Plaintiffs who allege liver damage from over-the-counter Tylenol are renewing their push for discovery of marketing information.
Drugmakers Johnson & Johnson Inc., McNeil PPC, Novartis Consumer Health Inc. and Perrigo Co. suggested that an agreement the Food and Drug Administration and the Federal Trade Commission undertook to regulate advertisement of over-the-counter drugs blocks some of the plaintiffs’ claims.
Even if the FTC has sole authority to pursue any actions related to the advertising of over-the-counter drugs, that does not usurp “the authority of private parties to independently pursue relief under state laws,” the plaintiffs said.
The marketing requirements under the Food, Drug and Cosmetic Act and the FTC Act are the floor for drugmakers’ marketing, and states can require more from companies within their boundaries, the plaintiffs said.
While the plaintiffs want marketing information limited to the plaintiffs’ failure-to-warn claims, a marketing-related deposition also would be relevant to claims for negligent marketing, strict liability, negligence, defective design, fraud, misrepresentation and punitive damages, the plaintiffs said.
Relevance of evidence is not limited to the precise issues set out in pleadings, the plaintiffs said.
U.S. District Judge Lawrence Stengel is presiding over the Tylenol MDL pending in the U.S. District Court of the Eastern District of Pennsylvania.
In New Jersey state-court proceedings, Superior Court Judge Carol Higbee ruled that the plaintiffs are entitled to discovery about marketing over a period of decades. The first Tylenol trial in New Jersey is scheduled for July 16.
Higbee was transferred to the appellate bench for two months.
Amaris Elliott-Engle is a contributor to law.com.