In some instances, patients who have suffered from medications or medical devices can wait too long to file a claim addressing their injuries. This was the case for a handful plaintiffs recently tossed from Accutane litigation in New Jersey.
A New Jersey Superior Court panel recently affirmed the ruling of a lower court that four patients claiming injuries due to their use of the acne medication Accutane had waited too long to file their claims. In the ruling from the three-judge Appellate Division panel, the judges said the plaintiffs would have needed to file their claims within two years of experiencing their symptoms to avoid statute of limitations issues.
This ruling represents two things. First, it is a minor victory for pharmaceutical manufacturer Hoffmann-LaRoche, which still faces thousands of additional Accutane plaintiffs in New Jersey. Second, it is a cautionary tale for patients to delay taking action when they experience injury due to medications.
Acting on Accutane Claims, But Not Soon Enough
The four plaintiffs tossed out of New Jersey’s Accutane litigation hail from locales across the country. James Boerman Jr. is from Florida. Brain Zimpfer is from Colorado. Kristy Brecke lives in Minnesota. And Gregory Luongo calls Massachusetts home.
In the plaintiff’s lawsuits, they claim that Accutane’s manufacturers failed to adequately warn patients about the drug’s potential risks. Specifically, they were not warned that use of the acne medication could lead to the development of Crohn’s disease, irritable bowel disease or other internal disorders.
In these four instances, the patients began reporting symptoms of ulcerative colitis years after beginning to take Accutane. But then waited years longer to file a claim.
Boerman began using Accutane at the age of 13, in 1990. His symptoms showed up in 2003. Three years later, in 2006, he filed a claim.
In 1999, Zimpfer started Accutane when he was 17. By 2004 he was having issues he linked to the drug. Again, he waited three years to file.
Luongo was 17 in 1996 when he began taking Accutane. In 2002 he was diagnosed with ulcerative colitis. Almost ten years later, in 2011, he filed suit.
Brecke began using Accutane at 23 in 2003. She started experiencing symptoms immediately, but didn’t file a claim until 2010.
In 2014, Atlantic County Superior Court Judge Nelson Johnson cited New Jersey’s two-year product liability statute, ruling that the plaintiffs were ineligible for the mass-tort cases assembled in the state where Hoffmann-La Roche was formerly located. This recent decision in state superior court affirmed that previous ruling.
Accutane Verdicts Add Up, Then Subtract
Hoffmann-La Roche’s Accutane was introduced in 1982. Though pulled from the market in 2009, the medication is still sold generically as isotretinoin. Used to treat severe acne, the drug was controversial from almost the beginning.
After only two years, by 1984, the U.S. Food and Drug Administration was requiring a Black Box Warning on Accutane. The warning stressed the potential for fetal abnormalities in women who were pregnant or became pregnant while taking the medication.
Risks posed to the fetuses of pregnant women include skull, ear and eye abnormalities, as well as facial dysmorphia, cleft palate and parathyroid hormone deficiency. There’s also risks of abnormalities associated with the central nervous system and cardiovascular system. There is also increased risks of spontaneous abortion and premature birth.
In 2005, the FDA introduced the iPledge program in an effort to reduce the occurrences of pregnant women taking Accutane. The program essentially requests that patients refrain from getting pregnant and agree to use multiple forms of birth control and also take monthly pregnancy tests.
Accutane’s risks were not isolated to pregnant women and their unborn babies. Through the years, Accutane has become associated with a number of negative — and especially alarming side effects — such as Crohn’s and ulcerative colitis. Patients have also complained of depression due to their use of the drug.
Also in 2005, the FDA issued an alert — resulting in a labeling change — regarding Accutane and mental health. The agency advised that patients using Accutane be monitored for symptoms including “sad mood, irritability, acting on dangerous impulses, anger, loss of pleasure or interest in social or sports activities, sleeping too much or too little, changes in weight or appetite, school or work performance going down, or trouble concentrating, or for mood disturbance, psychosis, or aggression.”
Accutane plaintiffs complaining of injuries — both mental and physical — have added up over the years. Currently, there are thousands, in state court in both New Jersey and Florida.
In the past few years, Accutane verdicts have also added up. In 2007, the first major verdict against Hoffmann-La Roche awarded a patient who required multiple surgeries to address his irritable bowel disorder $2.6 million. The next year, another $10.5 million verdict. Then, a $2.1 million verdict in 2011, with another $18 million verdict in 2012.
However, these awards have amounted to little but hours spent in a courtroom and perhaps enough bad PR to cause the pharmaceutical manufacture to scrub the Accutane brand name. In each of these instances, Hoffmann-La Roche has appealed the ruling and seen the award overturned. In one of the cases — the 2011 verdict — the verdict was reversed due to statue of limitation issues — the same legal technicality plaguing this recently tossed quartet of plaintiffs in New Jersey.