On behalf of the American Association for Justice, CCL’s Andre M. Mura and Jeffrey White filed an amicus curiae brief urging the Massachusetts Supreme Judicial Court to uphold a $63 million award against Johnson & Johnson for serious injuries caused by its over-the-counter drug Children’s Motrin. In a unanimous decision issued on April 17, the Court affirmed the award.
CCL’s brief addressed Johnson & Johnson’s claim that this failure-to-warn suit was preempted by federal law governing over-the-counter drugs. CCL explained that there was no basis for preemption here. To establish preemption, the brief explained, Johnson & Johnson was required to prove that there was “clear evidence” that the FDA would not have approved a change to Children’s Motrin’s label to warn of Stevens-Johnson Syndrome or toxic epidermal necrolysis, which are life-threatening diseases. The Court agreed, finding that Johnson & Johnson could not meet this high burden.
CCL’s brief also addressed whether the federal constitution establishes substantive due process limits on the amount of compensatory damages awarded in this case. CCL explained that this case was not a proper vehicle for considering this question, and that, in any event, any substantive due process limits which apply to punitive damages should not be extended to limit compensatory damages. The Court declined to address this question.
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