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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 Infants’ Tylenol, manufactured by defendant Johnson & Johnson.  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 California’s consumer protection statutes because it marketed Infants’ Tylenol in a manner which deceived reasonable consumers into believing it was specially formulated for infants.  Meanwhile, Infants’ Tylenol actually contained the same concentration of acetaminophen as the defendants’ other pediatric paid product, Childrens’ Tylenol, yet the price of Infants’ Tylenol was significantly higher, per ounce, than Children’s Tylenol.  Econ One’s Dr. D.C. Sharp, an expert with experience in class action cases alleging false or misleading claims, was retained by counsel for the putative class.

Dr. Sharp constructed a model that calculated the retail price differential between Infants’ Tylenol and Children’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.  Sharp’s model assumed that, but-for the defendants’ allegedly deceptive marketing of Infants’ Tylenol, the percentage increase from cost of goods sold (COGS) to retail price (i.e., its “retail markup”) would equal that of Children’s Tylenol.  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.  A $6.3M settlement was reached between the parties in October 2019.

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