Saying an instruction to keep a pain relief patch stuck on the body for up to 12 hours is not the same thing as a promise the patch will provide maximum pain relief for 8 hours, a federal judge has peeled away an attempt to continue a class action lawsuit against Kroger over claims the supermarket giant misled buyers about the effectiveness of its lidocaine medicated pain patches.
On Oct. 21, U.S. District Judge Matthew F. Kennelly sided with Kroger in swatting down a motion for class certification brought by plaintiffs seeking to secure a payday from the company over the alleged false advertising claims.
The case dates to 2022, when attorney Spencer Sheehan filed suit in Chicago federal court against the Cincinnati-based Kroger Co.
The lawsuit centered on claims Kroger had misled consumers in the way it labeled its store-brand over-the-counter lidocaine adhesive patches.
The lawsuit took issue with the packaging allegedly promising the product would give users "Up to 8 Hours" of "Maximum Strength" pain relief. According to court documents, plaintiffs alleged Kroger made these claims about its products even though the company allegedly knew the patches would routinely peel off of users' skin in far less time, perhaps even within minutes of application.
The lawsuit was one of several similar lawsuits brought against prominent supermarkets, pharmacies and other sellers of over-the-counter health care products over similar marketing claims related to such patches, with an active ingredient of 4% lidocaine.
Other lawsuits were also filed roughly simultaneously against Walgreens and Walmart.
Those class actions are among hundreds of lawsuits Sheehan has filed in courts in Illinois and elsewhere in the country, all generally accusing retailers and the makers of food, beverages and other consumer products of mislabeling their products or false advertising.
Sheehan's tactics have drawn criticism and reprimands from judges in various courts. One federal judge called him a "wrecking ball" and others have criticized his novel theories of consumer deception.
Sheehan faces civil contempt proceedings in New York, as well as a lawsuit filed against him by Ashley Furniture for naming it as a defendant in a lawsuit that had nothing to do with the company.
Most recently, in federal court in Springfield, the makers of Ricola cough drops have asked a judge to make Sheehan pay at least $60,000 because he allegedly continued to pursue claims over ingredients in the lozenges he knew weren't accurate, saying the company shouldn't be allowed to market is cough drops as being "Made With Swiss Alpine Herbs."
In the pain patch case against Kroger, Judge Kennelly ruled in 2023 that the lawsuit could only proceed on the narrow claims concerning the length of time the path is maximally effective.
In that ruling, the judge also identified issued with the ability of the lead named plaintiff, Tiffany Agee, to continue in the case.
In response, Sheehan swapped out Agee for two other named plaintiffs, identified as Shannon Hunt and Lanette Johnson.
However, in the amended complaint, Hunt and Johnson could not prove they purchased the precise pain relief patches at the center of the class action.
Rather, they purchased from Kroger-owned Mariano's supermarkets lidocaine medicated pain patches whose labels explicitly make no such boasts concerning 8 hours of effectiveness.
Instead, the product's label instructs users to keep the patch on their body for up to 12 hours.
Sheehan attempted to argue the legal claims related to the labels should be treated the same by the courts, since those products are also allegedly prone to peel off of human skin far sooner than 12 hours.
Kennelly, however, said the differences between the two labels likely doomes Sheehan's attempt to move the case forward as a class action.
"In short, the plaintiffs did not see or receive the key misrepresentations alleged in the amended complaint. As the Court sees it, any claims they might have brought are not included in the amended complaint.
"A complaint that asserts claim A cannot be the basis to certify a class of plaintiffs that cannot assert claim A and instead can assert only claim B," Kennelly wrote.
The case remains pending.
Kroger is represented in the action by attorneys Diane Webster, Avanti Bakane and Kirsten Gough, of the firm of Gordon Rees Scully Mansukhani LLP, of Chicago.
John O'Brien contributed to this report.