The first bellwether trial in the Tylenol litigation is scheduled to begin on October 26, 2015. The Plaintiff, Rana Terry, who is suing on behalf of her sister, Denice Hayes, alleges in the case that the decedent took Tylenol Extra Strength in August 2010 according to the label’s instructions. It’s alleged further that Ms. Hayes went to the emergency room later that month with catastrophic liver damage and died a week later.
As Alabama lawyers know, only punitive damages are available for wrongful death claims under Alabama law. The Defendant asked the Court to apply New Jersey wrongful death law to the case. In May 2015, a Pennsylvania federal judge ruled that Plaintiffs can seek unlimited punitive damages under Alabama law. It’s alleged that acetaminophen in various Tylenol products from a Johnson & Johnson unit was responsible for users’ severe liver damage.
U.S. District Judge Lawrence F. Stengel said in his opinion that the decedent lived in Alabama, bought the medicine in Alabama and died in Alabama. The judge found that those facts outweigh the fact that Johnson & Johnson and its Tylenol-manufacturing subsidiary McNeil-PPC Inc. are New Jersey corporations. The decision is seen as a severe blow to Johnson & Johnson.
The company sought to apply New Jersey law, which is seen as more drugmaker-friendly, and clearly Alabama law applied. New Jersey law precludes punitive damages in drugs product liability cases in which the drug at issue has been generally recognized as safe and effective by the U.S. Food and Drug Administration (FDA). Judge Stengel wrote in his opinion:
In short, the plaintiff could gain maximum punitive damages under Alabama law and minimal, if any, punitive damages under New Jersey law.
Judge Stengel said in his opinion that a “true conflict” exists between Alabama’s law and that of New Jersey. Alabama law is clearly intended to protect the lives of its citizens by imposing unlimited damages on tortfeasors causing death, whereas New Jersey law is designed to protect drugmakers from excessive damages in product liability cases, he said.
The Court appears to have weighed the options carefully. There are approximately 200 cases pending in the MDL. It will be most interesting to see what happens when these cases are tried in federal court.
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