Court Tosses 2d Verdict in Accutane Case Because of Expert Testimony Mistakes

For the second time, an Alabama man had a jury award in his favor thrown out by New Jersey appellate courts in a case involving Accutane, which caused him to be surgically disemboweled.

The Appellate Division of New Jersey Superior Court reversed and remanded a 2010 jury award of $25.2 million, saying that it was error for the trial judge to prohibit duplicative defense expert testimony. Andrew McCarrell v. Hoffmann-La Roche, Inc. and Roche Laboratories, Case No. A-4481-12T1 (NJ Appellate Division, May 2, 2017).

The plaintiff, an Alabama resident, was prescribed by his dermatologist the acne medication Accutane, a drug manufactured by defendants. After his course of treatment with the drug, plaintiff developed inflammatory bowel disease (“IBD”) and other gastrointestinal disorders.

Eventually, his colon and rectum were surgically removed, and he underwent years of treatment.

Defective product

McCarrell filed suit in New Jersey state court against the defendants, alleging that Accutane is a defective product and that the defect proximately caused his injuries. In particular, the plaintiff claimed that defendants’ labeling and marketing of the drug was inadequate and failed to warn sufficiently of the risks of a patient contracting IBD.

The case was tried in 2007 and McCarrel recovered $2.6 million for in damages, but that verdict was overturned on an evidentiary issue,

Regarding the 2010 retrial, the appellate court said it was error for the trial judge, now deceased, to disallow duplicative expert testimony, limiting the parties to a general causation expert and a specific causation expert. This meant that two defense experts could not testify.

“[t]he trial court’s decision to disallow overlapping expert testimony about the scientific studies relating to causation was an error. The significance of those studies was a “central issue” in this hard-fought case,” the appeals court said.

Second error

The court reversed based on a second issue concerning the plaintiff’s prescribing dermatologist, Dr. Ann Gerald. Her deposition was taped in 2007 but no attorney asked her whether the doctor’s decision to prescribe Accutane would have been different if the drug had come with a stronger warning.

“Given this important factual gap in the record made significant by ensuing Alabama precedent, this matter should be remanded to enable the record to be appropriately developed on this critical issue,” the appeals court said.

“Assuming Dr. Gerald is still available, the parties should have the opportunity to re-depose her and obtain her sworn responses on the central prescribing question.”

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