(CN) - Johnson & Johnson subsidiary McNeil-PPC must face claims that toxic Tylenol Arthritis packaging cost a school custodian his job, a federal judge ruled.
Michael Walters says he developed stomach problems so severe soon after taking Tylenol Arthritis in October 2009 that he had to take five days off from his job as a maintenance and grounds custodian for the North Hanover, N.J., Board of Education.
About two weeks after his first day off, Walters allegedly received a letter stating that his employment contract would be terminated as of Dec. 1, because he "had utilized ten of his allotted 12 sick days since July 1, 2009," the complaint states.
Later that month, Walters allegedly learned that "there was a recall on some lots of Tylenol Arthritis that had been sold to the public," including the drug that he purchased.
Indeed, the recall stemmed from stomach problems linked to chemical-tainted wood pallets used to transport and store Tylenol Arthritis packaging materials, which contaminated the drug itself, Walters claims.
Walters sued the drug's alleged manufacturer, Johnson & Johnson; the school board; and two district officials in 2011 under the New Jersey Products Liability Act (NJPLA). He later added J&J subsidiary McNeil-PPC Inc. as a defendant.
The school board was cleared as the complaint proceeded to federal court.
Looking at the second amended complaint earlier this month, U.S. District Judge Robert Kugler granted J&J summary judgment but kept the claims against McNeil intact.
Based on J&J's claim that it "does not design, develop, manufacture, market, promote or sell any products," the court tossed aside claims that J&J "sold" and "distributed" the drug.
"Because plaintiff has failed to counter defendants' evidence and demonstrate that there is a genuine dispute of material fact as to whether J&J is a 'product seller' - and thus can be held liable under the NJPLA - the court will grant J&J summary judgment on plaintiff's NJPLA claim," Kugler wrote.
Walters also failed to support his alter-ego claim against J&J, having failed to contradict the company's claim that it "does not intermingle funds" with McNeil, and keeps separate financial and corporate records, officers, and directors from the "indirect" subsidiary, the court found.
In refusing to nix the claims against McNeil, Kugler said "it is not for this court to pass judgment on the nature of plaintiff's alleged injury on a motion to dismiss."
"Plaintiff's allegation of some physical injury-no matter how slight-still alleges 'harm' as is required by the NJPLA," the March 5 opinion states.
Kugler added that, "at this juncture of the proceedings, plaintiff need only sufficiently allege proximate cause, not prove it."
"McNeil's arguments, while persuasive, would have this court engaging in a factual determination as to whether plaintiff's lost wages from his termination are too remote an injury to hold McNeil responsible for the allegedly defective Tylenol Arthritis," he continued. "Accepting plaintiff's allegations as true, as the court must on a motion to dismiss, McNeil's defective medication 'caused [plaintiff] ... to improperly lose his employment with the Board of Education of North Hanover Township, which [ ] resulted in his incurring significant damages, primarily, economic deprivation." (Brackets in original.)
The owner of more than 275 operating companies in 60 countries, Johnson & Johnson reported more than $71.3 billion in sales last year.
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