Lawsuit Against Johnson & Johnson Filed Over ‘Phantom’ Motrin Recall

The state of Oregon claims that a ‘phantom’ recall of Motrin put its residents in danger and has filed a lawsuit against Johnson & Johnson and its McNeil Consumer Healthcare subsidiary. 

The Johnson & Johnson fraud lawsuit was filed on Wednesday by the Oregon Attorney General’s Office.

Attorney General John Kroger said that instead of announcing a recall that would have warned the public about defective batches of Motrin in late 2008, the company conducted a stealth buy back of the drug from store shelves and kept the problem quiet. The affected Motrin was not officially recalled until 2010.

The charges of the so-called ‘phantom recall’ first came up at a Congressional hearing last year after a massive Johnson & Johnson children’s medication recall issued on April 30 that affected 40 different liquid medications, including Motrin, Tylenol, Benadryl and Zyrtec. The company’s actions have led congress to begin considering giving the FDA expanded drug regulatory powers.

Oregon’s lawsuit, filed in Multnomah County Circuit Court, says that Johnson & Johnson discovered there were problems with supplies of Motrin sold in 8 and 24 count containers in late 2008. The caplets did not dissolve properly, which meant that consumers may not receive the expected dose. According to the lawsuit, McNeil chose not to inform the public of a recall and instead hired contractors to go into stores and secretly buy all the affected Motrin without telling the public or sellers.

According to the Oregon Attorney General’s Office, one of the company documents gave the following instructions to contractors:

“You should simply ‘act’ like a regular customer while making these purchases. THERE MUST BE NO MENTION OF THIS BEING A RECALL OF THE PRODUCT! If asked, simply state that your employer is checking the distribution chain of this product and needs to have some of it purchased for the project.”

One of the buyers became concerned about the orders being given by McNeil and alerted the Oregon Board of Pharmacy, which then notified the FDA. An official recall was still not announced until February 2010.

The Oregon lawsuit charges the drug maker with violating the state’s Unlawful Trade Practices Act (UTPA) on several counts, such as employing unconscionable tactics, making false or misleading representations and failing to disclose certain information. The counts carry a maximum penalty of $25,000 each.

The complaint is just the latest claim filed against the company over recalls in 2010. At least two other Johnson & Johnson class action lawsuits have been filed, accusing the company of fraud and racketeering.