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Stacy Sherfey, et al. v. Johnson & Johnson

August 17, 2012

STACY SHERFEY, ET AL.
v.
JOHNSON & JOHNSON, ET AL.



The opinion of the court was delivered by: McLaughlin, J.

MEMORANDUM

This action was filed in the Court of Common Pleas of Philadelphia County on June 27, 2012 by Stacy Sherfey, as an individual and as administrator of the estate of her son, Tracen, and her husband Neil Sherfey. The Sherfeys are residents of Nevada. They allege that when Stacy Sherfey administered three doses of Infant's Tylenol to Tracen over two days in February, 2009, he experienced acute liver failure and died. Compl.¶¶ 102-08. They bring products liability claims against Johnson & Johnson ("J&J"); Johnson & Johnson Sales and Logistics Company; McNeil-PPC, Inc. ("McNeil"); a number of their high-level executives; Wal-Mart Stores, Inc., where the plaintiffs allege they purchased the Infants' Tylenol; Inmar, Inc.; Carolina Supply Chain Services, LLC; and Carolina Logistics Services, LLC. The plaintiffs allege that an improper or inadequately publicized recall of medicines by the defendants led them to remain ignorant of risks associated with Infants' Tylenol and caused their son's death.

The defendants removed the action to this Court on July 20, 2012, asserting that complete diversity exists between the plaintiffs and all properly joined defendants. As part of their Notice of Removal, the defendants designated this action as related, under Local Rule 40.1, to two actions before the undersigned, one recently dismissed and one pending: In re McNeil Consumer Healthcare, et al., Marketing and Sales Practices Litigation, MDL No. 2190 ("the MDL"), and Moore v. Johnson & Johnson, et al., No. 12-490. As a result of that designation, this action was assigned to the undersigned.

In the MDL, a number of actions were consolidated in this Court on behalf of plaintiffs who had suffered only economic injury as a result of having purchased drugs manufactured at plants with quality control problems and the alleged inadequate recall referred to above. See In re McNeil, ___ F. Supp. 2d ___, 2012 WL 2885392, at *1 (E.D. Pa. July 13, 2012). The Moore plaintiffs are Washington residents who purchased "Very Berry" Children's Tylenol at a Costco store in Union Gap, Washington, and have brought a products liability action against a similar set of defendants. Moore v. Johnson & Johnson, Civil No. 12-490, Docket No. 1 Ex. A at ¶ 22 (E.D. Pa.).

The plaintiffs moved on July 24, 2012 to strike the defendants' designation and have the case reassigned by the Clerk of Court pursuant to this Court's random assignment system. The Court will grant the motion because this case is not "related" to Moore or the MDL under Local Rule 40.1.

I. The Rule

Local Rule 40.1 ("Assignment of Court Business") provides:

. . . . (b) . . . .

(3) Related Cases. At the time of filing any civil action or proceeding, counsel shall indicate on the appropriate form whether the case is related to any other pending or within one (1) year previously terminated action of this court.

A. Civil cases are deemed related when a case filed relates to property included in another suit, or involves the same issue of fact or grows out of the same transaction as another suit . . . .

Newly filed cases marked by counsel as "related" to earlier cases are automatically given to the judge before whom those earlier cases were assigned. The case may be referred to the assignment clerk for reassignment if the judge "is of the opinion that the relationship does not exist." Local Rule 40.1(c)(1).

II. Discussion

The plaintiffs assert that this action "diverge[s] significantly" from Moore and the MDL. The defendants argue that (1) there are a number of factual allegations that are identical or nearly identical in both Moore and the instant case; (2) both cases ultimately assert the same products liability theories of recovery; (3) almost all the same defendants are named; (4) the same "transactions or occurrences" are at issue in all three cases, namely quality control problems at McNeil and a deficient recall of medicines produced at its plants. The Court concludes that although similar issues of fact and law as those in Moore and the MDL are undoubtedly raised by this case, the similarities are insufficient to render this case "related" to either as defined by Local Rule 40.1.

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. The case of Sellers v. Phila. Police Comm'r Timoney, No. 01-3760, 2002 WL 32348499 (E.D. Pa. Feb. 7, 2002), is instructive. Four cases had been filed in this Court alleging police misconduct in connection with the Republican National Convention; the first-filed, Franks v. City of Philadelphia, was randomly assigned to Judge Pollak, and three subsequent cases were marked by plaintiffs' counsel as related: Fried v. City of Philadelphia, Cooper v. Mitchell, and Sellers. All four cases set forth the ...


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