Tylenol injury suit filed in Phila.; hearing scheduled for March on MDL request

Attorneys representing McNeil Consumer Healthcare and Johnson & Johnson have filed a

notice of removal at the U.S. District Court for the Eastern District of Pennsylvania seeking to transfer a personal injury action filed by an Alabama woman at Common Pleas Court earlier this month to the federal venue.

In their Feb. 25 removal notice, Drinker Biddle & Reath lawyers David F. Abernethy, Melissa A. Graff and Meredith N. Reinhardt, said the matter belongs in federal court because there is diversity of citizenship between the plaintiff and the defendants and because the amount of damages sought by the plaintiff exceeds the jurisdictional limit in a Pennsylvania court.

The complaint was first filed on Feb. 5 at Philadelphia’s Common Pleas Court by attorneys Laurence S. Berman and Michael M. Weinkowitz of the Philadelphia firm Levin, Fishbein, Sedran & Berman on behalf of Sherry Laverne Burton, who alleges she has suffered from acute liver failure as a result of taking Extra Strength Tylenol.

The defendants named in the lawsuit are McNeil-PPC, McNeil Consumer Healthcare, and Johnson & Johnson.

The complaint alleges that Burton began taking Extra Strength Tylenol on a daily basis beginning sometime prior to December 2010, after which she learned she was suffering from liver failure.

The plaintiff’s diagnosis came after she went to Huntsville Hospital’s emergency room on Dec. 1, 2010, the lawsuit states.

The lawsuit asserts counts of strict liability, breach of implied warranty of merchantability, breach of implied warranty of fitness for a particular purpose, negligent failure to warn, negligence, negligent design defect, negligent misrepresentation, fraud and fraudulent concealment.

The defendants stand accused of manufacturing and placing into the stream of commerce a product that is defective in design and can cause harm to users.

The drug companies are also accused of over-promoting the product’s safety and efficacy, and of failing to properly warn users of the drug’s potential dangerous side effects.

Burton seeks compensatory damages, punitive damages, damages for pain and suffering, attorney’s fees and costs.

In their removal notice, the defense attorneys wrote that the amount in controversy appears to exceed $75,000, which would trigger federal court jurisdiction.

In related news, court records show that the United States Judicial Panel on Multidistrict Litigation will hear a request from the plaintiffs’ team at Levin, Fishbein, Sedran & Berman to create an MDL docket for pending Tylenol products liability cases at the Eastern District of Pennsylvania.

The panel’s website shows that the plaintiffs’ request for the creation of the MDL will be heard during a session scheduled for March 21 in San Diego.

Attorney Weinkowitz previously told the Pennsylvania Record that he and his co-counsel were anticipating being on the hearing list for either March in San Diego or May in Chicago.

The lawyers had filed their motion seeking the creation of an MDL back in January.

A total of 21 out of the 28 cases currently in existence – this excludes the aforementioned latest case – are pending at the Eastern District of Pennsylvania, the plaintiffs’ memorandum seeking MDL creation had stated.

The attorneys argue that consolidation in Philadelphia makes sense because McNeil Consumer Healthcare, a division of McNeil-PPC Inc., is headquartered in suburban Philadelphia, and because McNeil-PPC Inc. and Johnson & Johnson are both located in neighboring New Jersey.

The Burton case number is 2:13-cv-00985-LS.