Jon Campisi Aug. 21, 2012, 8:40am

A federal judge in Philadelphia has granted a request by a plaintiff in a products liability

case against drug maker Johnson & Johnson to remove and reassign the case, agreeing with the plaintiff that her suit does not belong consolidated in the multi-district litigation docket containing similar claims.

In an Aug. 17 order, U.S. District Judge Mary A. McLaughlin both granted a motion for random assignment and to strike the defendants’ designation of related actions motion that had been filed by attorneys for Stacy Sherfey, a woman suing Johnson & Johnson over the death of her young son.

Sherfey claims that the boy’s death in February 2009 is directly linked to the three doses of Infant’s Tylenol that she gave her child over a two-day period.

After ingesting the medication, the boy experienced acute liver failure and died.

On June 27 of this year, lawyers for Sherfey filed her civil action in the Philadelphia Court of Common Pleas, but attorneys for Johnson & Johnson removed the action to the U.S. District Court for the Eastern District of Philadelphia asserting that complete diversity exists between the parties.

As part of their removal notice, the defendants designated the action related to two other actions, one recently dismissed and one pending.

They are the McNeil Consumer Healthcare et al. Marketing and Sales Practices Litigation, a multi-district docket, and Moore v. Johnson & Johnson et al.

The plaintiff argued that her case does not belong in the MDL docket in particular because those consolidated actions involved plaintiffs who had only suffered economic injuries as a result of having purchased drugs manufactured at plants with quality control problems and product recalls.

On July 24, Sherfey’s lawyers moved to strike the defendants’ designation and have the case reassigned by the Clerk of Court.

The defendants argued that there are a number of factual allegations that are “nearly identical” in the various cases and that the cases ultimately assert the same products liability theories of recovery.

In her order, McLaughlin wrote that she agreed to the plaintiff’s request because this particular case is not “related” to the other two.

“In interpreting the language of Rule 40.1 (b) (3) (A), other judges of this Court have concluded that setting forth similar legal theories and having the same general factual basis giving rise to the claims in suit do not suffice for a case to be ‘related’ to another,” McLaughlin wrote.

The judge went on to state that the “virtues of transparency, avoiding the appearance of arbitrariness, and upholding the integrity of the random assignment system weigh in favor of a narrow interpretation of Rule 40.1 and for random assignment” despite some similarities between the various cases involved.

Aside from Johnson & Johnson, other defendants involved in the case included, but are not limited to, Wal-Mart Stores Inc., Carolina Supply Chain Services LLC and Carolina Logistics Services LLC.

Sherfey resides in Nevada.

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