Judge Nixes Class Action Over Medication Recall

PHILADELPHIA (CN) - Johnson & Johnson consumers who claim that they overpaid for products that were later recalled cannot sue the company, a federal judge ruled.

The case represented 10 consolidated actions filed across the country concerning over-the-counter products made at a plant in Fort Washington, Pa., that were later recalled.

Consumers said the drugmaker's reputation led them to pay extra for brand-name versions of over-the-counter children's medicine like Tylenol (acetaminophen), Motrin (ibuprofen) and Benadryl (diphenhydramine).

"That is one reason why the failure of defendants to timely tell consumers the truth about the serious degradation of the quality and condition of the subject products has caused harm to consumers, who continued to pay inflated, premium prices for all subject products - not just those defendants chose to recall when government scrutiny became too great to avoid public disclosure any longer," according to the amended complaint against Johnson & Johnson and its subsidiary, McNeil Consumer Healthcare.

In an April 2010 report detailing its inspection of McNeil facilities in Fort Washington, the Food and Drug Administration identified manufacturing problems in testing, labeling, training and record keeping.

That same month, McNeil recalled 126 million bottles of infant and children's products, prompting a Congressional investigation.

Consumers who bought recalled drugs were offered coupons or cash refunds, but those who filed suit said the coupons failed to fully make up for their losses.

The refund applied only to the average retail price of products and excluded sales tax, they said.

McNeil should also cover alleged costs connected to investigation of the recall, including the disposal of the products, travel to buy replacement products and medical expenses incurred because of adverse reactions, according to the complaint.

Consumers claimed that McNeil's quality-control problems were longstanding, purposefully concealed, and the result of oversight cutbacks instituted by upper-management at Johnson & Johnson.

They said they didn't need to show that they actually received defective products because they suffered losses when they paid premium prices for products manufactured at a facility with quality-control problems.

U.S. District Judge Mary McLaughlin rejected that argument Friday, dismissing the case with prejudice.

"No named plaintiff either has been refused a refund for a product that was recalled or alleged that a nonrecalled product is defective as to them," McLaughlin wrote.

To establish that the drugs they purchased were defective, the plaintiffs should have showed some sort of personal injury, and not merely "rely upon the experiences of other individuals," McLaughlin wrote.

"The fact that other persons suffered adverse effects, or that the defendants recalled some products that were manufactured in the same facility as the drugs they purchased, does not suffice to establish injury in fact as to this group," the a 53-page opinion states.

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