Terry v. Mcneil-Ppc, Inc. (In re Tylenol (Acetaminophen) Mktg.)

• Decision Date: 13 November 2015
• Docket Number: 2:13-md-02436,MDL NO. 2436,Civil Action No. 2:12-cv-07263
• Parties: IN RE: TYLENOL (ACETAMINOPHEN) MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION This Document Relates to: Rana Terry, as Personal Representative and Administrator of the Estate of Denice Hayes, Deceased, Plaintiff, v. McNEIL-PPC, Inc., McNeil Consumer Healthcare, and Johnson & Johnson, Inc., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

IN RE: TYLENOL (ACETAMINOPHEN) MARKETING, SALES PRACTICES

AND PRODUCTS LIABILITY LITIGATION

This Document Relates to:

Rana Terry, as Personal Representative and Administrator of

the Estate of Denice Hayes, Deceased, Plaintiff, v. McNEIL-PPC, Inc., McNeil Consumer Healthcare,and Johnson & Johnson, Inc., Defendants.

MDL NO. 2436

2:13-md-02436

Civil Action No. 2:12-cv-07263

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA

November 13, 2015

HON. LAWRENCE F. STENGEL

MEMORANDUM

Stengel, J.

This case is part of a Multidistrict Litigation (MDL) involving claims of liver damage from the use of Tylenol.¹ The court chose this case for the first "bellwether" trial.² Plaintiff Rana Terry claims that her sister, Denice Hayes, died of acute liver failure after taking Tylenol "as directed."³ All events relevant to this claim took place in Alabama; Ms. Terry and Ms. Hayes were Alabama residents. The decedent's sister asserted a wrongful death claim against Johnson & Johnson and McNeil—the makers of Tylenol—on behalf of her estate.⁴ The defendants argue that the Alabama wrongful death statute is unconstitutional under BMW of N. Am. v. Gore, 517 U.S. 559 (1996), and its progeny. They have moved for summary judgment. For the reasons set forth below, I will deny their motion for summary judgment.

I. The Alabama Wrongful Death Statute

In Alabama, a wrongful death action is statutory and does not exist at common law. See, e.g., Downtown Nursing Home, Inc. v. Pool, 375 So. 2d 465, 466 (Ala. 1979). The Alabama wrongful death statute, Ala. Code. § 6-5-410(a)(1975), is like no other in the United States.⁵ "In Alabama, only punitive damages are available in wrongful death actions, and these damages may be awarded against a defendant based on its negligent conduct." Alabama Power Co. v. Turner, 575 So.2d 551, 556 (Ala. 1991), cert. denied, 500 U.S. 953 (1991).⁶ The statute does not allow for compensatory damages or consideration of the decedent's losses. See, e.g, Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1065 (11th Cir. 2010); ALA. PATTERN JURY INST. 11.28. The focus of a wrongful death claim under Alabama law is on the defendants' conduct. See, e.g., Atkins v. Lee, 603 So. 2d 937, 943 (Ala. 1992)(quoting ALA. PATTERN JURY INST. 11.28).The Alabama legislature and courts have made clear: the statute is intended to protect lives by imposing damages on tortfeasors causing death. See, e.g., Hatas v. Partin, 175 So. 2d 759, 761 (Ala. 1965).⁷ By making a wrongful death "expensive," Alabama seeks to deter similar tortious conduct. See Louis Pizitz Dry Goods Co. v. Yeldell, 274 U.S. 112, 116 (1927)(explaining that the Alabama statute was an "attempt to preserve human life by making homicide expensive"); Tillis Trucking Co., Inc. v. Moses, 748 So.2d 874, 889 (Ala. 1999)(explaining that the goal of the statute is "preservation of life because of the enormity of the wrong, the uniqueness of the injury, and the finality of death")(citation omitted)).

"In calculating a damage award, an Alabama Wrongful Death Act jury is instructed to consider: (1) the finality of death, (2) the propriety of punishing the defendant, (3) whether the defendant could have prevented the victim's death, (4) how difficult it would have been for the defendant to have prevented the death, and (5) the public's interest in deterring others from engaging in conduct like the defendant's." Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1065 (11th Cir. 2010)(citing Tillis Trucking, 748 So.2d at 889). "Because the policy of [Alabama] is to regard human life as being beyond measure in terms of dollars, the jury must disregard the decedent's wealth or lack of wealth, it must disregard the decedent's potential for accumulating great wealth or lack of potential to accumulate wealth; and it must disregard his or her talents and education, or lack of them, as well as his or her station in life." Campbell v. Williams, 638 So.2d 804, 811 (Ala. 1994).

The statute and its punitive scheme date back to the late 1800s.⁸ See Louis Pizitz Dry Goods Co., Inc. v. Yeldell, 274 U.S. 112, 114 (1927)("The legislation now challenged has been on the statute books of Alabama in essentially its present form since 1872."); Savannah & M.R. Co. v. Shearer, 58 Ala. 672, 680 (1877). The United States Supreme Court first considered its constitutionality in 1927. In Louis Pizitz Dry Goods Co., Inc. v. Yeldell, the defendant challenged the statute's constitutionality under the Fourteenth Amendment, claiming it was "unreasonably oppressive, arbitrary, unjust, violative of the fundamental conceptions of fair play...." 274 U.S. 112, 114 (1927)(quotation marks omitted). The main issue was whether an employer could be vicariously liable under the statute. Id. at 113-14. The Court recognized the statute's unique character: "This statute authorizes the recovery of damages from either a principal or an agent, in such amount as the jury may assess, for wrongful act or negligence causing death...the damages, which may be punitive even though the act complained of involved no element of recklessness, malice, or willfulness, may be assessed against the employer who, as here, is personally without fault." Id.

Nonetheless, the Court found that imposing "punitive" damages for mere negligence was not per se unconstitutional:

As interpreted by the state court, the aim of the present statute is to strike at the evil of the negligent destruction of human life by imposing liability, regardless of fault, upon those who are in some substantial measure in a position to prevent it. We cannot say that it is beyond the power of a Legislature...to attempt to preserve human life by making homicide expensive.

Id. at 116. The Court noted that "[t]he distinction between punitive and compensatory damages [was] a modern refinement." Id. at 116.⁹ The Court ultimately upheld the statute to be constitutional, despite its unique nature. Id. at 116. The Supreme Court has not revisited Louis Pizitz since. It remains good law.¹⁰

The Alabama statute has remained virtually unchanged.¹¹ The Alabama Legislature has declined to alter its unique character, even during tort reform efforts in the late 1980s and 1990s.¹² The Alabama Supreme Court has continually upheld the statute as constitutional.¹³

II. Appellate Review of Punitive Damages in Alabama

Like other punitive damage awards in Alabama, jury verdicts in wrongful death cases are subject to a post-verdict review. See, e.g., Lemond Const. Co. v. Wheeler, 669 So.2d 855, 857, 862-63 (Ala. 1995). Alabama juries are given considerable discretion in fashioning punitive damage awards. See, e.g., Green Oil Co. v. Hornsby, 539 So.2d 218, 222 (Ala. 1989).¹⁴ Trial judges, however, are required to review punitive damage awards to determine if they are "excessive as a matter of law or [are] the result of passion, bias, corruption, or other improper motive." Lemond, 669 So.2d at 862. See also Hammond v. City of Gadsden, 493 So.2d 1374, 1378-79 (Ala. 1986). Trial judges must "reflect in the record the reasons for interfering with a jury verdict, or refusing to do so, on grounds of excessiveness of the damages." Hammond, 493 So.2d at 1379. The trial judge should ensure that the punitive damages award is tailored to both the wrongful act and the tortfeasor. Green Oil Co., 539 So.2d at 223. Punitive damages "must not exceed an amount that will accomplish society's goals of punishment and deterrence." Id. at 222.

The Alabama Supreme Court has enumerated a non-exhaustive list of factors trial judges should consider during post-verdict review:

1) The reasonable relationship between the punitive damages award and the harm actually done as well as the harm that could have resulted from the defendant's conduct;

2) The degree of reprehensibility of the defendant's conduct, including the duration of the conduct, the defendant's degree of awareness of its hazardousness, any concealment or the potential hazard, and the frequency of similar past conduct;

3) The profitability of the wrongful conduct and the punitive damages' effect on this profit;

4) The financial position of the defendant;¹⁵

5) All the costs of litigation, so as to encourage plaintiffs to bring wrongdoers to trial;

6) Whether criminal sanctions have been imposed and would mitigate the award;

7) Whether other civil damages have been awarded against the defendant for the same conduct and would mitigate the punitive damages award.

Hammond, 493 So.2d at 1379; Green Oil Co., 539 So.2d at 223-24. Appellate courts are then expected to review the jury verdict and the trial judge's decision on the appropriateness of the award. See Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 20-21 (1991)("By its review of punitive awards, the Alabama Supreme Court provides an additional check on the jury's or trial court's discretion.").

In 1991, the Supreme Court approved Alabama's scheme of post-verdict review as providing adequate due process under the Constitution. Haslip, 499 U.S. at 21-23.¹⁶ See also BMW of North America, Inc. v. Gore, 517 U.S. 559, 567 (1996)("The court's excessiveness inquiry applied the factors articulated in Green Oil Co. v. Hornsby, 539 So.2d 218, 223-224 (Ala.1989), and approved in Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 21-22, 111 S.Ct. 1032, 1045-1046, 113 L.Ed.2d 1 (1991). 646 So.2d, at 624-625."). The Supreme Court found that the post-verdict review by the trial and appellate courts provided a "full panoply of [] procedural protections." Haslip, 499 U.S. at 23. While the Court did not talk specifically about Alabama's wrongful death statute, and that statute was not involved in the case, Haslip did cite positively to Louis Pizitz and did nothing to disturb it. Haslip, 499 U.S. at 14, 15, 17. The defendants argue that Supreme Court precedent after Haslip has rendered the wrongful death statute unconstitutional.

III. Facial Constitutional Challenge Legal Standard

There are no pertinent facts. This motion involves a purely legal question: whether...