Health Law

Tylenol recall expands

By Drew Falkenstein

So how does the principle of strict liability--i.e. liability without regard to fault--which is applicable in foodborne illness cases, apply to bottles of Tylenol that make people sick?  The answer:  very well.

For some background, Johnson & Johnson today expanded its recall of various Tylenol products, which, like many food items, are regulated by the FDA, due to potential contamination with a substance that produces a chemical odor that has made a bunch of people ill with gastrointestinal symptoms.  (see primer on strict liability). 

Despite some differences in the way the fifty states apply the doctrine, strict liability holds manufacturers of defective products liable to people injured by the product defect.  It's pretty simply applied in food cases.  A beef company that produces ground beef, or any meat, contaminated with E. coli O157:H7 is liable to the people who become ill because contaminated ground beef is defective.  Similarly, a restaurant that serves a meal that became contaminated with Salmonella because an infected foodworker prepared it is liable to the customer who then contracts the disease.  In both situations, it does not matter whether the defendant (i.e. the beef producer and the restaurant) was negligent.  Simply making and selling contaminated food makes the defendant liable. 

Tylenol, whether the bottle it is sold in or the indvidual pills themselves, that is contaminated with a substance that makes people ill is also defective.  Johnson and Johnson is strictly liable to the people who have become ill, as would be the company that made the pallets that were contaminated with the substance that has made people sick.  Both produced a defective product in the eyes of the law.

This concept sounds offensive to some people. But when you pause for a moment to think where the safety of our food and pharmaceutical supply might be without the media attention that these recalls and outbreaks have gotten, and without lawsuits that put the immense costs of illnesses and medical treatment squarely back in the food producer's hands, the concept begins to seem a little less grim.

Full post as published by Food Poison Blog on January 15, 2010 (boomark / email).