The 14 lawsuits filed against Johnson & Johnson in New Jersey contend its popular pain reliever, Tylenol, caused severe liver damage and that the company failed to warn consumers about the dangers. The cases were filed separately in Atlantic County, but J&J’s law firm has recently asked they be centralized under one judge, that a new judge be assigned and the courthouse changed.
The firm’s location of preference: New Brunswick, home of Johnson & Johnson.
In his application to the state administrative director of the courts, J&J attorney David Abernathy argued that moving the claims to Middlesex County “provides the prudent venue for centralized management of the Tylenol Liver Litigation.”
The courthouse is near a transportation hub and more centrally located than Atlantic County, he said. Abernathy, a partner at Drinker Biddle & Reath, also represents J&J subsidiary McNeil-PPC in the case, which manufactures Tylenol.
Abernathy’s application is notable because it provides a window into J&J’s strategy, legal experts and attorneys said.
“It’s a lot easier to say a different venue would be more appropriate than saying you can’t get a fair hearing in a particular court,” said Annemarie MacAvoy, an adjunct professor at Fordham Law School and a former federal prosecutor. “It’s very difficult to get a judge off of a case. You can’t change a judge just because you may not like him or her.”
For seeking a new judge, Abernathy argued that the assigned Superior Court judge on the case, Carol Higbee, already has several large-scale liability claims on her docket. All of those cases are in their early stages, he said. Judge Higbee has overseen numerous so-called “multicounty ligitation” cases involving large numbers of claims associated with a single drug or medical device. Higbee was one of the judges who oversaw Merck’s nationwide $4.85 billion settlement related to thousands of claims from its arthritis drug, Vioxx.
Superior Court Judge Jessica Mayer in Middlesex is Abernathy’s choice to handle the Tylenol cases. Mayer has led “several complex product liability litigations” that include Merk’s Propecia, J&J’s antipsychotic drug Risperdal and Branchburg-based Lifecell Corp.’s tissue graft, AlloDerm.
Henry Klingeman, a defense attorney and former deputy U.S. attorney in New Jersey, said attempting to move the cases and centralize them in the same court is a common sense approach to streamline what will be a complicated litigation. The request to switch the cases to J&J’s backyard, however, is a calculated but understandable tactic, he added.
“A corporate party like J&J is a big local employer and benefactor and provides a positive image in the area,” Klingeman said. “That can all be used to an advantage when picking a jury.”
In his application, Abernathy opposed what he called “blatant forum shopping” on the part of one plaintiff, who lives in Hunterdon County but filed her lawsuit in Atlantic County. When reached by phone at his Philadelphia law office, Abernathy declined to comment on pending litigation.
Seeger Weiss LLP of Newark, the firm representing all 14 Tylenol plaintiffs in New Jersey, has a Monday deadline to comment or object to Abernathy’s application. Christopher Seeger, the lead plaintiffs attorney, helped negotiate the massive Vioxx settlement in 2007. He did not respond to several requests for comment.
Mayer and Higbee are among the four judges in New Jersey selected to exclusively manage multicounty litigation cases. Those cases remain separate but are handled by the same judge and share a similar set of legal issues.
Marcus Rayner, executive director of the New Jersey Lawsuit Reform Alliance, said lawyers may request a change of venue “because they don’t want to say anything specific about the judge. They don’t want to be in front of the same judge they are attacking,” he said. Rayner, whose organization counts Johnson & Johnson as a member, said “it’s quiet clear the decisions coming out of Higbee’s court are against the industry.”
In March, Roche requested a New Jersey appeals court review Higbee’s refusal to recuse herself from massive litigation involving the company’s acne drug, Accutane, claiming she had a pro-plaintiff bias. Higbee has denied that charge.
But in an October 2011 trial that Higbee oversaw, a jury ruled in favor of Johnson & Johnson regarding the company’s failure to properly warn patients that its antibiotic, Levaquin, could lead to ruptured tendons. It was the first trial of more than 1,700 related lawsuits filed in New Jersey and 3,000 nationwide.
The Tylenol lawsuits, all filed in the last two years, contend Johnson & Johnson and McNeil “recklessly disregarded the fact that Tylenol causes debilitating and potentially lethal side effects.” It alleges the defendants continued to market Tylenol to consumers “without disclosing these side effects when there were safer alternative methods for pain relief.” As Tylenol’s only active ingredient, acetaminophen “is the leading cause of acute liver failure in the United States,” the suits contend.
Across the country, there are now 187 federal and state plaintiffs alleging Tylenol-related liver injuries across the country.
Of the New Jersey cases, two plaintiffs are from the Garden State, including Regina Jackson. Taken to the hospital on Feb. 25, 2011, with “abnormal liver enzymes,” Jackson’s “injury was caused by the toxic effects of the Tylenol she had ingested,” according to the lawsuit. The amount she took did not exceed the recommended dose, according to the suit.
In his application to consolidate the case, and change the venue and judge, Abernathy noted how Tylenol has been on the market more than 50 years and is one of the most commonly used drugs in the U.S. for pain and fever. Its risks of liver damage “associated with massive acetaminophen overdose has been known for decades,” he wrote.
In 2005, McNeil included a warning label that specified taking more than the recommended dose of acetaminophen may cause liver damage, Abernathy wrote, which came four years before the Food and Drug Administration mandated a liver-specific overdose warning for all such over-the-counter medicines.
He said the FDA has “repeatedly found Tylenol products to be safe and effective” when used as directed and that the company “has addressed the very risks alleged here and placed warnings on the package labels.”