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Mass Tort Update
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS SUPERIOR COURT OF NEW JERSEY COUNTIES OF ATLANTIC AND CAPE MAY CAROL E. mGBEE. J.S.C. CASE: DOCKET#: RETURNDATE: MOTION: ATTORNEYS: 1201 Bacharach Boulevard Atlantic City, NJ 08401-4527 (609) 343-2190 MEMORANDUM OF DECISION ON MOTION Pursuant to Rule
1:6-2(0& Co., Inc.R. Buchanan
Having carefully reviewed the papers submitted and any response filed, I have ruled on the above Motion as follows: Plaintiff Intemational Union ofOperating Engineers Local No. ("Plaintiff', 'the Fund" or "Local brings this motion for class certification. Plaintiff seeks to certify a nationwide class of thirdparty non-government payors who have paid any person or entity for the purchase of the prescription anti-inflammatory arthritis and acute pain medication Refocoxib that was manufactured and marketed by Defendant Merck under the brand-name VIOXX®. Merck opposes this motion. (J) .. BACKGROUND VIOXX® belongs to a class ofpain relievers called non-steroidal anti-inflammatory drugs ("NSAIDs'). Other NSAIDs include prescription medications such as oxaprozin (Daypro®) and diclofenac (Volaren®) as well as over-the-counter pain medications such as ibuprofen (Advi1® or Motrin®), acetaminophen (Tylenol®) and naproxen (Alleve®). NSAIDs are supposed to relieve pain and inflammation by inhibiting the body's production ofan enzyme called prostaglandin G/H synthase. There are two forms of ("COX-l') and cyclooxygenase-2 ("COX-2',). Traditional NSAIDs, such as naproxen block both COX-l and COX-2 enzymes. These traditional NSAIDs have been associated with adverse gastrointestinal side effects. Such side effects are believed to include injuries and deaths from gastrointestinal perforations, ulcers and bleeds ("PUBs') that occur in significant numbers every year Merck began developing VIOXX® in the early 1990s to address the adverse gastrointestinal side effects of traditional NSAIDs. Merck proceeded on the theory that COX-l protects the lining of the stomach, whereas COX-2 facilitates inflammation. VIOXX® and other NSAIDs such as Celebrex®, known as COX-2 inhibitors have been developed to block only COX-2 in order to reduce pain and inflammation without having the gastrointestinal PUBs associated with traditional NSAIDs. On for VIOXX® analyses from approximately two years worth ofpre-clinical testing. The IND was demonstrate that Merck could safely test VIOXX® in healthy human patients. The FDA granted 2 approval to allow Merck to proceed with clinical studies. Consequently, Merck conducted 55 studies over the next four years comparing VIOXX® to other NSAIDs and placebo. In October 1997, Merck sponsored one ofthese studies lead by Dr. Garrett FitzGerald, of the University ofPennsylvania, known as Protocol 023 a.k.a. the FitzGerald Study. During this study, Dr. FitzGerald observed that patients taking VIOXX® had significantly lower levels of prostacyclin metabolites in their urine than patients taking placebo. Scientists believe that prostacyclin in the bloodstream inhibits platelet aggregation - i.e. blood clotting. Dr. FitzGerald hypothesized that ifVIOXX®, as a COX-2 inhibitor was causing reduced prostacyclin levels in blood vessels, as well as urine, then it was possible that COX-2 inhibitors might result in increased blood clots and associated cardiovascular events. Plaintiff contends that the Merck Board ofScientific Advisors, an independent group of scientists, in response to the FitzGerald hypothesis, recommended that Merck implement a procedure in all future VIOXX® studies that would enable the company to develop data on a pooled basis Local 68 also contends that Merck never engaged in the studies recommended by the FDA to properly evaluate the efficacy ofVIOXX®. Local 68 claims that Merck cancelled a study that would compare the safety ofVIOXX® to Tylenol because such a study would highlight the benefits of Tylenol. Plaintiff further contends that Merck simply avoided conducting other Outcomes studies to determine ifVIOXX® had improved gastrointestinal ("GI") benefits because of the fear ofdemonstrating the possibility of increased cardiovascular ("CV') events. 3 Local 68 maintains it can prove by using internal documents from Merck that Merck scientists knew that the use ofVIOXX® caused pro-thrombotic effects and that taking VIOXX® would increase the risk ofheart attack and strokes. The plaintiff has presented to the court documents they maintain will prove that Merck intentionally misrepresented the problem with VIOXX® and misrepresented its safety and efficacy from 1997 to when they took it offthe market. Local 68 further contends it can prove at trial that Merck intimidated and attempted to silence scientists who were concerned about the cardiovascular risks ofVIOXX®. The plaintiffs have provided the court with internal e-mails from 1997 and 1998 which they allege demonstrate an attempt by Merck employees to manipulate studies and conceal safety information on VIOXX®. The court has been supplied evidence that creates a factual issue as to whether Merck attempted to intimidate and silence scientists and doctors who questioned the safety ofVIOXX®. Merck claims they did not make intentional omissions or affIrmative misrepresentations and that They claim they conducted all appropriate studies and that all scientific issues as to safety of VIOXX® were revealed to the scientific community. Merck claims the statements relied upon by plaintiffs are taken out ofcontext out ofmillions of documents produced. The court cannot and should not make a determination as to the merits ofplaintiffs' claims here but the court is very familiar In ("VIGOR') trial to determine whether VIOXX® reduced the risk ofPUBs relative to naproxen. The VIGOR trial had approximately 8,100 patients and the "unblended" results ofthe study were released trial. The results showed that there were fewer adverse GI events 4 VIOXX® as opposed from gastrointestinal events. There were fewer CV thrombotic events in patients taking naproxen than in patients taking VIOXX®. The results, according to Local 68, also showed that patients taking VIOXX® suffered more than twice as many serious CV events and five times as many heart attacks than patients taking the drug naproxen. Merckts position is that because VIGOR did not compare VIOXX® against a placebo, the results could not explain whether the increased CV events were associated with prothrombotic effects ofVIOXX®, or a cardio-protective effect associated with naproxen, or just chance. Merck claims that after receiving the VIGOR results, it expedited studies where VIOXX® was being compared to placebo Alzheimer's disease. Merck also contends that the analysis ofthese studies indicated that there was no statistically significant difference in the CV rate between patients receiving VIOXX® and those receiving placebo. In Officer, Raymond V. Gilmartin. The letter stated Merck's promotional activities in relation to VIOXX® were "false, lacking in fair balance, or otherwise misleading." The letter suggests that Merckts promotional activities for VIOXX® minimized the potentially serious adverse findings ofthe drug, made unfounded claims ofthe drug's superiority compared to other NSAIDs, and promoted VIOXX® for unapproved uses and in unapproved doses. approved revised labeling for VIOXX® incorporating the VIGOR results and indicating the number and breakdown ofserious CV thrombotic events in the groups ofthe VIGOR study. The meaning ofthe VIGOR results are disputed by the parties. Plaintiffpoints to various documents they state are evidence that the results were purposely misstated by Merck. Merck denies this 5 • and claims the statements that the plaintiff relies on are taken out ofcontext and all studies were properly done and all results disclosed. After learning ofthe VIGOR results, Merck began to design a large study of VIOXX®. In prostate cancer. One of these trials was a three-year study to detennine ifVIOXX® could prevent recurrent colon polyps and was known as APPROVe. The preliminary results of APPROVe showed an increased rate of adverse CV events in study participants taking 25mg VIOXX® as compared to patients receiving a placebo. Safety Monitoring Board for APPROVe delivered preliminary results and recommended that Merck stop the study because ofthe number ofadverse cardiovascular events. 2004, Merck voluntarily withdrew VIOXX® from the worldwide market. Prior to been widely. prescribed and generated billions ofdollars in revenue each year for Merck. Plaintiff argues the success ofVIOXX® depended upon false representations concerning the drug to third party payors. Local 68 is a joint union-employer Taft-Hartley trust fund, organized and operating in New Jersey. Local 68 provides health care benefits to its members, including a prescription drug plan. Horizon Blue Cross/Blue Shield ofNew Jersey ("BCBS-NJ") administered the healthcare benefits plan for Local 68, including their prescription plan. Companies known as prescription benefit managers ("PBMs") often manage the prescription drug benefit programs healthcare plans under contracts with managed care organizations and healthcare plan administrators. A PBM, either Pain Prescriptions, Inc. or Advance 6 - prescription benefit program under contract with BCBS-NJ during the time period relevant to this matter. Additionally, third-party payors often have Pharmacy and Therapeutics Committees ("P&T Committees'), made up ofindependent healthcare professionals, that advise healthcare plans on which prescription drugs should be provided to plan participants and recommending the conditions that must be met before a prescription will be filled. P&T Committees generally consist ofpracticing physicians, pharmacists, and other health care professionals. Virtually every healthcare plan that provides prescription drug benefits by today's industry standards has a drug "formulary," i.e. a list ofprescription and non-prescription drugs that the plan's prescription drug benefit will provide coverage for. Healthcare plans generally engage P&T Committees to make recommendations or decisions about which drugs to include on their formularies. P&T Committee members assess the clinical efficacy and safety ofnew drugs, on an on-going basis, from many different sources of information in rendering a decision to include or to recommend inclusion ofa drug onto a formulary. Such information includes clinical data provided to the FDA by the drug's manufacturer, peer-reviewed medical literature, media publications, leading physicians and scientists' statements, alternative treatments and economic issues. The result of the P&T Committee's findings usually determine the level ofpreferential treatment a drug will get on the formulary. The level ofpreference a drug is assigned corresponds with the amount a plan participant must contribute as a co-payment to receive that drug. Each P&T Committee is different and as a result, different healthcare plans may provide varying amounts ofbenefit coverage for different drugs. The P&T Committee for BCBS-NJ, and thus for Local 68, determined that VlOXX® should be listed on its formulary as a preferred brand drug that required plan participants to contribute a mid-level co-payment. The status of 7 VIOXX® on the fonnularies ofother health plans and plan administrators will have varied based upon the types ofbenefits that each plan offered and on the recommendations made by each individual P&T Committee. However, as previously stated P that is distributed nationally, such as clinical data, medical literature, media publications and opinions ofleading physicians and scientists. Plaintiff alleges Merck engaged in a nationwide campaign to get VIOXX® on the third party payors' fonnularies. BCBS-NJ and its P&T Committee, as the plan administrator for Local 68, were responsible for making the decision as to VIOXX® being included in the fonnulary that its members were able to access for their prescriptions benefits. Here, the proposed class would consist oversee the authorization and processing ofmedical claims and prescription purchases sought by their members and pay for the prescription benefit portion of the drug's costs. The proposed class ofthird-party payors does include a variety ofentities such as insurance companies, health maintenance organizations ("HMOs"), large employers, managed care organizations ("MCOs") and Taft-Hartley groups. While BCBS-NJ acts as a plan administrator for Local 68 and other similar entities that provide medical benefits, it can also fimction as a third-party payor under the proposed class. In reversed a dismissal for failure to state a claim of a similar third party payors class action. In that case, Louisiana Health Service Indemnity d/b/a Blue CrossIBlue Shield ofLouisiana and Eastern States Health on claimed misrepresentations by the pharmaceutical company that manufactured and marketed Rezulin, a diabetes medication. The class action asserted a claim under New Jersey law because 8 the manufacturer was a New Jersey corporation. The Desiano Court viewed the motion under New Jersey law. The motion being the direct buyers and therefore having no standing. The Circuit Court described the claim as follows: The Plaintiffinsurers assert that, had they not been deceived by the Defendants' misrepresentations about the safety ofRezulin, they would have taken steps so as not to purchase Rezulin at the prices set by Warner-Lambert. Among the steps Plaintiffs might have taken were to exclude it altogether from their approved schedules, set a low scheduled value, set a dissuade doctors from prescribing it. Taking account ofthese allegations, the harm to the insurers was not indirectly caused as a result of the Defendants' misleading ofothers; the insurers were directly harmed by the deception practiced on them. Id. at 349 n.9. In reversing the dismissal by the U.S. District Court the 2nd Circuit held "[T]his and other courts have long recognized the right ofHBPs to recover from drug companies amounts that were overpaid due to illegal or deceptive marketing practices." Id. at 350. Plaintiff filed a complaint in this matter alleging that as a result ofMerck's marketing, advertising, promotion, and sale ofVIOXX®, third-party payors paid approximately 800% more than they should and/or would have for the prescription drug. Plaintiffalleges that Merck knew ofthe harmful effects ofVIOXX® years prior to its withdrawal from the market and that it suppressed this information and continued to aggressively market the drug without properly disclosing the information to the FDA and to the public. Plaintiff alleges that at the time VIOXX® was being developed, the patents on some ofMerck's most successful drugs were about to expire and the company needed a successful "blockbuster" drug to offset the loss of these revenue sources. Plaintiff alleges that the need to develop a blockbuster drug was compounded by the competition ofPfizer, another drug company, that was developing Celebrex and scheduled to have 9 ------------- consisted oftwo counts, claiming common law fraudulent misrepresentation and/or suppression as well as violations ofthe New Jersey Consumer Fraud Act ("CFA") (N.J.S.A. seq.). common law fraud claim. Plaintiff's complaint alleges that most purchases ofprescription drugs in this country are paid for by third-party payors. According a given third-party payor's formulary, that third-party payor will not contribute any money to the purchase ofthe drug and the cost would be borne entirely by the member. When this happens, the member usually chooses a substitute drug ofthe same class that is on the formulary and paid for by the third-party payor. It purchased through third-party payors, it is very important for a drug manufacturer to have their product listed on the formularies of as many third-party payors as possible. The Plaintiff alleges that Merck provided false and misleading information regarding the safety and benefits of VIOXX® to third-party payors and to the public through direct-to-consumer advertising in order to have VIOXX® listed on their formularies. As a result ofthese actions, PlaintitT alleges that Merck was able to gain significant market share compared to other drugs of the same class made by Merck's competitors. More specifically, according to Plaintiff's complaint, a 30-day supply ofVIOXX® sold for approximately $72.00 while traditional NSAIDs sold at $9.00 or less for the same quantity. PlaintitTcontends that as a result of Merck's fraudulent and unconscionable commercial practices for marketing and selling VIOXX®, it was able to induce third-party payors into including the drug on their formularies at a favorable tier thus paying much more than they 10 otherwise would have for other NSAIDs that were available. Plaintiff asserts that if it and other third party payors knew ofthe negative infonnation concerning the safety, efficacy, and benefits ofVIOXX®, they would not have agreed to provide coverage for the drug, or at least not on the terms that were approved. Plaintiff claims that because Merck misrepresented and concealed infonnation about VIOXX®, third-party payors paid vast amounts of money over what they should have and otherwise would have, had accurate infonnation about the drug been disclosed. Plaintiffhas brought the present motion seeking a certification for the class described as follows: All third-party payors person or entity for the purchase ofthe prescription drug VIOXX® (rofecoxib) since May 1, 1999. Third-party payors include any non-governmental entity that is (i) a party to a contract, issuer of a policy, or sponsor of a plan, which contract, policy, or plan provides prescription drug coverage to natural persons, and is also (ii) at risk, pursuant to such contract, policy, or plan, to purchase or pay for all or part of the cost ofprescription drugs dispensed to natural persons covered by such contract, policy or plan. Excluded from the Class are (1) employees ofdefendant, including its officers or directors; (2) Plaintiffs counsel; and (3) the Judge of the Court to which this case is assigned. (plaintiffComplaint Plaintiff argues that this proposed class satisfies the requirements ofR. 4:32-I(a) and 1(b)(3)1. personal injury claims. Merck opposes this motion arguing that a multi-state class action is inappropriate; that the case would be unmanageable as a class action due to predominating individual issues; and that Local 68 is not an adequate class representative. Merck asserts that a class action would be inappropriate because New Jersey's choice oflaw rules would require that the consumer fraud 1 Plaintiff is not seeking certification for for negligence or products liability. 11 • law ofthe home state of each putative class member would unmanageable. Supreme Court or Appellate Division level decision as to whether New Jersey Consumer Fraud Act can be applied to a class action involving out ofstate plaintiffs and a New Jersey defendant. Defendant claims that individual issues such as demonstrating an ascertainable economic loss from Merck omissions caused a putative class member's loss would predominate this litigation and make a class action unmanageable. representative because its claims and defenses are not typical ofthe other proposed class members and because potential conflicts of interest as well as a lack of decision-making control make Local 68 an inadequate representative for the proposed class. ANALYSIS As a preliminary issue, it should be noted that the Complaint in this matter was filed on October 30,2003, prior to the passage ofthe Class Action Fairness Act of2005. The proyisions ofthe Class Action Fairness Act apply only to civil actions commenced on or after the date the Act was enacted, February 18, 2005. Pub.L. apply to the matter at hand and this court has the authority to certify a nationwide class provided that procedural due process is complied with, under Phillips Petroleum v. Shutts, 472 U.S. 797,811-812 (1985). The Class Action Fairness Act of 2005 has the effect of allowing removal of nationwide class actions filed in State court for cases filed after February 18, 2005. See 28 U.S.C.A. § 1332. However, Congress specifically narrowed the Class Action Fairness Act to exclude lawsuits that were pending at the time the legislation was enacted regardless ofwhether class certification had been granted yet. 12 Pritchett v. Office DtIDot. mc., 404 F.3d 1232, 1236 (lOth Cir. 2005) (finding that for purposes ofthe Class Action Fairness Act, an action is considered commenced at the time it is filed in the state court). Thus, as this matter was filed prior to the Class Action Fairness Act being enacted, this vroxx® related class action against Merck is unaffected by it. See rd. (citing the statement ofa Congressional Representative that the Class Action Fairness Act would not effect the numerous class actions pending against Merck due to its withdrawal ofVIOXX®). Class Actions In General R. 4:32-1 governs the requirements for maintaining a class action under New Jersey law. Part (a) of the Rule provides for certain prerequisites that a proposed class must demonstrate ifit is even to be considered for class status. It provides:(l) the(B)
adjudications with respect to individual members ofthe class which would as a practical matter be dispositive ofthe interests ofthe other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or 13 ---------------~ (3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual and that a class action is superior to other available methods for the fair and efficient adjudication ofthe controversy. The factors pertinent to the findings include: first, the interest ofmembers ofthe class in individually controlling the prosecution or defense of separate actions; second, the extent and nature of any litigation concerning the controversy already commenced by or against members ofthe class; third, the difficulties likely to be encountered in the management of a class action. "[T]he class action rule should be construed liberally in a case involving allegations of consumer purchasers of automobiles with certain defects). A New Jersey court should consider equitable principles that would allow class actions where consumers with a common injury are seeking redress that would be uneconomical to pursue individually. Varacallo v. Massachusetts Mutual Life Insurance. Co., 332 N.J. Super. 31,45 (App. Div. 2000). However, certification ofa class action may only be done after a court has undergone a "rigorous analysis" and determined that the requirements ofR. 4:23-1 have been satisfied. Carroll v. Cellco Partnership, 313 N.J. Super. 488,495 CAppo Div. 1998) (quoting General Telephone Co. v. Falcon, 457 U.S. 147, 161 (1982». The burden of establishing that class status is appropriate is on the plaintiff. Id. at 494. A motion for class certification must be determined upon the criteria for maintaining a class action and not upon the plaintiffs chances ofprevailing on the merits. Delgozzo v. Kenny, 266 N.J. Super. 169, 180-181 (App. Div. 1993). 'The court is bound to take the substantive allegations ofthe complaint as true, thus necessarily making the class order speculative in the sense that the plaintiffmay be altogether unable to prove his allegations." Id. (quoting Blackie v. Barrack. 524 F.2d 891, 901 n. 17 (9 even the identification ofthe issues to determine the suitability ofan action for certification 14 • requires some preliminary analysis." analysis ofmatters outside the pleadings is necessary because in order to make a proper decision regarding class certification, "a court must understand the claims, defenses, relevant facts, and applicable substantive law..." Carroll, American Tobacco Co., 84 F.3d 734,744 (5 A general summary ofthe claims, defenses and relevant facts has been provided thus far. A briefdiscussion ofthe substantive law underlying Plaintiffs complaint is appropriate prior to determining the outcome ofthis motion. The New Jersey Consumer Fraud Act The Plaintiffs complaint alleges that Merck violated the New Jersey CFA. One provision of the CFA, N.J.S.A. 56:8-2, pertains to the unlawful use offraud in connection with the sale or advertisement ofmerchandise. The statute provides in relevant part: The act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission ofany material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement ofany merchandise or real estate, or with the subsequent performance ofsuch person as aforesaid, whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice... This provision can be violated by an affirmative act, omission, or violation of an administrative regulation. Gennari v. Weichert Co. Realtors, 148 N.J. 582,605 (1997). "While the element of traditional reliance required in a fraud case need not be proven in order to recover damages under the CFA, a private plaintiffmust still 'prove a causal nexus between the alleged [misrepresentation]' and his or her damages." Dabush v. Mercedes Benz USA, LLC, 378 N.J. Super. 105, (App. Div. 2005) (internal citations omitted). 15 • Consumer fraud violations can be divided, broadly, into three categories: affinnative acts, knowing omissions and regulatory violations. Cox v. Sears Roebuck demonstrates that a defendant committed a consumer fraud that is an affinnative act, ttintent is not an essential element." alleged consumer fraud is the result of a defendant's omission, "plaintiff must show that the defendant acted with knowledge, and intent is an essential element ofthe fraud." rd. at 18. "intent is not an element ofthe unlawful practice, and the regulations impose strict liability for such violations." Ibid. Feinberg v. Red Bank Volvo, Inc., 331 N.J. Super. 506,510 (App. Div. 2000). Additionally, N.J.S.A. 56:8-19 ofthe CFA details the relief available to claimants. The statute provides: Any person who suffers any ascertainable loss of moneys or property, real or personal, as a result ofthe use or employment by another person of any method, act, or practice declared unlawful under this act or the act hereby amended and supplemented may bring an action or assert a counterclaim therefore in any court ofcompetent jurisdiction. In any action under this section the court shall, in addition to any other appropriate legal or equitable relief, award threefold the damages sustained by any person actions under this section, including those brought by the Attorney General, the court shall also award reasonable attorneys' fees, filing fees and reasonable costs of suit. "Thus, to state a claim under the CFA, a plaintiff must allege each ofthree elements: (1) unlawful conduct by the defendants; (2) an ascertainable loss on the part ofthe plaintiff; and (3) a causal relationship between the defendants' unlawful conduct and the plaintiffs ascertainable loss." New Jersey Citizen Action v. Schering-Plough Corp. 367 N.J. Super. 8, 12-13 (App. Div.), certif. denied 178 N.J. 249 (2003). A cause ofaction under the CFA differs from a claim ofcommon law fraud, "in that common law fraud requires proof ofreliance while consumer fraud requires only proof ofa causal nexus between the concealment ofthe material fact and the loss." Varacallo, N.J. Super. at 43. 16 • In information with the intent that third party payors' decision on formulary placement would be affected and prove there was a causal relationship between the formulary decisions and the misrepresentations. It is not necessary to prove that the third party payors decisions were basedIn the case of Kaufman v.A. Here, plaintiffs allege they
• part ofthe decision making process in the formulary decisions made by third party payors. The fact that the price was so much higher than other older medications on the market goes to the damages claimed, not to proof of causal link. The complaint alleges that Merck provided false and misleading information to the decision makers used by third-party payors in a deliberate attempt to get fraudulent information decisions were made that resulted of such claims, they are distinct from the fraud on the market/price inflation theory. FINDINGS A. Before determining if the class action is maintainable, the court must determine that the proposed class meets all of the prerequisites ofR. 4:32-1(a). 1. In that joinder of all members is impracticable. R. 4:32-I(a)(I). There is no predetermined number to the exact size of the proposed class Corp., 365 N.J. Super. 520, 557 (Law Div. 2003); see also Delgozzo, supra, 266 N.J. Super at 184-185. In may qualify as class members and such as Plaintiff, are fairly common in New Jersey and throughout the United States. While Plaintiffhas not provided figures relating can be presumed at this point that such a class would ... be sufficiently numerous to meet this 18 • criterion." Delgozzo, supra, 266 N.J. Super. at 184-185. Numerosity in this matter can be inferred primarily because ofthe prevalence of third-party payors in providing prescription benefits and also because of the overall success ofVIOXX® while it was on the market. Indeed, Merck's 2. Commonality The second prerequisite for certification is that "there are questions oflaw or fact common to the class." class, and indeed a single common question may be sufficient to satisfy this requirement. Fink, supra, 365 N.J. Super. at 558, citing Delgozzo, supra, 266 N.J. Super. at 185. "The existence of questions concerning individual representations made to a plaintiff, or relating to proof of damages, should not be a bar to upholding a class action where there are significant common questions as to liability." Delgozzo, supra, 266 N.J. Super. at 185. Here, there are clearly questions of fact and law common to all members ofthe proposed class. The complaint in this matter alleges fraudulent misrepresentation and violations of the CF the outcome of the case does hinge on the conduct of Merck in making representations about its drug. This issue will be relevant to all third-party payors that could potentially be members of this class. Local 68 has provided the court with a list of questions that they assert would be common to all members ofthe proposed class. The list includes: • Whether Merck concealed or suppressed material information regarding the safety and efficacy ofVIOXX®; • Whether Merck misrepresented the safety and efficacy ofVIOXX®; 19 • Whether Merck engaged in deceptive or misleading promotional campaigns designed to induce class members to add VIOXX® to their formularies, or to authorize the purchase ofVIOXX® by their plan participants; • Whether Merck violated the CFA; and • Whether, as a result ofMerck's misrepresentations and failure to disclose material information regarding the safety and efficacy ofVIOXX®, class members were damaged. The court finds that these questions global corporation. Many ofthe alleged wrongdoings Plaintiff alleges Merck to have committed are claimed to have been done high within the corporate structure in order to have a uniform message regarding the efficacy and safety ofVIOXX® distributed throughout the marketplace. In CFA, they would have to establish the same activities as other plaintiffs alleging fraud related to VIOXX®. There are ofcourse, individual issues that will pertain to each class member. While these issues may indeed be significant, there has been a sufficient showing ofcommon issues ofIaw and fact to satisfy the commonality prerequisite ofR. 4:32-1 (a)(2).2 3. Typicality The third prerequisite for class certification is that "the claims or defenses of the representative parties are typical ofthe claims or defenses ofthe class." R.4:32-1(a)(3). According to the New Jersey Supreme Court, this means that "[t]he claims ofthe representatives must 'have the essential characteristics common to the claims ofthe class.'" 2 20 • supra, 93 N.J. at 425 (quoting 3B Moore's Federal Practice, para. 23.06-2 (1982». "A plaintiffs claim is typical ofthe claims of the class if it arises from the same event or course ofconduct which has given rise to the claims ofthe other class members." Gross v. Johnson Consumer Pharmaceuticals Co., 303 N.J. Super. 336, 342 (Law Div. 1997). Merck argues that certification cannot be granted because Local 68 is not an adequate class representative. Merck claims that Plaintiffcannot represent the proposed class because: (1) the Plaintiff is not typical ofmost-third party payors because plaintiffhad no role in deciding whether its plan would or would not cover VIOXX®; (2) because ofreason #1, Plaintiff cannot prove that Merck's alleged misrepresentations caused it to incur any obligation to pay for VIOXX®; and (3) Local 68 may have a claim against BCBS-NJ, also a putative class member, as the healthcare plan administrator that Local 68 retained to manage its healthcare plan. Merck argues that Local 68 is atypical ofthe proposed class members because it retained BCBS-NJ to manage its healthcare plan and because it was BCBS-NJ that received all the information regarding VIOXX® and made the ultimate decision to list the drug on its formulary. Local 68 contends that whose role in deciding whether VIOXX® would be covered under their prescription plan is irrelevant because the third-party payor ultimately bore the responsibility of paying for the drug. Plaintiff's complaint alleges that the members of the proposed class were damaged when they paid more money than they otherwise would have for VIOXX® because of fraud perpetuated by Merck. The court finds that whether the representations were made to an employee of Local 68 or to an agent or administrator that it retained does not appear to affect the end result that Plaintiffdid ultimately pay for its members to receive VIOXX®. New Jersey law has established that a principal is deemed to have the knowledge or notice provided to an agent 21 • while the agent is acting within the scope of his or her duties. Benjamin v. Corcoran, 268 N.J. Super. 517,529 (App. Div. 1993). Additionally, there is no indication that Local 68 is less typical than other proposed class members merely because it retained an agent to manage its healthcare program. Merck's own witness, Dr. Kolassa, has testified that it is common for companies like BCBS-NJ to administer the healthcare plans for third-party payors. In Kaufinan v. I-Stat Corp., New Jersey already allows proof of indirect reliance to satisfy this element. 349,735 A.2d 606. Indirect reliance has also been adopted by the (Second of Torts representation initially made to party A who the maker knew or had reason to expect would communicate the information to party B such that the information would influence party B's conduct in a transaction. (Second) ofTorts 165 N.J. at 101. Thus, if the third party payors can prove fraudulent misrepresentation and/or omissions caused them to act, then it doesn't matter if the misrepresentations were made to intermediaries or administrators ofthe plan. A causal relationship is what is required. Merck also argues that Local 68 is not a typical class member because Merck's disclosures about VIOXX® changed over time as new information developed. Defendant consequently asserts, that for this reason there is claims of the proposed class. The court finds that while the disclosures may have changed over time, the plaintiffs claim is that the omissions and misrepresentations about VIOXX:® remained essentially the same for all third-party payors and continued until the drug was taken offthe market. Plaintiff's complaint sets forth allegations that Merck realized VIOXX® caused adverse side effects that were not properly disclosed to the FDA or the public years before the drug was pulled offthe market. Plaintiff contends that this realization occurred prior to VIOXX® gaining 22 • FDA approval and that despite its awareness ofthe potential hannful effects ofthe drug, Merck omitted or misrepresented infonnation in order to improve sales of the drug and increase its profits. The underlying theme ofPlaintifrs cause ofaction is that Merck, from at least the time ofthe FitzGerald hypothesis, to the time ofthe drug's withdrawal, misrepresented or omitted essential information about VIOXX®. The fact that some ofthe marlceting varied over the years that VIOXX® was on the market does not indicate that the alleged misrepresentations were inconsistent, nor does it indicate that Local 68 is an atypical class member. The court has reviewed documents the plaintiff relies upon and Merck's response but it is not necessary to discuss the proposed proofs here. There are clearly issues offact but Local 68 appears to be a typical member ofthe class as relied to place and keep VIOXX® on it formulary. With regards to typicality, Merck finally contends that it has a unique defense against the claims brought by Local 68 and the need to respond to this defense will affect it's ability to represent the proposed class. Merck asserts that it can rebut the existence of a causal nexus between Merck's conduct and Plaintiffs alleged loss because Plaintiff continued to pay for VIOXX® after it knew of Merck's alleged misrepresentations and omissions. Plaintiffs claim that once a drug is on a fonnulary and a number ofmembers ofa payor's organization have been receiving the drug, it is very difficult to remove a drug and this would be true for all third party payors. The court does not believe common to most third party payors. As the identities ofpurported class members are as yet wtknown, it is impossible to detennine whether Merck's rebuttal ofa causal nexus is actually a unique defense but it will probably apply to most, ifnot all, class members. Similarly, at this 23 ------------- point significant portion of Local 68's time and energy. See 181 F.R.D. 380, 385 (N.D. unique to the class representative became unduly burdensome for the representative, typicality would be destroyed). Merck has not provided sufficient evidence to refute the assertions made by Plaintiff that the typicality prong ofR. 4:32-1(a)(3) has been met. 4. Adequacy of Representation The fourth prerequisite for class certification is that "the representative parties will fairly and adequately protect the interests ofthe class." R.4:32-1(a)(4). requirement: conduct the proposed litigation, and (b) the plaintiffmust not have interests antagonistic to those ofthe class." Delgozzo, 104 F.R.D. 422, 430 (D.C.Pa 1984». "The defendant bears the burden of demonstrating that the proposed representation will be inadequate." Id. In 68 may have interests adverse to a potential class member, namely BCBS-NJ. Loca168 filed its complaint in this matter for VIOXX® asserts that the plaintiffhas a potential claim against BeBS as Local 68's administrator for retaining VIOXX® on its fonnulary. the simple answer to this is that plaintiffhas not asserted any claim against BCBS and does not intend to assert any claim against BCBS. Plaintiff alleges Merck made misrepresentation that resulted in BCBS and Local 68 and all other class members 24 . « • paying for an expensive product under the misconception it was safer than the products on the market. Merck also argues that Plaintiffcannot adequately represent putative class members because it had no control over whether it would purchase VIOXX® because it left such matters up to BCBS-NJ. This issue was similarly addressed The submissious of the parties in relation to this motion show that it is common for a third-party payor to hire an administrator such as BCBS-NJ to handle its healthcare program. Local 68 admittedly delegated the choice ofwhat drugs were listed on the formulary to BCBS-NJ. However, Local 68 was the payor in the relevant transactions and therefore constitutes an adequate class representative. Local 68 collected funds for its members, retained BCBS-NJ, and paid for the health care benefits provided to its members. The mere fact that BCBS-NJ, acting as an agent for Local 68, decided how to place the drug to be on the formulary of Local 68 does not destroy the causal link. With regards to the qualifications of counsel for Local 68, Merck has not contested their qualificatious and the court is satisfied that the attorneys are qualified and sufficiently experienced to conduct this litigation. knowledgeable about VIOXX®. Christopher Seeger is both liaison counsel in New Jersey where the largest number ofVIOXX® cases are filed, and also on the Plaintiffs Steering Committee in the MDL. He and his firm have lead the discovery process in VIOXX® litigation. They are well respected among the mass tort bar. The seven million documents already produced in the VIOXX® litigation are maintained in a depository at Seeger Weiss's offices. B. The Requirements 25 • The only one ofthe three alternative requirements necessary for class certification under R. class meets this requirement, the court must decide two issues: "(1) whether plaintiffs have met the burden ofproving that common questions oflaw and fact predominate over individual claims and (2) whether a class action is superior to other methods of adjudication." In re Cadillac, supra, 93 NJ. at 426. and law but not to the extent that would be required in a summaryjudgment motion or at trial. In consideration ofthree factors: (1) "the interest of members ofthe class in individually controlling the prosecution or defense of separate actions;" (2) "the extent and nature of any litigation concerning the controversy already commenced by or against members ofthe class;" and (3) 'the difficulties likely to be encountered in the management of a class action." Carroll, 1. The predominance requirement is more difficult to establish than the commonality prerequisite. See Amchem Prods.. Inc. v. Windsor, 521 U.S. 591,623-624 (1997). The plaintiff bears the burden of showing that 'the questions oflaw or fact common to the members of the class predominate over any questions affecting only individual members." R. 4:32-1 (b)(3); Fink, ~ to the class outweigh those that are not." Id. at 568. number that detennines whether a class will predominate over individuals. Id. "A conclusion on the issue ofpredominance requires an evaluation ofthe legal issues and the proof needed to establish them." In re Cadillac, Although plaintiffs elements, the critical question remains whether the benefit from the 26 • • detennination in a class action ofthe existence of a common defect and a common pattern of fraud outweighs the problems of individual actions involving such other issues as causation, reliance, and damages. Id. "If a common nucleus of operative facts is present, predominance may be found. From another perspective, the basic question is whether the potential class, including absent members seeks 'to remedy a common legal grievance.'" Id. at 431 (internal citations omitted). For certification ofa nationwide class, a predominance inquiry must include an analysis ofvariations in state law. Carroll, supra, 313 N.J. Super. at 496. This is because variations in state law and how the court would deal with such variations could overwhelm common issues and negate predominance. Id. A court must also consider 'whether any individual class member expressed an interest in controlling this litigation, or whether there was any pending litigation that might have already been commenced by or against the members ofthe class." Id. at 497. Carroll, the court was faced with whether to affirm a nationwide class. With regards to the issue of conflict of laws, the court stated: This court has determined that conflict of law issues do not per se foreclose certification ofa multistate class. Delgozzo v. Kenny, 266 N.J.Super. 169, 190, 628 A.2d ofthe different state laws and the effect on the predominance ofcommon legal issues is not necessary. A thorough analysis of state laws is particularly important in circumstances where... there is a possibility that common issues could be subsumed by substantive conflicts in state laws... Ofcourse, depending on variations in state laws, the members ofthe class in different states may be grouped into subclasses. See id. at 188, 628 may be differences in how each state defines common law fraud, negligent misrepresentation, or consumer fraud, thus making a trial judge's task of instructing a jury on relevant law impossible. Carroll, suprl!, 313 N.J. Super. at 497 (reversing and remanding class certification in part for a more thorough analysis of choice of law issues). For purposes ofthis motion a choice oflaw analysis is necessary. Should the laws of every state apply, a nationwide certification would be much less manageable. Additionally, the 27 court must detennine whether individual issues pertaining to proofs, causation, and damages outweigh issues common to all proposed class members. a. Choice ofLaw Because Plaintiff has brought this action in New Jersey, New Jersey's choice oflaw rules will govern this decision. See Gantes v. Kason Corp., 145 N.J. 478, 484 (1996). To decide a choice-of-Iaw issue, New Jersey Courts apply a flexible "governmental-interest" analysis that consists ofa two-pronged test to detennine which state has the greatest interest in having its law apply to the particular issue being litigated. Fu v. Fu, 160 N.J. 108, 118 (1999); see also, Erny v. Estate ofMerola, 171 N.J. 86, 94 (2002). Whether a conflict exists must be determined for each specific issue being litigated. Erny, In specific issue being litigated, a court must first decide 'that an actual conflict exists between the laws of' New Jersey and other states that have an interest in applying their laws to this litigation. Fu, supra, 160 N.J. at 118. As Plaintiff is seeking a nationwide class, there is a potential that a citizen ofevery state residents ofthese states, there are other contacts that this litigation Jersey that give those states an interest in applying their laws. VIOXX® was sold throughout the United States. The transactions between third-party payors and their members regarding VIOXX® occurred in multiple states. As there exists a potential for every state to have an interest in applying their law to this action, the laws ofevery state must be reviewed to determine which state laws present a conflict with the NJ CFA. As both parties correctly point out in their moving papers, and as a cursory review of other state laws involving consumer fraud indicates, there are sufficient variations between the 28 • • laws ofthe varying states and the CFA to constitute an actual conflict. The provisions ofthe various consumer fraud laws, the policies behind them, and case law interpretations all show variations between other states and New Jersey. See Fink, supra, 365 N.J. Super. at 570-584 (detailing various conflicts between the CFA and the consumer fraud statutes of other states). Both parties agree that the CFA conflicts in some ways with the consumer fraud laws ofthe other states. Thus, the first prong ofthe governmental-interest analysis has been met. 'The second prong ofthe governmental-interest analysis requires the Court to determine which state the issue ..." before the court. must first 'identify the governmental policies underlying the law of each state and how those policies are affected by each state's contacts to the litigation and to the parties." Veazey v. Doremus, 103 N.J. 244, 247 (1986). After reviewing the competing states' policies on the issue in dispute, ifit is found that either state's contacts to the litigation do not further the asserted policies, then that state's law should not apply. Emy, tort law, there are five main factors the court should use to guide its decision: "(1) the interests of interstate comity; (2) the interests of the parties; (3) the interests underlying the field oftort law; (4) the interests ofjudicial administration; and (5) the competing interests of the states." Fu, 3 acknowledges that none ofthe consumer fraud laws of other states is identical to the CF states have statutes that are similar enough to the CFA as to create a question as to whether there is truly a conflict at all while others provide sharply contrasting remedies and requirements. As the parties concur that there is an actual conflict, the court will provide a state by state analysis of the consumer fraud statutes to determine which states have the strongest relationship to the litigation. 29 • • supra, 160 N.J. at 122 (summarizing factors set forth in the Restatement (Second) of Conflict of Laws To evaluate the competing interests of the States, the courts must consider "what policies the legislature or court intended to protect by having that law apply to wholly domestic concerns, and then, whether those concerns will be furthered by applying that law to the multi-state situation." 187, 198 (1998). In other words, a state only has an interest in applying its law ifthe state's contacts with the litigation are related consider the qualitative contacts that the litigation has with the state's policies and not the quantitative contacts. Id. The contacts that are most significant to the analysis are: "the place where the injury occurred; the place where the conduct causing the injury occurred; the domicile, residence, nationality, place of incorporation and place ofbusiness ofthe parties; and the place where the relationship, if any, between the parties is centered." Id. The Restatement (Second) of Conflict ofLaws § 148 details a list of factors to consider when determining the appropriate law to apply to a claim of fraud where the plaintiff's alleged actions in reliance occurred in a state other than where the representations were made. The factors to consider are as follows: (a) the place, or places, where the plaintiffacted upon the defendant's representations, (b) the place where the plaintiffreceived the representations, (c) the place where the defendant made the representations, (d) the domicile, residence, nationality, place of incorporation and place of business ofthe parties, (e) the place where a tangible thing which is the subject of the transaction between the parties was situated at the time and, (f) the place where the plaintiff is which he has been induced to enter by the false representations of the defendant. Restatement (Second) of Conflict of Laws § 148. 30 • • In cases where pecuniary loss is said to have occurred due to fraud, the place ofloss is often difficult to detennine and thus, less important for determining the governing law than does the place of injury in cases ofphysical personal injury. rd. comment (cl. 'The place where the defendant made his false representations, on the other hand, is as important a contact in the selection of the law governing actions for fraud and misrepresentation as is the place ofthe defendant's conduct in the case of injuries to persons or to tangible things." rd. Evaluating the interests ofinterstate comity "require[s] courts to consider whether application of a competing state's laws would frustrate the policies of other interested states." Fu, supr!!, 160 N.J. at 122. A state should only impose its law on a particular issue ifit has a strong state policy that will be fostered by the application its law. Id. At 122-123. the interests underlying the field oftort law, the courts are required "to consider the degree to which deterrence and compensation, the fundamental goals of tort law, would be furthered by the application ofa state's local law." interests ofjudicial administration are "less significant for the purpose ofmaking choice-of-Iaw detenninations in tort actions." Erny. 171 N.J. at 102. In the matter at hand, in order to determine which state has the strongest interest in this litigation, first, New Jersey's policies and intentions underlying the CFA must be discussed. The CFA was enacted to "protect [the consumer] against fraudulent and unconscionable practices in the sale of goods and services." Marascio v. Campanella. 298 N.J.Super. 491, 500, 689 purposes of the Act are: (I) to compensate the victim for his or her actual loss; (2) to punish the wrongdoer through the award of treble damages; and (3) to attract competent counsel to counteract the "community scourge" of fraud by providing an incentive for an attorney to take a case involving a minor loss to the individual. Lettenmaier v. Lube Connection. Inc., 162 N.J. 134, 139 (1999). The Act is "remedial legislation and should be liberally construed to accomplish its dual objectives ofdeterrence and protection." Joe D'Egidio 31 • • Landscaping v. Apicella, 337 N.J.Super. 252,258, (App.Div.2001) (citing Letteumaier, supra, 162 N.J. at 139). Sprenger v. Trout, 375 N.J. Super. 120, 135-136 (App. Div. Feb. 14,2005);
see also, Wanetick v. Gateway Mistubishi, 163 N.J. 484 (2000). "The available legislative history demonstrates that the [CFA] was intended to be 'one ofthe strongest consumer protection laws in the nation.'" New Mea Constr. Corp. v. Hamer, 203 N.J. Super. 486, 501-502 (App. Div. 1985) (internal citations omitted). The policy rationales for the CFA clearly indicate that New Jersey has a strong interest in preventing fraud by its corporate citizens. The CFA has implemented strong measures to protect consumers and deter fraudulent behavior. N.J.s.A. 56:8-19 allows recovery for "any person who suffers any ascertainable loss" and there is no language in the CFA to indicate that the law was to be limited to New Jersey residents. See Boyes v. Greenwich Boat Works, Inc., 27 F.supp.2d 543 (D.N.J. 1998). Indeed, the CFA is intended to promote "truth and fair dealing in the market place." Feinberg, supra, 331 N.J. Super. at 512. In order to achieve this stated goal, the CFA has been interpreted liberally to cover a broad range ofpractices. Laelledo v. Beneficial Mgmt. Corp. of America, 150 N.J. 255, 264 (1997). More specifically, "[t]or nearly thirty years, [the New Jersey Supreme Court] has instructed trial courts to liberally allow class actions involving allegations of consumer fraud." Varacallo,~ 332 N.], Super. at 44. Logic, in addition to an analysis ofother state laws, shows that all consumer fraud statutes are intended to discourage fraud and provide some level ofprotection to consumers. In this respect, there is no conflict between the laws ofvarying jurisdictions. The conflicts between .state laws arise only in the extent ofprotection provided and the level of deterrence sought. To the extent that some states provide less protection for consumers than others, the rationale is generally to encourage business and other commercial transactions to take place within that
t Jersey law onto a corporation residing in New Jersey. Any deterrence to transactions being done within any particular state's borders by a New Jersey entity would be, at most, minimal because that New Jersey entity has already consented to be subject to the more stringent New Jersey law. Unless a particular state specifically enunciates a policy behind its consumer fraud laws that varies significantly from New Jersey's policy behind the CFA, that state will have to have very strong factual ties to this litigation in order to justify applying its law to this matter rather than the CFA. Having reviewed the extensive submissions by the parties and having heard oral arguments on this motion, there does not appear to be any state with stronger ties to this litigation than New Jersey. The putative class representative is organized and operating in New Jersey. The Defendant is a New Jersey corporation that is headquartered in Whitehouse Station, New Jersey. Development ofVIOXX® originally began at Merck Frosst completed" at Merck's facility in Rahway, New Jersey. (Merck's 2000 Annual Report, p. 8). Merck has a Human Health Product Approval Committee ("HHPAC") that oversees broad development of all Merck's products and gives final approval on plans and activities related to the product, including VIOXX®. HHPAC would meet on a monthly basis, and at least some of these meetings took place in New Jersey, including one on March 20,2001 wherein the VIOXX® Program Review was discussed. Merck also issued press releases from its New Jersey headquarters about VIOXX®-related developments. Much ofthe decision making about the marketing and testing ofVIOXX® was done in New Jersey. Communications regarding the labeling ofVIOXX® took place between the FDA and Merck employees based in New Jersey. Unlike the numerous and substantial fact-based contacts that New Jersey has with this litigation, there has been little evidence presented to establish contacts between this litigation and 33 the home state of a putative class member. The proposed class may consist of a vast number of entities that vary significantly in size and capacity. However. they all are influenced, according to plaintiffs, by the nationwide marketing plan ofMerck. As noted by Merck, there is a multitude of literature regarding NSAIDs, COX-2 inhibitors, and VIOXX® in particular. Some or all ofthis literature was at the very least considered by the various plan administrators or P&T Committees in every State formularies. These publications came from a variety of sources and plaintiff maintains they can prove scientists opinions, the literature, the studies were all manipulated by Merck. The marketing ofVIOXX® was a national effort that was planned or executed through New Jersey offices and plaintiffs may be able to prove any misrepresentations made were made to a national audience of all third party payors. As these facts indicate, factors (a) and (b) ofRestatement (Second) ofConflict of Laws § 148, the place where a plaintiff acted in reliance ofthe representations and the place where the representations were received, are very difficult to determine. Thus, where the decisions were made to provide coverage for VIOXX® is not as important a contact as where the alleged fraudulent representations were made. See Restatement (Second) ofConflict of Laws comment (c). Although there is evidence to indicate that Merck sent sales representatives or "detailers" to individual P&T Committees to promote VIOXX®, this does not provide greater contacts than New Jersey because information provided by a detailer would only be one factor of the many that even Merck acknowledges would go into the decision making process of including a particular drug on a formulary and not likely the most significant. Thus, the court finds that no individual state has stronger factual connection to this litigation than New Jersey. 34 • • As noted above, New Jersey has very strong policy interests behind the CFA, especially in a litigation such as this where a New Jersey corporation conducted the alleged fraud. The key questions are does New Jersey have a compelling public policy interest in applying New Jersey very strict consumer fraud law under the circumstances that exist in this case? The answer clearly is, yes. Merck is a New Jersey corporation and New Jersey has the most interest in policing and protecting its own corporations. Does New Jersey have any reason not to protect consumers (third party payors) from other states from fraud committed by a New Jersey corporation? The answer is clearly, no. The statute itself does not limit protection to New Jersey residents. law ifit offers them more protection than the law ofplaintiff's state? The answer is, no. Gantes v. !Cason Corp., 145 N.J. 478, the Supreme Court did a conflict oflaw analysis that resulted in New Jersey statutes oflimitations, not Georgia statutes ofrepose, being applied to a case brought by a Georgia plaintiff in New Jersey against a New Jersey manufacturer. The Court stated in that case at 145 N.J. 478, at 489: The interest in deterrence has been recognized as a relevant factor to be considered in choice-of-law decisions. See.!2,.g., Pfau v. Trent Aluminum Co.. 55 N.J. 511, 524, 263 A.2d 129(970) (noting "We are not certain that a defendant's domicile lacks an interest in seeing that its domiciliaries are held to the full measure of damages or the standard ofcare which that state's law providers for."); Mueller v. Parke Dav