On this date in 2008, the Supreme Court issued its opinion in Sinclair v. Merck & Co., Inc., 195 N.J. 51 (2008). In that case, a majority of the Court, speaking through Justice Wallace, held that “the definition of harm under our Products Liability Act (PLA), N.J.S.A. 2A:58C-1 to -11, does not include the remedy of medical monitoring when no manifest injury is alleged.” The Court reversed the decision of the Appellate Division in this regard. The Supreme Court also ruled that plaintiffs could not rely on the Consumer Fraud Act, N.J.S.A. 56:8-1 et seq. (“CFA”), as a means of asserting a medical monitoring claim when the PLA forbids it. The Appellate Division had not reached that issue.
The issue reached the Supreme Court due to what the Appellate Division called “the relative paucity of New Jersey precedent” in the area of medical monitoring. That precedent consisted of three cases, Ayers v. Jackson Tp., 106 N.J. 557 (1987); Mauro v. Raymark Indus., Inc., 116 N.J. 126 (1989); and Theer v. Philip Carey Co., 133 N.J. 610 (1993). The Appellate Division and the Supreme Court each reviewed those cases, but the two courts reached different results.
The Supreme Court, however, because it is final, had the controlling word. The majority there (Justice Long dissented) focused on the portion of the PLA definition of “harm” that includes “personal physical illness, injury or death.” The majority determined that “physical” modified not only “illness,” but also “injury,” so that absent a physical injury, there could be no claim for medical monitoring.
Though some courts in other jurisdictions had “suggested that a physical injury would be required” in order to sustain a medical monitoring claim under the statutes of those jurisdictions, the majority was most persuaded by New Jersey’s own history. Prior to the PLA, New Jersey law followed the Restatement (Second) of Torts, “in which strict liability in tort for defective products spoke only in terms of physical harm.” Nothing in the PLA or its legislative history showed any intent to change that, and the Court’s decision in In re Lead Paint Litig., 191 N.J. 405 (2007), supported the view that physical injury was necessary.
On the CFA issue, the Court wrote on a clean slate. Again, however, the majority found its answer in Lead Paint. There, the majority of the Court had stated that “[t]he language chosen by the Legislature in adopting the PLA is both expansive and inclusive, encompassing virtually all possible causes of action in relating to harms caused by consumer and other products.” The majority in Sinclair said that “despite the broad reach we give to the CFA, the PLA is paramount when the underlying claim is one for harm caused by a product.”