ABA Newsletter Publishes Insightful Article by W&L’s Ellen Relkin

Our Ellen Relkin’s exhaustive familiarity with how choice-of-law conflicts in federal court can materially impact a plaintiff’s ability to obtain punitive damages was showcased in a current American Bar Association newsletter.

Writing in the Fall 2014 issue of Mass Torts Litigation, Relkin asserted that plaintiffs’ attorneys need to consider carefully the choice-of-law options laid before them in cases with strong punitive-damage facts.

The article is entitled “Punitive Damages Involving New Jersey Defendants.” Relkin coauthored it with Benjamin N. Cardozo School of Law student Justin Reiter.

In the piece, Relkin focused on actions targeting New Jersey pharmaceutical and medical device companies because so many are incorporated or headquartered in the Garden State.

Relkin cautioned that “choice-of-law analysis of other jurisdictions… has dictated differing results with cases from numerous jurisdictions interpreting this evolving law.”

She explained that “[t]his all began six years ago following a $9-million punitive-damages verdict against Merck in a Vioxx trial.”

On appeal, the defendant in that litigation pointed to an U.S. Supreme Court ruling that preempted other claims involving the federal Food and Drug Administration (FDA) approved products.

The defendant argued that such preemption should also extend to cases in which plaintiffs suing under New Jersey law sought punitive damages from the makers of FDA-approved products.

The New Jersey Appellate Division sided with the defendant on that point, recounted Relkin.

She went on to describe a troubling trend that finds New Jersey makers of FDA-approved products asking trial courts to apply New Jersey’s punitive-damage law, knowing full well that the elements of the law needed to prove a punitive damage claim will be deem preempted by some courts.

The twist is that these defendants also want the courts to apply the plaintiffs’ home-state law for everything else in the case if it turns out to be a governing law favorable to the defendants.

Fortunately, this defense strategy has met with only limited success with courts interpreting the same issue differently, Relkin noted.

Read the entire 4,000-word article.