Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Moore v. Johnson & Johnson

United States District Court, Third Circuit

September 18, 2013



MARY A. McLAUGHLIN, District Judge.

This personal injury and wrongful death action arises out of injuries allegedly suffered by the plaintiffs' son after he ingested a dose of the over-the-counter medication, Children's Tylenol. The Children's Tylenol was produced by defendant McNEIL-PPC, Inc. ("McNEIL-PPC") at its Fort Washington, Pennsylvania production facility. The plaintiffs allege that their son's injuries and eventual death are directly attributable to quality control problems and defective production at the Fort Washington plant.

The plaintiffs initially filed suit in the Pennsylvania Court of Common Pleas, and the defendants removed the action to this court. On November 1, 2012, the Court denied the plaintiffs' motion to remand the action back to Pennsylvania court. Presently before the Court is the plaintiffs' motion for reconsideration of that decision or, in the alternative, to certify the earlier decision for interlocutory appeal.

After considering the factual and legal basis for its prior decision, and in view of additional evidence and legal argumentation presented by the parties, the Court reaches the same conclusion. It will deny the plaintiffs' motion for reconsideration or for interlocutory appeal.

I. Procedural Background

On December 29, 2011, the plaintiffs, Daniel and Katy Moore, filed suit in the Pennsylvania Court of Common Pleas against seventeen defendants, asserting twelve separate claims all stemming from the death of their son, River. Among those named as defendants in the Moores' lawsuit are McNEIL-PPC; McNEIL-PPC's ultimate parent corporation, Johnson & Johnson ("J&J"); and J&J executive William C. Weldon.

Several of the defendants, including J&J, McNEIL-PPC, and Weldon, jointly filed a notice of removal to this Court on January 30, 2012, to which other defendants consented. On February 14, 2012, the plaintiffs moved to remand the case to the Court of Common Pleas. Among other things, the plaintiffs argued that McNEIL-PPC and Weldon are citizens of Pennsylvania and, as such, are barred by the "forum defendant" rule from removing a suit in the Pennsylvania Court of Common Pleas to a federal court within Pennsylvania. See 28 U.S.C. § 1441(b).

In a memorandum and order, dated November 1, 2012, the Court denied the plaintiffs' motion to remand. See Moore v. Johnson & Johnson , 907 F.Supp.2d 646 (E.D. Pa. 2012). The Court determined that McNEIL-PPC's principal place of business was in Skillman, New Jersey, not Pennsylvania, making it a New Jersey citizen and permitting it to remove the Moores' lawsuit to this court. Id. at 659-61. The Court also found that Weldon had been fraudulently joined as a defendant and his citizenship could be ignored for jurisdictional purposes. Id. at 663-65.

On November 14, 2012, the plaintiffs filed their motion for reconsideration. They argue that the Court erred as a legal and factual matter when it concluded that McNEIL-PPC's nerve center is in New Jersey where executives associated with J&J's Family of Consumer Companies are located, as opposed to Fort Washington, where the president and vice president of McNEIL-PPC have their offices. In the alternative, the plaintiffs seek interlocutory appeal of this Court's decision and certification of the question of McNEIL-PPC's citizenship. The plaintiffs also ask this Court to reconsider its determination that Weldon was fraudulently joined as a defendant.

To ensure that it fully understood McNEIL-PPC's place within J&J's larger corporate structure and decisionmaking apparatus, and after consulting with the parties, the Court determined that it would be useful to hold an evidentiary hearing to gather additional evidence on the issue of McNEIL-PPC's principal place of business. To accommodate the parties' schedule, the Court held that hearing on July 9, 2013. At the hearing, the Court received documentary evidence and heard testimony from Raj Vaswani, an attorney and assistant secretary for McNEIL-PPC, and Gregory Herlan, the current president of McNEIL-PPC and the vice president and CFO of J&J's Family of Consumer Companies in North America.

II. Findings of Fact[1]

McNEIL-PPC is a wholly owned subsidiary of J&J.[2] It is one of several J&J subsidiaries that make and sell a number of consumer products. McNEIL-PPC has four principal officers: President Denice Torres, Vice President/CFO Kirk Barton; Secretary Desiree Ralls-Morrison; and Treasurer Gregory Herlan.[3] Torres and Barton are based in Fort Washington, Pennsylvania, the site of the McNeil Consumer Healthcare Division's production facility. Herlan's office is in Skillman, New Jersey, and Ralls-Morrison's office is in New Brunswick, New Jersey.[4] 5/2/12 Vaswani Dep. at 65; PX 4; 7/9/13 Hr'g Tr. at 9, 89.

McNEIL-PPC's bylaws vest its president and vice president with authority to supervise the business of the entire company. PX 3 (Bylaws), art. IV, § 3. In practice, however, the McNEIL-PPC officers do not exercise the authority in the manner set forth by those bylaws. Torres and Barton oversee only the McNeil Consumer Healthcare Division of McNEIL-PPC, which makes and distributes over-the-counter ("OTC") medications, such as Tylenol, Motrin, and Benadryl, and operates out of a facility in Fort Washington, Pennsylvania. They do not have involvement in the production, marketing, and sale of McNEIL-PPC's other products, which include Listerine mouthwash, Reach dental products, feminine hygiene products bearing the OB, Stayfree, and Carefree labels, and Rogaine. 7/9/13 Hr'g Tr. at 30-31, 34-35; 3/20/12 Vaswani Supp. Decl. ¶ 3; 5/2/12 Vaswani Dep. at 71, 89-91; 5/8/12 Vaswani Dep. at 52-53, 55-56, 60, 68.

Instead, the management functions for McNEIL-PPC as a whole are carried out by executives associated with an operating group that encompasses multiple J&J subsidiaries that produce consumer products.

J&J organizes its subsidiaries into three main sectors: pharmaceuticals, medical devices, and consumer businesses. Companies within the consumer businesses sector are part of the global Family of Consumer Companies ("FCC"). The FCC is not a legal entity, but rather a functional operating group. 7/9/13 Hr'g Tr. at 11-12, 59. Broad, overarching responsibility for the FCC is exercised by a worldwide Global Operating Committee ("GOC"), headed by Jesse Wu, a senior executive employed by J&J at its global headquarters in New Brunswick, New Jersey. 7/9/13 Hr'g Tr. at 11-12, 18-19, 59; DX 1 (Org. Chart).

The FCC is further broken down into regional units, including a regional unit for North America ("FCC-North America"). The subsidiaries in the FCC-North America are McNEIL-PPC; Johnson and Johnson Consumer Companies, Inc. ("JJCC"); the Neutrogena Corporation; Wellness and Prevention; and Johnson and Johnson, Inc., a Canadian corporation ("J&J Canada"). JJCC owns Band-Aid brand products, Neosporin, and certain skin care products under the Aveeno, Roc, and Clean and Clear labels. Neutrogena, formerly a separate company, was acquired by J&J and makes, owns, sells, distributes, and markets a variety of skin care products under its own label. 7/9/13 Hr'g Tr. at 12-13, 15-17, 51, 107; DX 1.

The FCC-North America unit is run by a group of senior executives that directs and sets business targets for the subsidiaries within that regional cluster of consumer businesses. The FCC-North America executives are employed by various J&J entities, and none is an employee of McNEIL-PPC. 7/9/13 Hr'g Tr. at 9-10, 20-21, 49, 51; 5/2/12 Vaswani Dep. at 121; Pls.' 5/21/12 Supp. Br., Ex. A (J&J Directory Entries).

This executive team is headed by Roberto Marques, the North American company group chairman for the consumer businesses. 7/9/13 Hr'g Tr. at 13, 59. In that role, Marques exercises "overall responsibility for the consumer businesses in North America, " and also sits on the GOC. 5/8/12 Vaswani Dep. at 76. Torres, the president of McNEIL-PPC, reports to Marques. DX 2 (J&J Directory Entry - D. Torres); 7/9/13 Hr'g Tr. at 33-34.

Assisting Marques are Gregory Herlan, the vice president of finance and CFO for the FCC-North America; Caitlin Pappas, the chief sales executive; Roberto DiBernardini, the senior human resources executive for the region; and Larry Montes, the FCC-North America's executive in charge of health care compliance.[5] All five of these executives have their principal offices in Skillman, New Jersey. They also meet at least monthly, typically in Skillman. The FCC-North America ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.