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Supreme Court Declines Johnson & Johnson Appeal

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Posted on September 20, 2016

On January 19, 2016, the Supreme Court of the United States (SCOTUS) declined to hear Johnson & Johnson’s appeal of a $140 million judgment entered against the company by a Massachusetts jury. The jury agreed with the plaintiff’s complaint, which alleged that the company had failed to warn consumers that its Children’s Motrin medication could cause a terrible skin condition.

The product caused the plaintiff in the case to develop toxic epidermal necrolysis, which severely damages the body’s mucous membranes and in effect, melts the skin. The plaintiff child lost 90 percent of her skin, 80 percent of her lung capacity, and was rendered blind when she experienced the side effects at seven years old in 2003.

Johnson & Johnson believes that a third-party, the Food and Drug Administration (FDA), was liable for the damages and that SCOTUS should decide liability on appeal. In response to a citizen’s petition, the FDA declined to add the specific warning language required by Massachusetts law to the label for over-the-counter Children’s Motrin. Instead, the FDA said that the warning language need only to go on the label for Children’s Motrin acquired via prescription.

The Massachusetts Supreme Judicial Court reasoned that if Johnson & Johnson themselves, instead of a citizen, had petitioned to have the specific warning language added to the labels of over-the-counter Children’s Motrin, then the FDA would not have rejected the petition.

A Philadelphia jury found against Johnson & Johnson in a $10 million verdict recorded in 2010. The plaintiff in the 2010 case was a three-year-old victim who came down with Stevens-Johnson syndrome, a form of toxic epidermal necrolysis, after taking Children’s Motrin. The Pennsylvania Superior Court upheld the verdict in 2014 and the Pennsylvania Supreme Court declined to hear Johnson & Johnson’s appeal soon thereafter.

Product liability lawyers say that the decisions by judges and justices in Pennsylvania and Massachusetts courts follows the theory of liability that drug manufacturers – not federal regulators, parents, or doctors –  have the duty to make their products safe since they are selling the product and making a profit from it.

A similar case against Johnson & Johnson is currently in progress in the United States District Court for the Eastern District of Pennsylvania. The plaintiff in this case was hospitalized for almost a month after taking Children’s Motrin, had 30 percent of her body taken over by the disease, was left blind in one eye, has a severe sensitivity to light and has undergone multiple surgeries.