A panel of federal judges has again rejected a request to centralize and consolidate all OxyElite pro and Jack3D liver damage lawsuits, indicating that there are still too many unique factors involved in each case to justify establishing a federal multidistrict litigation (MDL).
The U.S. Judicial Panel on Multidistrict Litigation (JMPL) issued an order denying transfer (PDF) on December 12, indicating that litigation over the recalled dietary supplements will continue to proceed without formal coordination.
This is the second time the panel has rejected a request by the manufacturer, USPLabs, to have cases filed in U.S. District Courts nationwide centralized before one judge to limit duplicative discovery, avoid inconsistent rulings and to serve the convenience of the parties, witnesses and the courts. A number of plaintiffs also supported consolidation at oral arguments before the U.S. JPML on December 4.
There are currently at least 16 separate product liability lawsuits filed in five different federal district courts by individuals who allege that they suffered liver damage or hepatitis after using OxyElite Pro or Jack3d. In some cases, plaintiffs indicate that they have required liver transplants due to the injuries.
The cases stem from an OxyElite Pro recall issued late last year, amid a spike in reports of liver injury and deaths among users of the dietary supplements.
“We previously determined that centralization was not warranted because the involved actions focused on different formulations of the products, alleged different health risks, and alleged distinct regulatory responses to the DMAA and aegeline products at issue,” wrote the panel in the order rejecting the MDL request. “We also determined that voluntary coordination among the parties and the involved judges was preferable to centralization, noting that two groups of plaintiffs’ counsel already were coordinating most of the personal injury actions, the District of Hawaii actions (which focused on aegeline) were being coordinated in that district, and the number of DMAA actions likely would remain limited. Most importantly, the record indicates that this litigation has not grown significantly outside the District of Hawaii, where coordination is well underway.”
OxyElite Pro Lawsuits
All of the complaints involve similar allegations that USPLabs used unsafe ingredients in its products and failed to adequately warn consumers of the risks of liver damage associated with OxyElite Pro and Jack3d supplements.
As additional cases continued to be filed, USPLabs filed another petition on September 11, pointing out that claims have been filed on behalf of more than 40 new plaintiffs since the panel originally rejected their first request.
However, the panel was not pursuaded to change their position. As a result, all of the lawsuits will proceed as individual claims, with the parties encouraged to informally coordinate discovery and scheduling matters.
OxyElite Pro Liver Damage
Concerns about the safety of OxyElite Pro first surfaced in September 2013, when Hawaii health officials noted a growing number of liver injury and hepatitis claims from consumers who had all the supplement, which 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 USPLabs to remove the product from the market on November 10, 2013.
The FDA and other health agencies determined that the weight supplement contained aegeline, an extract from the Bael tree, which is native to India and southeast Asia. The FDA ruled that the product was adulterated because aegeline is relatively untested and its side effects are unknown.
While most of the original OxyElite Pro liver injury cases were found in Hawaii, including several individuals who required liver transplants and at least one death linked to the supplement, a growing number of reports involving OxyElite Pro problems have surfaced throughout the contiguous United States as well.