In Sun Chemical Corp. v. Fike Corp., a case on certification from the U.S. Court of Appeals for the Third Circuit, the New Jersey Supreme Court on July 29, 2020, clarified the interrelationship between New Jersey’s Consumer Fraud Act and Product Liability Act.  The court, per Justice Lee Solomon, noted the different purposes of the two acts, and stated definitively that where damages other than those for “harm” under the PLA, were sought, that act was no bar to seeking CFA relief.

In 2008, the court in Sinclair v. Merck & Co., reached the opposite conclusion. Finding that the PLA barred medical monitoring claims, the court stated: “The language of the PLA represents a clear legislative intent that, despite the broad reach we give to the CFA, the PLA is paramount when the underlying claim is one for harm [defined in the PLA as personal injury or property damage, with certain exceptions], caused by a product. The heart of plaintiffs’ case is the potential for harm caused by Merck’s drug. It is obviously a product liability claim.”  This conclusion was within the purview of the court, and although one might view medical monitoring as an economic loss until an actual physical injury were discovered, the court’s finding is definitive.

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