Motion Filed to Centralize OxyElite Pro Lawsuits in MDL
In response to a growing number of OxyElite Pro lawsuits filed nationwide by former users of the dietary supplement who have developed liver damage, USPLabs has filed a motion to consolidate and centralize the federal litigation before one judge for coordinated pretrial proceedings.
USPLabs was forced to issue a recall of OxyElite Pro in November 2013, following reports of hepatitis, liver injury and liver failure associated with use of the dietary supplement.
At least nine different product liability lawsuits have already been filed against USPLabs, including at least three claims seeking class action status and individual lawsuits on behalf of 30 different plaintiffs. The cases are currently pending in seven different U.S. District Courts throughout the federal court system.
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In a Motion (PDF) filed on January 13, USPLabs has asked the U.S. Judicial Panel on Multidistrict Litigation (JPML) to transfer all lawsuits filed on behalf of former users of OxyElite Pro or Jack3d, a similar dietary supplement, to the Eastern District of Pennsylvania for coordinated handling as part of an MDL, or Multi-District Litigation.
The manufacturer indicates that both OxyElite Pro lawsuits and Jack3d lawsuits should be handled by one judge, since the cases all involve common issues of fact. The cases all allege that the dietary supplements contain unsafe ingredients, including Aegeline and 1,3-dimethylamylamine (DMAA).
At least two plaintiffs, Michael Campos and Jennifer Southwick, have already filed a Response (PDF) in opposition to the consolidation request, indicating that there are currently too few cases to warrant centralization as part of an OxyElite Pro MDL. The plaintiffs also indicate that trying to lump together the consumer class action lawsuits with individual personal injury lawsuits is inappropriate, and was only requested by the manufacturer in an attempt to make the case count look larger.
“Moreover, the parties and witnesses will be completely different with almost no overlap,” the plaintiffs’ motion notes. “While the personal injury cases will require witnesses to testify about the physical effect of the USP’s products, the consumer class actions need no such testimony. In fact, such testimony will only complicate our case because it could result in purported ‘individual issues’ of injury that could destroy a class action.”
OxyElite Pro Recall
Concerns about the safety of OxyElite Pro began to surface in September 2013, when Hawaii health officials noted a growing number of claims of liver injury and hepatitis from consumers who had all used OxyElite Pro, a supplement that is designed to help users put on muscle mass.
After nearly 60 cases of OxyElite Pro liver damage were identified by state and federal agencies, the FDA forced an USPLabs to remove the product from the market on November 10.
Following an investigation by the FDA and other health agencies, it was determined that the weight supplement contains aegeline, an extract from the Bael tree, which is native to India and southeast Asia. The agency determined that the product was adulterated because aegeline is relatively untested and its side effects are unknown.
Most of the OxyElite Pro liver injury cases identified to date have been found in Hawaii, including several individuals who required liver transplants and at least one death linked to the supplement. However, since the recall, a growing number of reports involving OxyElite Pro problems have surfaced throughout the contiguous United States.
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