Children’s Tylenol Suit to Stay in Pennsylvania

(CN) - Parents cannot remand claims that their child died from taking Children's Tylenol, which Johnson & Johnson recalled without telling the public why, a federal judge ruled.

Daniel and Katy Moore sued Johnson & Johnson, McNeil Consumer Healthcare, Costco, and more than a dozen others in Pennsylvania state court in December 2011, asserting 12 separate claims stemming from the death of their 2-year-old son, River.

After his mother gave him Children's Tylenol on July 22, 2010, River began spitting up blood, and he died of liver failure the next day, the Moores said.

"Johnson & Johnson, a Fortune 50 Company with $60 billion in annual sales, knew of defects, impurities and contamination in the children's drugs, and yet embarked on a 'phantom' or 'stealth' recall of these drugs to hide these problems so the general public, ignorant of the dangers, would continue buying and administering these brand name drugs to their children," the parents claimed.

They said the defendants ignored quality control problems and defective production at manufacturer McNeil-PPC Inc.'s facility in Fort Washington, Pa.

Johnson & Johnson and its McNeil subsidiary had contractors secretly go into stores and buy up all the tainted products, "acting like regular customers," the Moores claimed.

McNeil executives allegedly said in internal emails, "We are just trying to prevent a recall and a lot of expended dollars," and called the stealth recall "a major win for us as it limits the press that will be seen."

McNeil-PPC issued a recall of over 136 million bottles of about 40 types of children's and infant liquid medications, including Tylenol, on April 30, 2010, due to "filth and contamination" at the Fort Washington plant, which was later shut down, the plaintiffs said.

Johnson & Johnson chairman and CEO William Weldon later tried to hide the poor manufacturing conditions at testimony before Congress on Sept. 30, 2010, the Moores claimed.

They seek punitive damages for product liability, recklessness, breach of warranty, emotional distress, violation of consumer protection law, civil conspiracy and wrongful death.

After the defendants removed the action to the Eastern District of Pennsylvania, U.S. District Judge Mary McLaughlin denied the plaintiffs' motion to remand on Nov. 1, 2012.

The judge this month refused to reconsider or let the Moores appeal her ruling, holding that because McNeil-PPC's production facility is in Skillman, N.J., it was allowed to remove the suit.

McLaughlin also tossed aside the Moores' claim that nearly a year before Weldon testified before Congress, McNeil and Johnson & Johnson learned that a four-year-old boy had died after taking Tylenol Infant Drops.

"First, this evidence was not incorporated in the 'complaint at the time of removal,' which remains the focus of the court's fraudulent joinder analysis," McLaughlin wrote. "Second, this report relates to Tylenol Infant Drops, not Children's Tylenol, the product that the plaintiffs claim harmed River Moore. Third, neither piece of evidence demonstrates that Weldon, in particular, was made aware of the dangers posed by J&J [over-the-counter] OTC products. Fourth, and most importantly, this evidence does not demonstrate that Weldon engaged in the misfeasance required to hold a corporate officer liable in tort."

Interlocutory appeal is not warranted either, since the plaintiffs failed to demonstrate an intracircuit split as to where McNeil-PPC's principal place of business is located, McLaughlin said.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit