Sinclair v. Merck Turns 10 Years Old

Sinclair v. Merck & Co., the seminal New Jersey Supreme Court case confirming that the New Jersey Products Liability Act (PLA) is the “sole source of remedy” in a products liability action, is about to turn 10 years old. Once a hotly contested holding, Sinclair is now a settled part of New Jersey products liability jurisprudence that courts routinely and broadly apply to narrow the claims in a PLA suit to prevent double recovery for the same alleged harm.

Recently, New Jersey courts have relied on Sinclair’s reasoning to resolve important products liability questions, including the scope of the PLA and standing to assert a PLA claim. Sinclair and its progeny remain significant in today’s legal landscape in light of the United States Supreme Court’s recent jurisdictional holdings in Daimler AG v. Bauman and Bristol-Myers Squibb Co. v. Superior Court, which could increase the number of cases filed in New Jersey against companies that are incorporated or have a principal place of business here. As a result, it is critical for courts to continue to apply Sinclair and the PLA to allow only appropriate products liability claims.

The Sinclair Decision

In Sinclair v. Merck & Co., 195 N.J. 51 (2008), our Supreme Court reaffirmed that the PLA is the “sole source of remedy” in a products liability action. Relying on well-established precedent, the Supreme Court explained, “[t]he language chosen by the Legislature in enacting the PLA is both expansive and inclusive, encompassing virtually all possible causes of action in relating to harms caused by consumer and other products.” Id. at 65. Where a plaintiff attempts to plead other common law or statutory claims, “the PLA is paramount when the underlying claim is one for harm caused by a product.” Id. at 66.

Recent Applications

Since Sinclair, courts have consistently applied its holding to bar any non-PLA claim for harm allegedly caused by a product, regardless of whether the claim is pled as negligence, breach of implied warranty, misrepresentation, consumer fraud or unjust enrichment, or whether the plaintiff seeks damages for personal injury or economic loss. In particular, New Jersey courts are frequently called on to consider the breadth of PLA subsumption in cases involving concurrent assertion of products liability allegations and claims brought under the New Jersey Consumer Fraud Act (CFA).

These cases confirm that Sinclair broadly applies to preclude a CFA claim where the “heart” of the claim lies in products liability. For example, in DeBenedetto v. Denny’s, 421 N.J. Super. 312 (Law Div. 2010), aff’d o.b., 2011 N.J. Super. Unpub. (App. Div. Jan. 11), certif. denied, 205 N.J. 519 (2011), the plaintiff brought a CFA claim seeking only to recover the purchase price of his Denny’s “Moons Over My Hammy” meal, which he alleged he would not have purchased had Denny’s disclosed the sodium content of the meal. In a clear—but futile—attempt to skirt subsumption, the plaintiff specifically excluded any claim for personal injury. The court was not convinced: The PLA’s subsumption doctrine encompassed claims for economic harm where the “core” of plaintiff’s claim sounded in failure to warn.

The broad scope of the PLA required the same result in Tawil v. Ill. Tool Works, 2016 U.S. Dist. LEXIS 105964 (D.N.J. Aug. 10, 2016). In Tawil, the plaintiff alleged that the sensor of his car’s windshield wiper system was damaged by the defendant’s Rain-X windshield washer fluid because the product was incompatible with his car. The plaintiff asserted CFA and PLA claims and attempted to distinguish his CFA claim by arguing that it sought only a refund of the purchase price of Rain-X, rather than the cost to repair the damaged sensors. Again, it did not matter. Relying on Sinclair, the court ruled that the subsumption doctrine applies to claims for economic damages predicated on an alleged failure to warn of a product’s risks. The plaintiff could not avoid PLA subsumption by limiting the relief sought to the purchase price of Rain-X because “at its core, Plaintiff’s CFA claim is that Defendants failed to warn Plaintiff that Rain-X was not compatible with his vehicle’s windshield wiper system.” The court added that “[the duty] to warn of or to make safe is squarely within the theories included in the PLA.” Id. at *9 (internal quotation omitted).

Courts have also relied on Sinclair to decide other legal questions. In Hunter v. Dematic USA, 2016 U.S. Dist. LEXIS 77807 (D.N.J. June 15, 2016), the District Court addressed whether the plaintiffs had standing to assert a PLA claim. In Hunter, a warehouse worker was killed when he became caught in conveyor belt. The plaintiffs, the decedent’s heirs, brought individual claims for, inter alia, strict products liability under the PLA against the manufacturer of the conveyor belt system based on allegations that they suffered “extreme mental anguish” and “emotional harm” resulting from the decedent’s death. Relying on Sinclair, which confirmed that the PLA requires proof of a “personal physical injury,” the court held the individual plaintiffs did not have standing to assert PLA claims because they had not suffered personal physical injury; rather, the administrator of the estate was the only party in interest who could assert a PLA claim for personal physical injury to the decedent himself.

As the above cases demonstrate, it is axiomatic that the PLA and Sinclair limit the permissible claims in a product liability case, but moving to dismiss duplicative counts based on PLA subsumption can also position a case for dismissal through motion practice on other grounds. In Chester v. Boston Sci. Corp., 2017 U.S. Dist. LEXIS 26676 (D.N.J. Feb. 27, 2017), the plaintiff lodged claims for strict liability failure to warn, common law and consumer fraud, “deceit,” and fraudulent concealment based on an alleged defect in her late husband’s defibrillator device. After applying Sinclair to significantly narrow the available claims to a sole claim for failure to adequately warn under the PLA, the court determined that the plaintiff’s remaining claim must also be dismissed because it was preempted by federal law governing FDA approval and labeling of medical devices. Chester contains an interesting discussion of federal preemption, but the vital takeaway for purposes of this article is the importance of moving to limit the claims pled consistent with Sinclair, as doing so may enable further dispositive motion practice.

Looking to the Future

Whether the issue involves the scope of the PLA, the breadth of PLA subsumption, or other legal issues, the impact that Sinclair has had on products liability law throughout the past 10 years is evident. Indeed, Sinclair has new and increased significance due to the United States Supreme Court’s recent personal jurisdiction cases, which will likely affect products liability litigation within our state. In Daimler AG v. Bauman, 134 S. Ct. 746 (2014), the Supreme Court rejected an expansive interpretation of general personal jurisdiction, which had allowed any defendant conducting “continuous and substantial” business in a state to be sued in that state by anyone. Bauman held that only corporate defendants “at home” in a jurisdiction, i.e., where they are incorporated or have a principal place of business, can be sued there. Earlier this year, in Bristol-Myers Squibb Co. v. Superior Court, No. 16-466, 582 U.S. ___ (June 19, 2017), the Supreme Court rejected a similarly expansive interpretation of specific personal jurisdiction, confirming that specific jurisdiction applies only where the suit itself arises out of or relates to the defendant’s contacts with the forum.

In light of these decisions, plaintiffs may choose to file products liability lawsuits in New Jersey against New Jersey product manufacturers in increasing numbers. To ensure the continued effect of Sinclair, practitioners defending these lawsuits in New Jersey’s federal and state courts should continue to argue for PLA subsumption where the essence of the claim sounds in products liability, and New Jersey courts should continue to apply the letter and intent of the PLA, as articulated in Sinclair and its progeny, to avoid duplicative claims against New Jersey product manufacturers.

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Reprinted with permission from the December 11, 2017 issue of the New Jersey Law Journal. © 2017 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved. For information, contact 877-257-3382 or reprints@alm.com or visit www.almreprints.com.