Appeals Court revives Oregon’s lawsuit over ‘phantom recall’ of Motrin

PORTLAND, Ore. – A lawsuit over Johnson & Johnson’s buyback of defective Motrin pills has been given new life by the Oregon Court of Appeals.

Johnson & Johnson discovered in late 2008 that supplies of the painkiller manufactured in Puerto Rico failed to dissolve properly, an issue that could lessen effectiveness.

Instead of notifying customers with a recall, the company hired a contractor to send secret shoppers out to buy the bad product from store shelves. The unique approach eventually came to light, prompting a congressional inquiry in 2010.

Former Oregon state Attorney General John Kroger sued the company and two subsidiaries in January 2011, saying the “phantom recall” exposed consumers to defective supplies of the pain reliever and violated the state’s unlawful trade practices act.

The Appeals Court said Wednesday a trial judge dismissed the case incorrectly three years ago.

Lawyers for Johnson & Johnson argued that the firms did not violate the trade practices act because there was no proof the defective product was ever sold in Oregon.

The Appeals Court disagreed. “The actionable conduct was the failure to inform Oregonians of a known material risk that the Motrin they were purchasing might be defective,” Chief Judge Rick Haselton wrote in sending the case back to trial court.

James McDermott, a lawyer representing Johnson & Johnson, told the Associated Press that the trial court correctly dismissed the state’s case. “And we believe that the Oregon Supreme Court will reach the same conclusion,” McDermott said.

The first phase of the buyback program took place in March and April 2009, and it was designed to survey the amount of defective product on shelves. A larger buyback began in June 2009, according to a summary of the case included in the opinion.

The drafted instructions to field employees stressed the program’s secretive nature.

“You should simply ‘act’ like a regular customer while making these purchases,” the instructions said. “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.”

In July 2009, a concerned secret shopper alerted the Oregon Board of Pharmacy, which then notified the federal Food and Drug Administration.