In an opinion and order issued Fed. 2, U.S. District Judge Rebecca R. Pallmeyer dismissed the complaint filed by plaintiffs Howard T. Baldwin and Jerry Van Norman against Glen Allen, Va.-based “specialty pharmaceutical” manufacturer Star Scientific. Baldwin, of Oak Park, filed his initial complaint in January 2014 claiming the company, which separately has been accused of bribing the former governor of Virginia, falsely marketed its Anatabloc supplement as a “wonder drug” for a variety of illnesses and conditions.
Baldwin and Van Norman, of Missouri, also named as defendants Rock Creek Pharmaceuticals, a Star Scientific subsidiary based in Gloucester, Mass., and GNC Holdings, which sells Anatabloc at GNC retail stores.
According to the complaint, the companies claimed Anatabloc is derived from compounds found in tobacco, tomatoes, potatoes and eggplant. But Baldwin alleged the problem with the product arises from the way the defendants marketed and portrayed Anatabloc, which they began selling online in 2011.
Pallmeyer dismissed Baldwin’s initial complaint without prejudice on Jan. 13, 2015, finding he had not “pleaded fraud with particularity.” Adding Van Norman, he filed an amended complaint on Feb. 10, 2015. Pallmeyer’s Feb. 2, 2016, opinion addressed the defendants’ motion to dismiss the amended complaint.
In that motion, the defendants again questioned the Federal Rule of Civil Procedure’s peculiarity requirements and said the complaint did not adequately allege the falsehoods the company stood accused of perpetuating. They also argued the breach of warranty claims don’t “allege the existence of any express warranty or that a breach of warranty was communicated to” the plaintiffs. Those failures also, they argued, undercut the unjust enrichment claim.
Pallmeyer notes that while the amended complaint relied heavily on mentions of a Johns Hopkins University study of Anatabloc and the supplement’s ability to treat or cure various diseases, the complaint did not allege the men saw or relied on those representations to inform their purchase. They both said they were interested in Anatabloc’s purported anti-inflammatory properties, as both had arthritis-like symptoms.
“Plaintiffs only have standing to bring claims related to their alleged injuries,” Pallmeyer wrote. “Although the amended complaint is an improvement upon Baldwin’s initial complaint, it suffers from some of the same deficiencies. …
“The Amended Complaint states, for example, that Baldwin viewed Star Scientific’s investor statements regarding Anatabloc’s ability to treat inflammation. It does not identify any specific investor statement, however, nor does it specify the content of these statements, or when or where Baldwin read them.”
Though the amended complaint contended the defendants used studies of questionable scientific value to promote Anatabloc, Pallmeyer said Baldwin and Van Norman failed to “identify scientific studies or other evidence showing that Anatabloc was ineffective at treating inflammation.”
Pallmeyer dismissed the entire amended complaint, though three counts were dismissed without prejudice, leaving Baldwin and Van Norman 21 days to file another amended complaint with respect to those claims.
Baldwin and Van Norman were represented by attorneys Elizabeth A. Fegan and Daniel J. Kurowski, of the firm of Hagens Berman Sobol Shapiro, of Oak Park, as well as Steve W. Berman, of the firm’s Seattle office.
The defendants were represented by Molly K. McGinley, John William Rotunno and Paul J. Walsen, of K&L Gates, of Chicago.
Aside from this action, Star Scientific allegedly enlisted the support of former Virginia Gov. Robert McDonnell and his wife, Maureen, to promote Anatabloc. In September 2014 a federal jury found the McDonnells guilty of accepting tens of thousands of dollars in gifts from Star Scientific’s chief executive officer. In January 2016 the U.S. Supreme Court announced it would consider the McDonnells’ appeal of their conviction.