Jon Campisi Mar. 13, 2014, 6:54am


A father’s lawsuit against Johnson & Johnson over his son’s death, allegedly

due to a dose of Children’s Tylenol, will remain in federal court after a U.S. District judge denied the plaintiff’s motion to remand the matter to Philadelphia’s Court of Common Pleas.

U.S. District Judge Gene E.K. Pratter agreed with the defense in the case, which argued that McNeil PPC is a New Jersey citizen and that all the other defendants who were said to have presented an impediment to removal were fraudulently joined to the litigation.

The lawsuit stems from the death of 4-year-old Joshua Arndt who died on Nov. 2, 2009, in his New York home after his father, Shawn Arndt, the plaintiff, gave the child one dose of Infant’s Tylenol.

Within minutes of receiving the medication, the boy started bleeding from the nose and mouth.

Joshua was rushed to the hospital, but he was pronounced dead upon arrival, according to the father’s complaint.

More than five months later, the record shows, Johnson & Johnson, one of the defendants in the litigation, announced a recall of defective Infant’s Tylenol and other children’s medicine, which covered the bottle purchased by Shawn Arndt.

Johnson & Johnson and subsidiary McNeil also shut down the McNeil manufacturing plant in Fort Washington, Montgomery County, which is located just outside of Philadelphia, after which a Congressional investigation determined that that plant had pervasive quality control problems for many years, according to court records.

In his lawsuit, Arndt argued that several of the other defendants in the case had a hand in the decision-making that led to the contaminated products reaching store shelves.

Arndt filed his lawsuit on Oct. 31, 2012, at the Philadelphia Court of Common Pleas naming 16 defendants in total.

The defense subsequently removed the case to the U.S. District Court in Philadelphia and the plaintiff sought to remand the case back to Common Pleas Court.

The defendants argued that some of the defendants were fraudulently joined to the litigation and that McNeil’s principal place of business is in New Jersey, not Pennsylvania, as the plaintiff contended.

They argued that complete diversity of citizenship exists and that the forum defendant rule was not violated by removal to federal court.

Records show that shortly after Arndt field his motion to remand, U.S. District Judge Mary McLaughlin denied a similar motion to remand another case involving Children’s Tylenol pending at the Eastern District of Pennsylvania.

In her March 5 memorandum and order, Pratter wrote that individuals in Skillman, N.J., unlike those in Fort Washington, Pa., direct, control or otherwise coordinate McNeil’s business as a whole, and therefore the court adopted the reasoning in Judge McLaughlin’s case that determined McNeil’s principal place of business is in that New Jersey municipality.

Therefore, Pratter wrote, McNeil’s status as a defendant does not prevent removal to the Eastern District of Pennsylvania.

As for the fraudulent joinder claim, Arndt had contended that he asserted viable claims against the various individual defendants, many of who are Pennsylvania residents.

The plaintiff in Moore v. Johnson & Johnson, the similar case handled by McLaughlin, had brought claims against a few of the same people named in the Arndt suit.

In that case, McLaughlin held that the individuals had been fraudulently joined to the litigation.

In the present case, Pratter wrote that the issue turns on whether Arndt has alleged successfully that the individuals actually participated in tortious conduct, or rather whether the allegations reflect misfeasance as opposed to mere nonfeasance.

Under Pennsylvania law, Pratter noted, corporate officers can be held personally liable if they “specifically direct the particular act to be done or participate, or cooperate therein.”

Arndt claimed that the individual defendants substantially reduced resources for quality control, failed to address quality control warnings from the Food and Drug Administration, dismantled corporate compliance groups, planned and implemented a secret recall of various medications, concealed dangers from the public, and continued to ship products despite knowledge of their defects.

For the most part, Pratter wrote, the allegations conjure up “classic nonfeasance,” meaning they involve alleged failures to act.

“Despite an attempt to set forth more fulsome allegations against a much larger number of individual defendants in this case as compared with Moore, nowhere does the Complaint contain allegations suggesting that any of the individual defendants were directly involved in the manufacture or distribution of Infant’s Tylenol,” the judge wrote.

Pratter wrote that because the plaintiff has not alleged any conduct on the part of the individual defendants that is causally connected to his injury and amounts to misfeasance, as opposed to nonfeasance, the individual defendants were fraudulently joined to the case, and the claims against them would have to be dismissed, meaning they present no impediment to diversity jurisdiction necessary for removal to federal court.

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