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McNeil, J&J Seek Multicounty Litigation in New Jersey

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On April 1, 2013, the U.S. Judicial Panel on Multidistrict Litigation (JPML) consolidated all federal lawsuits bringing claims against McNeil PPC and parent company Johnson & Johnson (J&J), makers of Tylenol. Now, both companies seek similar consolidation at the state level in New Jersey, stating that centralization would help increase efficiency, reduce the risk of inconsistent rulings, and avoid duplicative discovery

FDA Warns About High Dosages of Acetaminophen

The new Tylenol MDL is taking place in the Eastern District of Pennsylvania, with 27 lawsuits initially transferred to the court. Judge Lawrence Stengel is overseeing the pretrial proceedings.

Plaintiffs who have filed a Tylenol lawsuit typically claim that use of the over-the-counter pain reliever caused liver damage or in some cases, liver failure and even wrongful death. They state that the drug maker failed to provide adequate warnings about the risks of taking too much of the medication.

On January 13, 2011, the FDA released a safety communication notifying healthcare professionals that it had asked drug manufacturers to limit the strength of acetaminophen in prescription products to 325 mg per tablet, to reduce the risk of severe liver injury. They also noted that a boxed warning highlighting the risks would be added to the label.

Earlier, in 2009, the FDA required all manufacturers of acetaminophen to add warnings on product labels regarding the risks of taking more than the recommended daily dosage.

Flip-Flopping on Consolidation

In their request for consolidation of all New Jersey Tylenol cases, J&J asked for consolidating in Middlesex County Superior Court. Since J&J and McNeil are headquartered in New Jersey, the location is convenient, with the state already home to many of the over 180 claims that have been filed concerning Tylenol and liver damage

The move for consolidation at the state level seems contradictory to J&J’s earlier stance, which was to oppose the formation of the federal MDL. At the time, they argued that the cases would depend on plaintiff-specific facts, and that the cases would be too different to benefit from centralization. Now that the MDL has been formed, however, J&J has decided to go along with the ideas.

“Although defendants initially objected to the consolidation of these cases for the purposes of trial,” the defendants stated, “the recent formation of the MDL changes the landscape and points toward consolidation in New Jersey as the most efficient strategy for all involved as these cases move forward.”

Nevertheless, the defendants maintain that they acted appropriately with regard to acetaminophen and liver damage, stating that the FDA has found the drug to be safe, and that as far back as 2005, McNeil warned that taking more than the recommended dose of the drug could cause liver damage.

Defendants Seek Consolidation in Middlesex County

In seeking consolidation in Middlesex County, McNeil and J&J stated that the court was easily accessible, and has the capacity to handle a multicounty litigation. Many of the Tylenol lawsuits are currently proceeding in Atlantic County, which is already managing other multicounty litigation. The defendants have suggested Judge Jessica Mayer as the one to oversee the proceedings.

“Placing all the New Jersey Tylenol liver litigation cases before a single experienced multicounty litigation judge, who can formulate and monitor a pretrial discovery program and coordinate with the MDL proceeding, will advance judicial economy, reduce the overall litigation management burdens and conserve the resources of the parties, their counsel, and the judiciary,” the defendants said in their application.