Case Study: Johnson & Johnson

Motrin Maker Wins Reversal of “Inconsistent” Jury Award

O’Melveny serves as appellate counsel for Johnson & Johnson and its McNeil Consumer Healthcare subsidiary in a series of appeals around the country in cases claiming personal injury or death from adverse reactions to the over-the-counter pain reliever Motrin. In June 2017, we scored a major victory when a California appellate court overturned a US$48 million jury verdict. The published opinion strengthens the law in favor of pharmaceutical companies on the issues of federal preemption of over-the-counter drug design defect claims and the non-applicability of California’s “consumer expectation” test for strict liability design defect claims in this kind of case.

Plaintiff Christopher Trejo alleged that Motrin had caused him to suffer from Stevens-Johnson syndrome, a severe and often fatal adverse skin reaction. He claimed that the medication was defectively designed and should have carried stronger warnings about the risk. In 2011, a Los Angeles jury agreed and awarded him US$32 million in compensatory damages and US$16 million in punitive damages. 

O’Melveny took over the case on appeal and won a reversal, with the Second Appellate District concluding that federal law preempted the claim that the drug should have been designed with a different active ingredient, the “consumer expectation” test for design defect did not apply, and jury findings on the strict liability and negligent warnings claims were “fatally inconsistent.” The appellate court reversed the judgment outright as to J&J and ordered a new trial for McNeil on the warnings claims.

In addition to serving as appellate counsel for J&J and McNeil, O’Melveny is also responsible for the legal aspects of the Motrin trials, including preparation of pre-trial motions, in-trial motions, jury instructions, and the verdict form, preservation of the record for appeal, and advice on legal and appellate strategy. View More Case Studies