[author: Aaron Kase]
Who doesn’t remember the late-night TV commercials for Hydroxycut, the popular diet pill that bragged about being America’s number one weight loss supplement? Svelte characters like “Charlene from California” brag about losing “55 pounds fast with Hydroxycut” in the spots. Unfortunately, what Charlene and her fellow diet drug users didn’t realize is they may have been causing serious damage to their livers.
A class action lawsuit for deceptive practices filed against the supplement, manufactured by Iovate Health Sciences, settled this month for $23.5 million. The settlement does not include plaintiffs who may seek compensation because of injury or death.
The FDA issued a recall for Hydroxycut products in 2009, citing 23 reports of serious health problems including one death and at least one liver transplant. “Adverse events are rare, but exist,” Linda Katz, M.D., interim chief medical officer of FDA’s Center for Food Safety and Applied Nutrition, said at the time of the recall. “Consumers should consult a physician or other health care professional if they are experiencing symptoms possibly associated with these products.”
Iovate subsequently reissued Hydroxycut under the same name but without the offending ingredients.
The terms of the settlement award $25 or free Iovate merchandise worth up to $50 for anyone who purchased Hydroxycut products between May 9, 2006 and May 1, 2009. People seeking reimbursement for just one product don’t need a receipt; however proof of purchase is necessary for those who wish to be compensated for multiple units.
Any settlement money that isn’t doled out will be put aside in a fund for plaintiffs who bring additional litigation for injury or death.
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Severe Liver Damage
Jon "Mitch" Jackson
Class action was the way to go in the Hydroxycut lawsuit since there are many consumers potentially eligible for a small award, but the dollar amount is so low that few would bother to take Iovate to court on their own. “Like any lawsuit, class action lawsuits are brought from many reasons,” says Jon “Mitch” Jackson, a California personal injury attorney with the firm Jackson & Wilson. “These may include public policy violations, unsafe products, fraud and deception, injury and even loss of life. In this case, the class action lawsuit was basically premised upon a claim of ‘deceptive conduct’ by the manufacturer of the recalled Hydroxycut weight loss diet supplement.”
Essentially, the suit alleges that consumers were sold a false bill of goods, because they purchased the product with no expectation it could be harmful even though no long-term health studies had been conducted on it. “The plaintiffs argued that the manufacturer profited by selling a product that allegedly caused risk of severe liver injury. It was also alleged that no warnings were given to the consumer,” Jackson says. “The 2009 Food and Drug Administration recommendation that consumers not use Hydroxycut because of the risk of severe liver injury helped the plaintiffs with this aspect of the case.”
People who suffered injuries will have to pursue separate recourse, because their litigation will be much more complicated. “It’s one thing to show that adequate warnings were not given,” notes Jackson. “Either they were or they were not. Having said that, the burden of proof becomes much more difficult when you take the next step and argue that because of the inadequate warnings, people consumed the product and suffered personal injuries or worse, died.”
Should plaintiffs come forward seeking compensation for injury or death, Iovate could be be in for another big payout. “If injuries and deaths are out there,” the attorney says, “it would only take one or two jury verdicts to put the damages well in excess of the amounts paid out on the ‘deceptive conduct’ aspect of this case.”
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