For years, New Jersey courts have applied an equitable doctrine known as the discovery rule to toll the accrual date of a plaintiff’s cause of action for a products liability claim until that plaintiff discovers, or should have discovered, the basis for a potential claim. The Supreme Court’s recent decision in Cornett v. Johnson & Johnson, 211 N.J. 362 (2012), seemingly narrows the scope of the discovery rule by finding that the determinations of a Food and Drug Administration (FDA) advisory committee, regarding a particular product, are sufficient to put a plaintiff on notice of the existence of a possible claim.

Although the Cornett court ultimately applied Kentucky law in determining that the plaintiff’s claim was time-barred, it expressly found no conflict between the Kentucky and New Jersey discovery rules. As such, it appears that a finding by an FDA advisory committee will now trigger the running of the applicable statute of limitations in New Jersey — irrespective of whether a particular plaintiff had any knowledge of the committee’s existence or findings. This newly placed emphasis on advisory committee findings as a trigger for the statute of limitations should prove to be a valuable weapon in the arsenal of manufacturers of FDA-approved drugs and devices in moving to dismiss claims as time-barred.

Historical Underpinnings of the Discovery Rule

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