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 Californiaās 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 Childrenās Tylenol.Ā Econ Oneās 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 Childrenās 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 Sharpās 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 āretail markupā) would equal that of Childrenās 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.