PORTLAND, Ore. — Johnson & Johnson has agreed to pay Oregon more than $400,000 to settle a lawsuit over a nearly decade-old buyback of defective Motrin pills.
The company discovered in 2008 that supplies of the painkiller manufactured in Puerto Rico failed to dissolve properly, which could lessen their effectiveness.
Instead of doing a recall, the company hired a contractor to send secret shoppers out to buy the bad product from store shelves. The tactic was revealed in 2009 after a concerned secret shopper alerted the Oregon Board of Pharmacy.
Former Oregon state Attorney General John Kroger sued the company and two subsidiaries in 2011, saying the buyback exposed consumers to defective medicine and violated the state’s unlawful trade practices act
Lawyers for Johnson & Johnson argued there was no proof the defective product was ever sold in Oregon.
A trial judge agreed, dismissing the lawsuit. The Oregon Court of Appeals reinstated the case in 2015.
Johnson & Johnson did not admit fault in the settlement that became public Wednesday. “All disputed facts in the action remain at issue,” Multnomah County Judge Christopher Marshall wrote.
Johnson & Johnson spokesman Marc Boston said in an email Thursday the company is “pleased to resolve the claims,” and there was never a health or safety risk.
The first phase of the buyback program occurred in early 2009, and it was designed to survey the amount of defective product on shelves. A larger buyback began that June, according to a summary of the case included in the appeals court opinion.
It said instructions to field employees stressed the program’s secretive nature and said there should be no mention of a recall.
“You should simply ‘act’ like a regular customer while making these purchases,” the instructions said.
“If asked, simply state that your employer is checking the distribution chain of this product and needs to have some of it purchased for the project.”