Jon Campisi Apr. 15, 2014, 6:53am


A federal judicial body earlier this month denied a bid by the makers of the

OxyElite Pro and Jack3d sports supplements to consolidate and transfer a handful of products liability actions to the U.S. District Court in Philadelphia.

The U.S. Judicial Panel on Multidistrict Litigation on April 2 denied the move by USPlabs LLC to centralize the litigation, which at the time consisted of nine actions pending in six different federal courthouses across the country.

The lawsuits consist of both individual personal injury claims and false advertising class actions that were originally filed in Pennsylvania, Florida, California, Texas and Hawaii.

The lead defendant, a sports supplement manufacturer, sought to consolidate the nine lawsuits into a multidistrict litigation and transfer the cases to the Eastern District of Pennsylvania, or, alternatively, to the Western District of Texas.

GNC Holdings Inc., which is the retail partner of Dallas-based USPLabs, is located in Pittsburgh.

Court records show that 10 of the codefendants and one of the plaintiffs supported the petition to consolidate and transfer, while the plaintiffs in six other actions and four potential tag-along actions opposed centralizing nine actions, but supported some combination of separate MDLs.

Still, the plaintiffs in two other cases and defendant Natural Alternatives International Inc. opposed centralization in any form.

Records show that the defendants had argued centralization of the all the actions was warranted, notwithstanding the differences in the primary active ingredient in the products and the claims presented by the tort and false advertising actions, because all of the cases allege that the products are unsafe and rely on the same series of FDA actions to support their claims.

The defendants also contended that discovery and pretrial motions would likely overlap.

The plaintiffs in all the actions, in arguing against consolidation and centralization, asserted that the DMAA and aegeline formulations in the products are so dissimilar that they are akin to different drugs.

Media reports said that the defendants’ products have been linked to an outbreak of hepatitis.

The litigation contends that OxyElite Pro and Jack3d contained ingredients that were unsafe and “adulterated” under the FDA’s definition.

The two main substances at issue, aegeline and 1,3-dimethylamylamine, or DMAA, have reportedly been linked to illnesses and deaths.

News reports stated that last summer, USPlabs agreed to destroy more than $8 million in OxyElite Pro and Jack3d supplements that contained DMAA.

In a January memorandum, lawyers representing USPlabs urged the judicial panel to have any potential consolidated litigation overseen by Judge Eduardo C. Robreno, what the defense attorneys called an “experienced MDL jurist.”

In its ruling earlier this month, the judicial panel said it was not persuaded that centralization and consolidation was necessary either to assure the convenience of the parties and witnesses or for the “just and efficient conduct of this litigation.”

“On the present record, it appears that the different formulations of the products will not give rise to substantially overlapping discovery, particularly in light of the differences in the health risks alleged and the distinct regulatory responses to the DMAA and aegeline products,” the panel wrote. “Additionally, the three consumer class actions raise a unique threshold issue with respect to the alleged impact of a state court class settlement agreement reached in 2012.”

The panel also declined the plaintiffs’ invitation to establish three separate MDLs to compensate for the differences in the lawsuits.

“There are a limited number of actions and involved counsel, with two groups of plaintiffs’ counsel in three of the actions concerning DMAA indicated that the number of such actions would remain small since USPlabs’ inventory of DMAA products was destroyed in 2012,” the panel wrote. “Additionally, the record indicates that the actions alleging injury from aegeline already are being coordinated in the District of Hawaii.

“In the present circumstances, voluntary coordination among the parties and the involved judges is preferable to centralization,” the panel concluded. “We encourage the parties to employ various alternatives to transfer which may minimize the potential for duplicative discovery and/or inconsistent pretrial rulings.”

The defendants’ January memorandum had been filed by attorney Pamela J. Lormand, of the New Orleans firm Brewer & Lormand, and Angel A. Garganta, of the San Francisco office of Arnold & Porter.

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