| Psychonaught [Public domain]
CHICAGO — A federal judge has again rejected pharmaceutical maker Pfizer’s request to end a potential consumer fraud class action over the labeling of its Robitussin Maximum Strength cough and cold medicine.
In a 2018 lawsuit, Karmel Al Haj filed a class action complaint, accusing Pfizer Inc. of allegedly deceptively charging more for maximum strength Robitussin cough syrup than the regular product, alleging the maximum strength product actually has a lower concentration of active ingredients.
In an opinion issued July 16, U.S. District Judge Gary Feinerman denied Pfizer’s motion to end the lawsuit quickly through summary judgment.
Elizabeth Fegan | Hagens Berman Sobol Shapiro
The judge also denied for now, Al Haj’s request to certify the case as a class action.
Pfizer argued summary judgment was appropriate because Al Haj should have known the contents of the Robitussin she bought, as the packaging included a “See New Dosing” alert on the box, as well as an explanation of the term “Maximum Strength."
The judge disagreed, however.
“Pfizer’s contention fails to persuade, at least on summary judgment,” Feinerman wrote. “The consumer would not have known that Maximum Strength Robitussin had a lower concentration of active ingredients than Regular Strength Robitussin unless she calculated and compared each product’s concentration,” which Feinerman said is an unreasonable expectation.
“Using fine-print text to obliquely walk back a prominent claim on the front of the box — particularly absent other product features that contextualize that claim-- generally does not preclude a jury finding that the front side claim was deceptive,” Feinerman said.
Pfizer said nothing on its packaging was false, but Feinerman explained deceptions by innuendo are no less actionable, writing “Pfizer invited consumers viewing both products to assume that a more expensive bottle of Maximum Strength Robitussin had a greater concentration of active ingredients than the bottle of Regular Strength Robitussin.”
Feinerman wrote a jury should decide whether the packaging was misleading, and also that a jury could determine Al Haj suffered an actual loss since she “has adduced evidence that she could have paid less per active ingredient by purchasing regular strength instead of Maximum Strength Robitussin.” On similar grounds, he said a jury could conclude Pfizer’s advertising tricked Al Haj into buying, and therefore overpaying, for a specific product.
Feinerman said both Al Haj's claims for consumer fraud and unjust enrichment can proceed.
However, the judge said the more discussion was needed before allowing Al Haj to continue as the appropriate representative of a class of additional plaintiffs.
Last year, Feinerman granted Pfizer’s motion to dismiss Al Haj’s former co-plaintiff, Timothy Woodhams, for lack of personal jurisdiction.
Also in 2018, Feinerman said Pfizer couldn’t avoid having the issue tried in Chicago just because some potential class members don’t have a connection to Illinois.
Al Haj and the putative class are represented in the case by attorneys Elizabeth A. Fegan, Steve W. Berman, Daniel J. Kurowski and Emily Rees Brown, of Hagens Berman Sobol Shapiro LLP in Chicago.
Pfizer is represented by attorneys Gregory S. Bailey, John H. Beisner, Jessica D. Miller and Katherine F. Morgan, of Skadden Arps Slate Meagher & Flom LLP in Chicago and in Washington, D.C.