Novartis Pharmaceuticals secured dismissal of punitive damages demands in the Middle District of Florida, joining the vast majority of other courts in the Aredia/Zometa litigation in holding that New Jersey law governs the question of punitive damages and finding that New Jersey’s statutory exception for a claim based on fraud-on-the-FDA is preempted. Kirchman v. Novartis Pharm. Corp., No. 8:06-cv-1787-T-24-TBM (M.D. Fla. June 16, 2014).

The case was filed by Florida resident Margaret Krichman on behalf of her husband Donald Kirchman in the Middle District of Florida, and so Florida choice-of-law rules applied.  Florida applies the “significant relationship” test set forth in the Restatement (second) of Conflict of Laws (1971) to determine which law applies to a particular issue.  Novartis argued that under this test not every issue within a case will necessarily be governed by the same law and that in this case, Florida law governs liability and compensatory damages but New Jersey law governs punitive damages because while Mr. Kirchman’s alleged injury occurred in Florida, the alleged conduct giving rise to punitive damages occurred in New Jersey where Novartis is headquartered.  The court agreed with Novartis, explicitly rejecting minority opinions in the Aredia/Zometa litigation finding that the place of injury with respect to punitive damages is the place “where the injured party was prescribed and ingested the drug.”  Kirchman Order at 6.  The court found “that—with respect to punitive damages—the place of the injury-causing conduct, New Jersey, is more important than the place of injury.”  Id. at 8.

The court went on to apply New Jersey law to preclude punitive damages, relying on the reasoning in previous Aredia/Zometa cases finding that New Jersey’s statutory exception requirement is equivalent to a fraud-on-the-FDA state claim and thus preempted.  Kirchman Order at 9.