Tylenol-Tied Child Death Case Kept in Federal

(CN) - A federal judge refused to transfer claims that Johnson & Johnson's Infant's Tylenol immediately made a 4-year-old bleed from the nose and mouth until he died.

Shawn Arndt had bought a bottle of Infant's Tylenol and given a dose to his 4-year-old son Joshua, who had a slight fever in New York on Nov. 2, 2009, according to the complaint.

Within minutes, Joshua started bleeding from the nose and mouth, his father claims.

Despite being rushed to the hospital, the boy was pronounced dead upon arrival, according to the complaint.

Months later, Johnson & Johnson announced a recall of defective lots of Infant's Tylenol and other children's medication, including Arndt's purchase, on April 30, 2010, and shut down its subsidiary, McNeil-PPC's manufacturing plant at Fort Washington, Pa.

Arndt said a congressional investigation later revealed that the facility had terrible quality-control problems for several years, and that J&J and McNeil had implemented a stealth recall of various children's medications manufactured there, with the help of Inmar Inc. and its subsidiaries.

He sued the drugmakers in the Philadelphia Court of Common Pleas, but the defendants removed the suit to federal court.

Arndt moved to remand, arguing that McNeil's principal place of business is in Pennsylvania, and that named J&J and McNeil executives are citizens of the state.

The defendants countered that the store where Arndt bought the defective Tylenol, Tops Market, was fraudulently joined, and that McNeil principally does business in New Jersey.

Around the time that Arndt sued in 2012, U.S. District Judge Mary McLaughlin refused to remand a similar suit filed by a couple, Daniel and Katy Moore, whose 2-year-old son died after taking the drug. She declined to reconsider or let the couple appeal her ruling last year, as McNeil's plant is in Skillman, N.J.

Citing these decisions, another Pennsylvania judge refused in January to let a Nevada couple, Stacy and Neil Sherfey, remand claims that Infant's Tylenol bought at Wal-Mart killed their 2-week-old.

U.S. District Judge Gene E.K. Pratter likewise denied Arndt's motion to remand on March 5, finding that the "nerve center" of J&J's alleged misconduct is in New Jersey, though this "simple" approach sometimes produces a "counterintuitive" result, according to the ruling.

"Although some McNeil officers are located in Fort Washington, these officers do not, in fact, direct, control, or coordinate McNeil's business as a whole," Pratter wrote. "However, individuals in Skillman, N.J. do. Thus, like the district court in Sherfey, this court adopts the reasoning in Moore and holds that McNeil's principal place of business is Skillman, N.J."

Arndt cannot, however, advance claims against various individual officers at Johnson & Johnson and McNeil with regard to the alleged phantom recalls.

"As discussed in both Moore and Sherfey, the misstatements allegedly concealing bad conduct that were made after the tragic death of Mr. Arndt's son could not have caused his death and, though likely callous, are not actionable," Pratter wrote. "Assuming that plaintiff has adequately alleged a phantom recall of Infant's Tylenol, like the statements made after the death of Mr. Arndt's son, this after-the-fact 'active' conduct is not causally connected to Mr. Arndt's injury. While a phantom recall may reflect an intent to conceal things from the public, the actual act of removing products from shelves via a phantom recall would make it less likely, not more likely, for an injury related to allegedly defective medication to occur, in that the offending product would be less readily available. And although implementing a phantom recall would not alert the public to the dangers of a defective product, neither would it serve to conceal those defects from the public in such a way that could cause injury."

The Tops defendants were also fraudulently joined, according to the ruling, finding that the claims against them are either time-barred or lacking in merit..

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