Whether Medical Monitoring of Persons who Ingested Vioxx is Available cannot be Determined on “Bare Pleadings” but Requires Development of Evidence, as does Impact on Viability of Class Action due to Absence of Physical Injuries Caused by Vioxx, New Jersey State Court Holds
Plaintiffs filed a putative products liability class action against Merck in New Jersey state court purporting to represent individuals “who had taken the drug Vioxx in any dose for at least six consecutive weeks at any time between May 20, 1999 and September 30, 2004” and alleging damages arising from the use of Vioxx. Sinclair v. Merck & Co., Inc., 913 A.2d 832, 833-34 (N.J.App.Div. 2007). Though plaintiffs did not claim to have suffered any physical injuries from using Vioxx, the class action complaint prayed for the formation of “a court-administered medical screening program, funded by Merck, ‘to provide for and/or reimburse medical and diagnostic tests for each member of the Class to detect [UMIs] and other latent or unrecognized injuries and, if such injuries are detected and diagnosed, to educate Plaintiffs about available treatment strategies.’” Id., at 834. Plaintiffs argued that “the cost of diagnostic testing represented an ascertainable economic loss for which they were entitled to compensation.” Id. Defense attorneys moved to dismiss the class action on the ground that a cause of action for medical monitoring cannot stand; the trial court agreed and granted the motion. Id. The Superior Court of New Jersey, Appellate Division, reversed, holding that the dismissal of the class action complaint “prematurely terminated plaintiffs’ opportunity to establish the existence of a legally cognizable claim.” Id.
The sole issue on appeal concerned the viability of plaintiffs’ medical monitoring claim. Sinclair, at 834. The trial court had relied upon two opinions: Mauro v. Owens-Corning Fiberglas Corp., 542 A.2d 16 (N.J.App.Div. 1988), aff’d sub. nom., Mauro v. Raymark Indus., Inc., 561 A.2d 257 (N.J. 1989) and Theer v. Philip Carey Co., 611 A.2d 148 (N.J.App.Div. 1992), rev’d, 628 A.2d 724 (N.J. 1993). It concluded that “pure” products liability cases were different from toxic tort claims, and opined that the New Jersey Supreme Court would not extend the availability of medical monitoring as a remedy to the Vioxx class action claims; accordingly, it dismissed the class action complaint in its entirety. Id.
The Appellate Division bemoaned the “paucity of New Jersey precedent,” noting that it consisted of Mauro, Theer and Ayers v. Twp. of Jackson, 493 A.2d 1314 (N.J.App.Div. 1985), aff’d in part and rev’d in part, 525 A.2d 287 (1987), and that those cases bear little resemblance to the case at bar. Sinclair, at 834. It analyzed each of these cases, see id., at 834-35, and concluded that the trial court had unduly limited their holdings. The appellate court found particularly significant the Ayers court holding that “the cost of medical surveillance is a compensable item of damages where the proofs demonstrate, through reliable expert testimony predicated upon the significance and extent of exposure to chemicals, the toxicity of the chemicals, the seriousness of the diseases for which individuals are at risk, the relative increase in the chance of onset of disease in those exposed, and the value of early diagnosis, that such surveillance to monitor the effect of exposure to toxic chemicals is reasonable and necessary.” Id., at 835 (quoting Ayers). The Appellate Division also found important Mauro’s holding that in an asbestos case “[e]xposure to toxic chemicals may sustain a claim for medical surveillance damages under the criteria set forth in Ayers.” Id., at 836 (quoting Mauro).
Theer, however, appeared to limit Ayers, and it was that limitation that formed the foundation of the trial court’s ruling. In the context of yet another asbestos case, the Theer court held that “medical surveillance damages constituted a special compensatory remedy designed to address the unique harm entailed in an increased risk of future injury arising from the exposure to toxic chemicals” and that it is a remedy “not easily invoked.” Sinclair, at 838 (citing Theer). Accordingly, the task for the Appellate Division was to determine the extent to which Theer modified Ayers. The trial court’s holding turned on this issue: To what extent Theer modifies Ayers is a significant issue in the present appeal. In her opinion explaining the basis for her dismissal of plaintiffs’ claims, the motion judge observed, as she explained: “It is important to note that if only the Ayers test were to be applied here, the [defendant’s] motion would have to be denied. Accepting the pleadings as true, every element of the Ayers test would be satisfied and thus the claim would be appropriate. In determining that medical monitoring is not available in this particular case, the court is ruling that Ayers, as clarified by Theer, was not meant to extend to all products liability actions and should be limited rather than expanded.” Id. (quoting trial court order). The appellate court disagreed, holding that Theer requires “analysis of the scientific and other evidence relevant to plaintiffs’ claims” before a determination can be made as to the availability of medical monitoring as a remedy, id.
The second issue before the appellate court concerned the fact that plaintiffs had not suffered any injury. Plaintiffs argued that physical manifestations of their exposure to Vioxx is not necessary because documentary evidence establishes that they ingested the drug; defense attorneys argued that “the absence is fatal to plaintiffs’ claims, not only because Mauro and Theer demand that evidence, but also because it is required as a condition to suit under the Product Liability Act.” Sinclair, at 839 (citation omitted). After analyzing the statements made by Mauro and Theer as to physical evidence of injury, see id., at 839-41, the Appellate Division concluded that it was premature to require plaintiffs to prove physical injury at this time because it was possible that plaintiffs had “markers” of Vioxx exposure similar to “markers” identified in asbestos exposure cases. Id., at 840.
The court therefore remanded the class action to the trial court so that a more complete evidentiary record could be developed, deeming it inappropriate to resolve the issues presented based on “bare pleadings,” holding that it “lack[ed] a factual foundation for making a determination as to what, if any, relief is reasonable and necessary in the circumstances,” Sinclair, at 842. As the Appellate Division explained at page 842:
We thus decline to affirm the trial court at this stage and remand the matter for discovery and an evidentiary hearing that can supply a foundation for a determination, as a matter of law, as to the availability of compensation for medical surveillance. A sufficient evidential foundation must be developed so that the factors deemed significant in Ayers, together with other factors specifically relevant to plaintiffs’ claims, can be reasonably evaluated.