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Walters v. Johnson & Johnson

United States District Court, D. New Jersey

March 5, 2014



ROBERT B. KUGLER, District Judge.

In this case, Plaintiff Michael Walters ("Plaintiff") asserts claims under the New Jersey Products Liability Act ("NJPLA") against Defendants McNEIL-PPC, Inc. ("McNEIL") and Johnson & Johnson ("J&J"), as well as an "alter ego" claim against J&J. Defendants move for summary judgment on Plaintiff's claims against J&J, and for dismissal under Fed.R.Civ.P. 12(b)(6) on Plaintiff's claims against McNEIL. For the reasons stated herein, Defendants motion for summary judgment on Plaintiff's claims against J&J will be GRANTED, and their motion to dismiss on Plaintiff's claims against McNEIL will be DENIED.


In October 2009, Plaintiff began taking Tylenol Arthritis, a medication "manufactured, sold and distributed" by McNEIL, "a company owned, guided, managed, supervised and controlled" by J&J. (Second Am. Compl. ¶ 10.) On or about October 21, 2009, Plaintiff began to experience stomach problems, which required him to take off five days from work. (Id. ¶ 11.) At that time, Plaintiff was employed as a custodian in the maintenance and grounds department of the North Hanover Township Board of Education. (Id. ¶ 7.)

"On November 4, 2009, Plaintiff received a letter from Matthew J. Ernandes, Jr., the business administrator of the North Hanover Township School District and the secretary to the Board of Education of North Hanover Township, advising [Plaintiff] that he was recommending to the superintendent of that school district, Dr. Richard J. Carson, that [Plaintiff's employment] contract with the North Hanover Township District should be terminated effective December 1, 2009."[1] (Id. ¶ 12.) Plaintiff was informed by Mr. Ernandes that the reason he was recommended for termination was that he "had utilized ten of his allotted twelve sick days since July 1, 2009." (Id. ¶ 13.) Plaintiff was subsequently terminated from employment as of December 1, 2009. (Id. ¶14.)

In or around December 2009, Plaintiff became aware that "there was a recall on some lots of Tylenol Arthritis that had been sold to the public" and that the recall included the specific Tylenol Arthritis that he purchased. (Id. ¶ 15.) Plaintiff also learned that the recall was due to an incidence of stomach problems that were allegedly linked to J&J and McNEIL's use of wood pallets to transport and store packaging materials for the drug. (Id. ¶ 16.) These packing materials contained the chemical 2, 4, 6-tribromoanisole, which led to the breakdown of chemicals in the wood pallets and consequently contaminated Defendants' product. (Id. ¶¶ 16-17.)

Approximately two years later, on October 21, 2011, Plaintiff filed suit against J&J, the Board of Education of North Hanover Township, Dr. Richard J. Carson, and Matthew J. Ernandes Jr. in the Superior Court of New Jersey, Burlington County. On November 8, 2011, the Board of Education of North Hanover Township, and its employees Dr. Richard Carson and Matthew J. Ernandes, Jr. (collectively, the "North Hanover Defendants"), filed a Notice of Removal pursuant to 28 U.S.C. § 1441, invoking this Court's jurisdiction under 28 U.S.C. § 1331.[2] Plaintiff filed a Motion to Amend/Correct Complaint on April 10, 2012, (Doc. No. 23), which was not opposed and subsequently granted by Magistrate Judge Donio in an Order dated April 25, 2012, (Doc. No. 24). Plaintiff's proposed amendments only added McNEIL as a defendant. (Doc. No. 23.)

In his first Amended Complaint, Plaintiff asserted three causes of action against McNEIL: (1) negligence in the manufacture of Tylenol Arthritis; (2) breach of express and implied warranties in selling the "inherently defective" Tylenol Arthritis; and (3) strict liability for placing the allegedly defective product into the stream of commerce.[3] (Doc. No. 25, Am. Compl. ¶¶ 22-31.) On May 9, 2012, McNEIL filed a motion to dismiss Plaintiff's Amended Complaint, (Doc. No. 28), which the Court granted on December 17, 2012, (Doc. No. 44). In a separate opinion issued that date, the Court held that Plaintiff's negligence, breach of implied warranty, and strict liability claims were subsumed by the NJPLA, and his failure to assert a claim under that statute was a fatal pleading deficiency. (Doc. No. 43.) The Court further held that Plaintiff failed to state a claim for breach of express warranty. (Id.) Plaintiff was, however, permitted to seek leave to file a second amended complaint addressing the deficiencies noted in the Court's opinion. (Doc. No. 66.)

On January 16, 2013, Plaintiff filed his motion for leave to file a second amended complaint, (Doc. No. 49), which McNEIL and J&J did not oppose, (Doc. No. 56). On April 26, 2013, the North Hanover Defendants filed a motion for summary judgment. (Doc. No. 59.) On June 28, 2013, Plaintiff filed his Second Amended Complaint, [4] (Doc. No. 68), and on July 19, 2013, McNEIL and J&J filed their Motion to Dismiss or in the Alternative for Summary Judgment, (Doc. No. 71).

On December 19, 2013, the Court granted the North Hanover Defendants' motion for summary judgment and dismissed those defendants from this action. (Doc. No. 81.) On January 6, 2014, the Court ordered that McNEIL and J&J show cause as to why the Court should retain supplemental jurisdiction over Plaintiff's state law causes of action against McNEIL and J&J since the Court dismissed all claims over which it had original jurisdiction. (Doc. No. 83.) On January 20 and 21, 2014, Plaintiff and Defendants responded to the Court's order. (Doc. Nos. 85-86.)

The Court agrees with the parties that retaining jurisdiction over this matter serves the principles of judicial economy, convenience, and fairness, and that certain of Plaintiff's allegations are inextricable from the common nucleus of operative facts of his now dismissed claims against the North Hanover Defendants. Thus, the Court will retain jurisdiction and turn to J&J and McNEIL's pending motion.


Rule 12(b)(6) allows a court to dismiss an action for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). When evaluating a motion to dismiss, "courts accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Fowler v. UPMC Shadyside , 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. Cnty. of Allegheny , 515 F.3d 224, 233 (3d Cir. 2008)). In other words, a complaint is sufficient if it contains enough factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007). It is not for courts to decide at this point whether the moving party will succeed on the merits, but "whether they should be afforded an opportunity to offer evidence in support of their claims." In re Rockefeller Ctr. Prop., Inc. , 311 F.3d 198, 215 (3d Cir. 2002). Also, legal conclusions and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal , 556 U.S. at 678.

To determine whether a complaint is plausible on its face, courts conduct a three-part analysis. Santiago v. Warminster Twp. , 629 F.3d 121, 130 (3d Cir. 2010). First, the court must "tak[e] note of the elements a plaintiff must plead to state a claim." Id . (quoting Iqbal , 556 U.S. at 675). Second, the court should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 131 (quoting Iqbal , 556 U.S. at 680). Finally, "where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief." Id . (quoting Iqbal , 556 U.S. at 680). This plausibility determination is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal , 556 U.S. at 679. A complaint cannot survive where a court can only infer that a claim is merely possible rather than plausible. Id.

"To decide a motion to dismiss, courts generally consider only the allegations contained in the complaint, exhibits attached to the complaint and matters of public record." Pension Ben. Guar. Corp. v. White Consol. Indus., Inc. , 998 F.2d 1192, 1196 (3d Cir. 1993). If on a Rule 12(b)(6) motion dismiss, however,

matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

In re Rockefeller, 184 F.3d at 287 (citing Fed.R.Civ.P. 12(b)). When converting motions to dismiss into motions for summary judgment, courts "must provide the parties reasonable opportunity' to present all material relevant to a summary judgment motion. The parties can take advantage of this opportunity only if they have notice of the conversion.'" Id. at 287-88 (internal citations omitted).

The Third Circuit has opined that although notice need not be express, it is recommended "that District Courts provide express notice when they intend to convert a motion to dismiss" because it "is easy to give and removes ambiguities." Id. at 288 & n.11. Illustratively, "notice might be provided through the court's orders or at a hearing." Id . However, the Third Circuit has also held that where motions to dismiss have been framed in the alternative as motions for summary judgment, the parties are on notice that the court is considering the motions for summary judgment. See Hilfirty v. Shipman , 91 F.3d 573, 578-79 (3d Cir. 1996); see also In re Rockefeller, 184 F.3d at 288.

Summary judgment is appropriate where the Court is satisfied that "there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett , 477 U.S. 317, 330 (1986). A genuine dispute of material fact exists only if the evidence is such that a reasonable jury could find for the nonmoving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). When the Court weighs the evidence presented by the parties, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255.

The burden of establishing the nonexistence of a "genuine issue" is on the party moving for summary judgment. Aman v. Cort Furniture Rental Corp. , 85 F.3d 1074, 1080 (3d Cir. 1996). The moving party may satisfy its burden either by "produc[ing] evidence showing the absence of a genuine issue of material fact" or by showing' - that is, pointing out to the district court - that there is an absence of evidence to support the nonmoving party's case." Celotex , 477 U.S. at 325.

If the party seeking summary judgment makes this showing, it is left to the nonmoving party to "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986). Rather, to survive summary judgment, the nonmoving party must "make a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex , 477 U.S. at 322. Furthermore, "[w]hen opposing summary judgment, the nonmovant may not rest upon mere allegations, but rather must identify those facts of record which would contradict the facts ...

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