Class action against J&J dismissed

Jessica M. Karmasek Jul. 22, 2011, 2:30pm

PHILADELPHIA (Legal Newsline) - A federal court last week dismissed a case against pharmaceutical giant Johnson & Johnson for allegedly concealing quality control problems and manufacturing defects.

The class action represents a consolidation of individual cases filed in various courts, which were transferred to the U.S. District Court for the Eastern District of Pennsylvania.

The case arises out of purported quality-control issues affecting certain over-the-counter medications manufactured by Johnson & Johnson's consumer health care division, McNeil Consumer Healthcare.

The plaintiffs alleged that Johnson & Johnson and McNeil, along with certain executives, board members and third-party contractors, engaged in a conspiracy to conceal systemic quality control problems and manufacturing defects that began as early as 2008 and affected various adult and children's medications. Many of the medications were manufactured at McNeil's facility in Fort Washington, Pa.

The plaintiffs said because of the company's scheme -- and relying on Johnson & Johnson's reputation for safe and effective medications -- they purchased the McNeil products at higher prices than they were worth.

The plaintiffs sought to recover their out-of-pocket payments for the products in question and also sought damages for the alleged conspiracy to conceal the quality control problems.

Johnson & Johnson, McNeil and the third-party contractors filed motions to dismiss.

The court held oral arguments on the motions on June 29.

U.S. District Judge Mary A. McLaughlin, in the court's July 14 memorandum, granted the company's motions, dismissing the plaintiffs' claims in their entirety for lack of standing.

Standing is ordinarily a threshold issue for any case, the court said. "A plaintiff must allege a distinct and palpable injury to himself, even if it is an injury shared by a large class of other possible litigants."

McLaughlin said the consolidated amended complaint, or CAC, was "deficient" insofar as the plaintiffs did not allege which particular products they purchased.

"Because the plaintiffs do not identify which products were purchased, it is impossible to match the many incidents outlined in the CAC with the specific drugs that fall under the Subject Products category," she wrote for the court.

In addition, the plaintiffs did not allege how the unspecified products they purchased were defective. Instead, they allege only that each product suffered from "serious problems," McLaughlin said.

Even assuming that the "serious problems" encompass allegations of specific product recalls and FDA citations, the court said the plaintiffs fail to allege any personal harm arising therefrom.

"In the absence of particularized harm, the plaintiffs' injuries are abstract and hypothetical, rather than distinct and palpable," it wrote.

The plaintiffs, the court continued, also do not allege individualized injuries but rely entirely on injuries suffered by non-plaintiff class members.

"As a consequence, the plaintiffs have failed to establish that a single named plaintiff suffered any of the many injuries identified by the plaintiffs," McLaughlin wrote.

All claims against the third-party contractor defendants -- Carolina Logistics Services LLC, Carolina Supply Chain Services LLC, WIS International and Inmar Inc. -- were dismissed with prejudice.

All claims against Johnson & Johnson and McNeil were dismissed without prejudice.

The plaintiffs, the court said, may file an amended complaint within 30 days of its order.

From Legal Newsline: Reach Jessica Karmasek by email at

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