercise of personal jurisdiction based on the facts of the matters at hand, but questioned the standard the majority opinion used.
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NJ Appellate Division Overturns $117M Talc Verdict

Yesterday the New Jersey Appellate Division reversed and remanded for new trial a $117 million verdict ($37 million in compensatory damages and $80 million in punitive damages) against Johnson & Johnson (J&J) and Imerys. As a brief background, Plaintiffs alleged in the Stephen Lanzo III and Kendra Lanzo v. Cyprus Amax Minerals Co. matter that Mr. Lanzo developed mesothelioma due to exposure to asbestos from use of J&J Baby Powder and Shower-to-Shower. On April 23, 2018, a final judgment was entered, reflecting the jury’s allocation of 70% in compensatory damages and $55 million in punitive damages to J&J, and the remaining 30% in compensatory damages and $25 million in punitive damages to Imerys.
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