Trenton, NJThe 2011 victory for an Accutane victim claiming the acne drug caused her inflammatory bowel disease (IBD) was short-lived when a New Jersey appeals court reversed a $2.1 million verdict. And the court’s ruling sealed other cases, including actor James Marshall, known for his role in the TV show Twin Peaks.
On August 4, 2014, Gillian Gaghan lost her jury award against Roche, the maker of Accutane, “finding her claims are barred by the learned intermediary doctrine and the state’s statute of limitations,” according to Bloomberg (August 5).
An appellate panel showed that Superior Court Judge Carol Higbee in 2011 ruled incorrectly that the question of whether Accutane caused IBD was “tied to” the decision by the plaintiff to take the drug and not to her doctor’s decision to prescribe it. The court reversed the verdict after reviewing the testimony of Gaghan’s dermatologist, who said he would continue to prescribe Accutane regardless of stronger warnings about Accutane risks.
In her lawsuit, Gaghan argued that Roche had failed to warn her of Accutane risks. Her dermatologist prescribed Accutane to treat her acne back in 1998 and at the same time he provided a brochure warning patients of potential gastrointestinal risks - IBD was not on the list - and the warning told patients to stop the medication if any symptoms occur. Gaghan testified that she read the brochure.
The appellate court found that Gaghan failed to show that her dermatologist would not have prescribed Accutane if a stronger warning was on the drug.
And Gaghan sued Roche after the two-year statute of limitations had lapsed. The case is Gaghan v. Hoffman-LaRoche Laboratories et al, case number A-002717-11-T02,
Two other Accutane victims had their case tried along with Gaghan, including actor James Marshall (along with Twin Peaks fame, he also played US Marine Louden Downey in the 1992 movie A Few Good Men). The New Jersey Appellate Division again ruled in favor of Roche, saying that Marshall, who took the acne medication in the early 1990s, failed to show the drug was the main cause of his IBD. According to court documents, Roche showed that IBD can flare up after taking Accutane due to stress and not the drug itself.
More Accutane appeals?
The appellate court’s decision - that a plaintiff’s doctor would still prescribe the drug even based on stronger warnings - could affect the outcome of other verdicts, such as $25 million won by Andrew McCarrell, now in the New Jersey appellate court.
Roche also said they will appeal the $18 million verdict won by Kathleen Rossitto and Riley Wilkinson in 2012. Their verdict was the ninth victory for plaintiffs out of 13 lawsuits brought by Roche.
And in March 2014, a retrial with a New Jersey jury awarded $1.5 million and $88,000 in past medical expenses to Kamie Kendall Rees, who had her colon removed when she was 21 due to ulcerative colitis she developed when she was only 15 - after she took Accutane to treat acne. At her first trial, Rees was awarded $10.5 million.
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