Feb 27, 2023 - Charlie Cohen argued before the New Jersey Supreme Court on behalf of amicus curiae the New Jersey Defense Association in the products liability case McGinnis v. Bard.

 Cohen's argument before the court centered on two points: 

  • Whether evidence that a Class II medical device received clearance by the FDA pursuant to a 510(k) substantial equivalence decision is admissible.
  • Whether New Jersey law N.J.S.A. 2A:58C-5(c) applies to bar punitive damages in product liability cases involving Class II medical devices.

The case involved a claim that two Class II transvaginal mesh implants caused the plaintiff to suffer personal injuries. The trial court prohibited the defendant from introducing evidence at trial that the implants had received FDA clearance through the 510(k) process, and also held that New Jersey law N.J.S.A. 2A:58C-5(c) did not apply. The jury awarded the plaintiff $33 million in compensatory damages and $35 million in punitive damages in 2018.
On appeal, the New Jersey Superior Court Appellate Division remanded the case for a new trial, holding that the total exclusion of 510(k) evidence was an error. However, the Appellate Division affirmed the trial court's ruling that New Jersey law N.J.S.A. 2A:58C-5(c) did not apply. The Supreme Court of New Jersey granted certification to consider both of those rulings, and allowed four organizations to submit amicus curiae briefs – one on behalf of the plaintiff and three on behalf of the defendant.
Eric Blumenfeld and Cohen wrote and submitted an amicus curiae brief to the New Jersey Supreme Court in January 2022 supporting the defendant.
On February 27, the New Jersey Supreme Court heard over two hours of argument by counsel for the parties and four amici, including Cohen.
The New Jersey Defense Association connects defense attorneys, insurance claim professionals, self-insurers and other corporations who are active in the defense of damage suits or claims administration in New Jersey.