A federal multidistrict litigation for plaintiffs who allege that their use of over-the-counter Tylenol caused their livers to fail or be poisoned was approved this week to be presided in front of U.S. District Judge Lawrence F. Stengel of the Eastern District of Pennsylvania.
Drugmakers McNeil/Johnson & Johnson, Novartis and L. Perrigo Co. opposed the consolidation of 27 cases in front of Stengel. But McNeil and Perrigo did favor the Eastern District of Pennsylvania as the site of the MDL if one was approved.
Stengel has already been assigned the federal cases in Pennsylvania.
"Centralization in the Eastern District of Pennsylvania will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation," said the U.S. Judicial Panel on Multidistrict Litigation in an order. "The actions all involve allegations that ingesting acetaminophen — specifically, OTC Tylenol in its various forms — can cause liver injury. The actions share factual issues concerning the design, manufacture, labeling, marketing, and sale of Tylenol."
The panel also said that an MDL in the Eastern District of Pennsylvania was prudent because McNeil Consumer Healthcare is headquartered in the jurisdiction, while McNeil-PPC and Johnson & Johnson are headquartered in neighboring New Jersey.
The judges on the U.S. Judicial Panel on Multidistrict Litigation included U.S. District Judge William Royal Furgeson Jr. of the Northern District of Texas, Judge Marjorie O. Rendell of the U.S. Court of Appeals for the Third Circuit, U.S. District Judge Lewis A. Kaplan of the Southern District of New York, U.S. District Judge Paul J. Barbadoro of the District of New Hampshire, and U.S. District Senior Judge Charles R. Breyer of the Northern District of California.
Stengel "is an experienced jurist, and we have every confidence that he will steer this litigation on a prudent course," the panel said.
Twenty-one cases are from the Eastern District of Pennsylvania, one case is from the Middle District of Florida, one case is from the Southern District of Florida, one case is from the District of Massachusetts, one case is from the Southern District of Mississippi, one case is from the District of New Jersey, and one case is from the Eastern District of New York.
U.S. District Judge John G. Heyburn II of the Western District of Kentucky did not participate in the panel’s decision.
Plaintiffs attorney Michael M. Weinkowitz, of Levin, Fishbein, Sedran & Berman in Philadelphia, said in an email: "The plaintiffs are pleased with the creation of the MDL in the Eastern District of Pennsylvania before an experienced jurist. As recognized by the panel, ‘centralization will eliminate duplicative discovery, prevent inconsistent pretrial rulings’ which will benefit all parties."
The firm filed many of its cases in the Philadelphia Court of Common Pleas before they were removed to federal court.
McNeil said in a statement it was disappointed with the decision "because we do not believe the cases meet the criteria for multidistrict litigation."
McNeil also said that it remains confident on the safety and efficacy of Tylenol products as well as the warnings of risks of using over-the-counter Tylenol.
Novartis is a defendant in just one case in which a plaintiff is alleging injuries not only from McNeil’s Tylenol but Novartis’ Theraflu and Equate Pain Reliever Acetaminophen, the panel said.
A Novartis spokeswoman declined to comment and a Perrigo representative did not respond to a request for comment.
The plaintiffs argued in court papers the cases involve common questions of fact of whether Tylenol products are defective and common questions of law of whether McNeil failed to properly warn plaintiffs of the risks of liver toxicity.