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Home Ā» Briefs Ā» Elkies, et al. v. Johnson & Johnson Services, Inc., et al.

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Ph.D., Economics, University of Memphis

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April 26, 2024

Elkies, et al. v. Johnson & Johnson Services, Inc., et al.

In November 2017, Rony Elkies sought to represent a class of California consumers who purchased the pediatric pain product Infantsā€™ Tylenol, manufactured by defendant Johnson & Johnson.Ā  Filed in the U.S. District Court for the Central District of California, the lawsuit Elkies, et al. v. Johnson & Johnson Services, Inc., et al. (2:17-CV-7320) alleged that Johnson & Johnson violated Californiaā€™s consumer protection statutes because it marketed Infantsā€™ Tylenol in a manner which deceived reasonable consumers into believing it was specially formulated for infants.Ā  Meanwhile, Infantsā€™ Tylenol actually contained the same concentration of acetaminophen as the defendantsā€™ other pediatric paid product, Childrensā€™ Tylenol, yet the price of Infantsā€™ Tylenol was significantly higher, per ounce, than Childrenā€™s Tylenol.Ā  Econ Oneā€™s Dr. D.C. Sharp, an expert with experience in class action cases alleging false or misleading claims,Ā was retained by counsel for the putative class.

Dr. Sharp constructed a model that calculated the retail price differential between Infantsā€™ Tylenol and Childrenā€™s Tylenol while recognizing that some of this differential was attributable to known production cost differences due to the different dosing delivery devices that accompanied the two products.Ā  Sharpā€™s model assumed that, but-for the defendantsā€™ allegedly deceptive marketing of Infantsā€™ Tylenol, the percentage increase from cost of goods sold (COGS) to retail price (i.e., its ā€œretail markupā€) would equal that of Childrenā€™s Tylenol.Ā  Dr. Sharp provide a declaration and deposition testimony for the class certification phase, then provided an additional report and deposition testimony at the merits phase.Ā  A $6.3M settlement was reached between the parties in October 2019.

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