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 approach eventually came to light, prompting a congressional inquiry in 2010.
Former Oregon 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 on Wednesday said 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.
