The Tylenol Mafia (39 page)

The relationship between Johnson & Johnson and PBWT began during World War II, when Robert Wood Johnson II was a “dollar-a-year man,” commissioned as a Colonel and then promoted to a brigadier general in the United States Army. At the time, Robert P. Patterson, Sr., the co-founder of Webb, Patterson & Hadley, which later became PBWT, was the under secretary of war. Since 1940, Patterson had been in charge of the war procurement program that Robert Wood Johnson II and other corporate titans managed as members of the War Production Board. Patterson was later appointed secretary of war in 1945. He returned to his private law practice in 1947.

Robert Patterson died on January 22, 1952 onboard American Airlines Flight 6780 when it crashed on approach to Newark Airport. He was returning from representing
Schrine
Theatres Inc., which had recently been convicted of engaging in numerous activities that violated anti-trust laws. Just hours before Patterson’s death, he had consented to a provision requiring
Schrine
to discontinue certain illegal monopolistic business practices.

At the time of Patterson’s death, the partnership between his law firm and Johnson & Johnson was already established and so was the link between PBWT and the U.S. District Court in the Southern District of New York. In 1930, President Herbert Hoover had appointed Patterson as a judge in the District Court for the Southern District of New York. In 1988, his son, Robert Patterson, Jr., became a judge in the U.S. District Court for the Southern District of New York.

PBWT did away with the Elsroth lawsuit less than three years after Diane Elsroth’s death. Conversely, Johnson & Johnson kept the 1982 Tylenol murders lawsuit out of court for almost nine years before it was settled. Elsroth’s lawsuit was heard in the U.S. District Court in New York, but John Elsroth had filed the complaint in a New York State Circuit Court. The case was then removed to the federal court on petition of the defendants on the basis of diversity, pursuant to CFR Title 28, Section 1332(a), (Diversity of citizenship; amount in controversy; costs), which states:

The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different States.

For the purposes of such “diversity” jurisdiction, a corporation is deemed to be a citizen of the state in which it is incorporated and the state where it maintains its principal place of business. Civil actions exceeding $75,000 in damages can be removed, at the request of the defendants only, to federal court, which is generally deemed a more favorable forum for corporate defendants. Nevertheless, civil actions exceeding millions of dollars are commonly heard in State courts. In fact, the 1982 Tylenol murders lawsuit, seeking about $50 million in damages, was filed by Illinois citizens against Johnson & Johnson, a New Jersey citizen, in the Illinois State Circuit Court in Cook County, yet J&J did not seek to remove it to a federal District Court.

The removal of Elsroth’s lawsuit to a federal court had gotten the case firmly on PBWT’s favorite hunting grounds. Johnson & Johnson and A&P believed that they would get a favorable ruling in the federal courthouse in the Southern District of New York. And they were right. Judge Goettel dismissed this case specifically to keep it from going before a jury.

Judge Goettel prefaced his ruling by saying, “We are mindful that, although recent Supreme Court decisions have revitalized the use of summary judgment - Rule 56 [summary judgment] remains a disfavored remedy in this circuit.” Unfortunately, the disdain he professed for summary judgment was not at all apparent when he granted summary judgment in favor of Johnson & Johnson and A&P, stating, “We are aware of this circuit’s preference for ruling on difficult legal issues only upon a full evidentiary record.” Yet with virtually no evidentiary record, Goettel ruled in favor of Johnson & Johnson and A&P anyway. In fact, he ruled on the basis of a completely false evidentiary record.

In this instance, wrote Goettel, “We have resolved all disputed factual issues in the plaintiff’s favor, as we suspect a sympathetic jury would do. To take this matter to trial and then set aside a jury’s verdict as a matter of law would seem less desirable than ruling on these legal issues as presented by the motion papers.”

Judge Goettel had determined and indeed suggested that a jury may have ruled in favor of Elsroth, in which case he had already predetermined that he would set aside that jury’s verdict. Rather than go through a public trial in which Goettel would not allow a ruling against Johnson & Johnson to stand, he put an end to the judicial process, thus keeping the evidence of yet another Tylenol murder hidden from the public.

In a decision soaked with hypocrisy, Judge Goettel wrote: “The emotions in this case are strong, making our decision today all the more difficult. Our task, however, is to serve as a dispassionate arbiter of the law, guided always by the legal principles that are its lifeblood while ever cognizant of the pillars that serve as its foundation: fairness, equity, and justice. An injustice has been done, but we think a second would be perpetrated were we to permit recovery against these defendants for a wrong they did not truly commit.”

Goettel concluded his ruling as follows:

The doctrine of strict products liability is built upon those same supports of fairness and equity, oftentimes lumped together under the heading of “public policy.”

As recognized by the New York Court of Appeals: Imposition of strict liability against a manufacturer rests largely on public policy. The justification for it is that the seller, by marketing his product, has undertaken a special responsibility toward members of the consuming public who may be injured by it. The public has a right to expect that sellers will stand behind their goods. Thus, the burden of accidental injuries caused by products intended for consumption has been placed upon those who market them, to be treated as a cost of production because manufacturers are best able to protect against defective products and bear the cost if they fail.

When reduced to its essentials, it can be seen that this case involves none of these concerns. We do not have here a failure by the manufacturer and retailer to stand behind the goods they market; we do not have an accidental injury caused by goods they have placed in the stream of commerce. We instead are presented fundamentally with the proposition that manufacturers and retailers should be held liable in damages, as a cost of doing business, for the criminal conduct of unknown third parties who misuse the manufacturer’s product in carrying out the misdeeds because the criminal cannot be held accountable.
 
Notwithstanding the grievous harm here inflicted, we think such a result is not contemplated by the law, nor is it consonant with sound notions of fairness, equity, and justice.

Goettel dismissed this case based on the false premise that there was no negligence on the part of Johnson & Johnson. He simply assumed that the Tylenol had been tampered with at the retail stores. Wasn’t a jury supposed to decide what the facts were in this case and their truth or untruth?

“We hold that preventing acts of tampering off the merchant’s premises by an unknown third party does not fall within the ambit of duties owed by a retailer to his or her customers,” said Goettel. The obvious flaw with this argument is that the tampering did not occur on the “merchant’s premises.” A jury would likely have reached the same conclusion that Westchester District Attorney, Carl Vergari, had reached, namely, that the cyanide-laced Tylenol capsules were put into the Tylenol bottles during the manufacturing process, before they were packaged and delivered to the local retail stores. In fact, a substantial portion of Americans believed that the 1986 tamperings had actually occurred at a Johnson & Johnson facility.

Following the 1986 Tylenol murder, consumers were not nearly as willing to accept the madman-in-the-retail-stores theory, as they had been in 1982. Market researcher George Rosenbaum said, “Virtually everyone” thought someone outside the Company was to blame for the 1982 Tylenol tampering incident. Following the 1986 tampering incident, however, J&J’s own research showed that 36 percent of the public thought the tampering came from within the company.”

Judge Goettel did a big favor for Johnson & Johnson by “concluding” that the tampering occurred at the retail store when in fact the evidence in its entirety showed that the tampering had occurred at a repackaging facility. Ultimately, the liability for the tampering that led to the death of Diane Elsroth rested with Johnson & Johnson. As the manufacturer of Tylenol, Johnson & Johnson was responsible for all aspects involved in the manufacturing, processing, packaging, labeling, and distribution of Tylenol. The decision made by Judge Goettel was not one that would have been made by a reasonable person with full access to the facts. So why did he make this ruling?

The poor outcome of both the 1982 and 1986 Tylenol murders investigations may be attributed to a judicial system that favors corporate interests over those of individuals, as in a corporatocracy.

The concept of corporatocracy is that corporations, to a significant extent, “own” or have massive power over governments, including those governments nominally elected by the people. Corporations exercise such power not by back-room conspiracies, but by their enormous, concentrated economic power and influence and by legal in-the-open mechanisms, via lobbyists, campaign contributions to office holders and candidates, and threats to leave the state or country for another country with less oversight and more subsidies. The system retains the superficial appearance of being a democratic republic, by relying on the long-standing faith of the people in the fair outcomes of democratic voting, legislative, judicial, and executive processes - but below the surface, it is a system of government without full and true representation of the people.

In many cases, former corporate executives are appointed to be powerful decision-makers within government institutions. They are often charged with the regulation of their former or future employers. Government employees who collude with corporations often accept high-ranking positions within corporations once they have demonstrated their commitment to serve the corporate interest. This corporatocracy works exceedingly well for the powerful elite who control corporate entities like Johnson & Johnson, but not so well for everyday, average people like the Januses,
Kellermans
,
McFarlands
, Princes, Reiners, and
Elsroths
.

The division between corporate and governmental interests is indiscernible, and there is an active revolving door between government agencies and the industries they are supposed to regulate. Kevin Donovan, the current vice president of Johnson & Johnson Worldwide Security, was handed that job after a 25-year career with the FBI. Donovan had been the assistant director of the FBI in charge of the New York office where he was responsible for leading 2,500 FBI agents and other FBI employees. During prior years, Donovan served as the special agent in charge of the Newark, New Jersey office of the FBI.

The man Donovan replaced as head of J&J security, Wayne Gilbert, had a 28-year career with the FBI. Gilbert joined J&J in 1993, after retiring as the assistant director for counterintelligence and counterterrorism. Gilbert had assignments in Detroit, Albany, Washington D.C., and Oklahoma City and was the special agent in charge of the Pittsburgh and Philadelphia field divisions. He worked for the FDA prior to serving with the FBI.

Russell
Deyo
, the current general counsel for Johnson & Johnson, was an assistant U.S. attorney in New Jersey for eight years prior to joining Johnson & Johnson in 1985. As the corporate secretary at the McNeil Consumer Products Company in 1991,
Deyo
was the man who signed the 1982 Tylenol murders settlement agreements. He then moved up the ladder to his current position, which pays him a salary and bonus of more than $8 million per year.

Two months after Arthur Hayes resigned his position as the commissioner of the FDA, he took a consulting job with Burson-Marsteller, the public relations firm for G.D. Searle, Monsanto, and Johnson & Johnson. Hayes was later appointed to executive and director positions at numerous companies in the pharmaceutical industry. In 1991, former McNeil Chairman Wayne Nelson appointed Hayes as the chief operating officer of Nelson Communications’ subsidiary,
MediScience
Associates. Nelson later appointed Hayes as
vice chairman and medical director of Nelson Communications
.

FDA appointees generally do very well when they leave the FDA for the private sector. FDA Deputy Commissioner, John Norris, left the FDA in 1988 and then served on several Boards of Directors of pharmaceutical companies and worked as a consultant for numerous companies, including Johnson & Johnson. FDA Deputy Commissioner, Mark Novitch, left the FDA to join the Upjohn Pharmaceutical Company in 1985 where he served in senior executive positions, including vice chairman of the Board of Directors, corporate executive vice president, and corporate senior vice president for scientific administration. He also served on the Boards of Directors of Guidant Corporation, a medical device company, and several large pharmaceutical companies, including Kos,
Neurogen
,
Alteon
, and
Calypte
Biomedical.

Frank Young, during his time as FDA commissioner, from August 1984 to December 1989, seemed to always support the financial interests of the pharmaceutical manufacturers. In February 1986, after the death of Diane Elsroth from cyanide-laced Tylenol, Young sided with the pharmaceutical industry by refusing to consider the elimination of unsealed capsules from the OTC market. Even when the poisonings from OTC capsules continued to mount, Young did not reconsider his position.