New Jersey Court Holds that Whether Trial Court should Order Medical Monitoring of Vioxx Patients who Show no Signs of Illness, and Whether such Patients have a “Presently Cognizable Injury,” Requires Additional Evidence
Plaintiffs filed a putative class action against Merck in New Jersey state court for negligence, products liability, fraud and breach of warranty because they had used Vioxx for at least six consecutive weeks before the drug was removed from the market. The plaintiffs had not yet suffered any medical problems but alleged that “as a result of their direct and prolonged exposure to Vioxx, they have an enhanced risk of sustaining serious, undiagnosed and unrecognized myocardial infarctions,” and prayed for “the establishment of a court-administered medical screening program, funded by Merck.” Sinclair v. Merck & Co., Inc., — A.2d —-, 2007 WL 91446, *1 (N.J.Super.A.D. January 16, 2007). Defense attorneys moved to dismiss the class action complaint on the ground that New Jersey law did not afford the remedy of medical screening in products liability cases; the trial court agreed and granted the motion to dismiss. Id. The appellate division reversed, holding that the trial court “prematurely terminated plaintiffs’ opportunity to establish the existence of a legally cognizable claim.” Id., at *2.
In reinstating the class action complaint, the appellate division noted the “difficulty” created by “the relative paucity of New Jersey precedent.” Sinclair, at *2. The opinion discusses at length the three controlling decisions on the issue of medical monitoring, id., at *2-*6, and concluded that those cases required an analysis of “scientific and other evidence relevant to plaintiffs’ claims” in order for the trial court to properly determine “that a medical monitoring remedy should not be recognized in connection with Vioxx exposure,” id., at *6. The appellate division explicitly noted that it was “express[ing] no opinion as to the ultimate viability of plaintiffs’ action,” id., at *2, and recognized that “evidence may prove the judge to be correct” in dismissing the class action, id., at *6.
The appellate division also addressed at length the issue of whether plaintiffs “alleged a presently cognizable injury.” Sinclair, at *6. That discussion highlighted ambiguities in the three lead cases on medical monitoring, see id., at *6-*9, and led the court to reject “the bright-line basis for decision” advanced by defense attorneys, id., at *9. The appellate division refused to resolve the “presently cognizable injury” question on the basis of “bare pleadings,” holding that additional evidence was required before a decision could be made as to that issue, id., at *9. Accordingly, it reversed the judgment dismissing the class action complaint and remanded the case to the trial court. Id., at *10.