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January 22, 2013

2 Min Read
LG Sciences Can't Sue FDA Officer

OHIO A panel of federal appeals judges has ruled LG Sciences, LLC is barred from suing a compliance officer with the U.S. Food and Drug Administration who had verified a forfeiture complaint against more than 26,000 bottles of products belonging to the sports supplements company.

LG Sciences is precluded from pursuing its "Bivens" action due to "claim preclusion", wrote Circuit Judge Jeffrey Sutton with the U.S. Court of Appeals for the Sixth Circuit. Claim preclusion is a legal doctrine that prohibits a lawsuit that could have been brought in an earlier case.

The appeal was brought after a federal district court determined LG Sciences was precluded from bringing the complaint against FDA compliance officer Judith Putz because the company had earlier entered into a consent decree with the government agency.

The dispute dates back to April 2008 when FDA filed a forfeiture complaint against LG Sciences' products and U.S. Marshals seized them from the company's headquarters in Michigan. FDA had declared lab tests showed the bodybuilding products worth $1.3 million contained one or more unapproved food additives and/or new dietary ingredients and lacked scientific support for safe use.

LG Sciences opposed the seizure and filed a counterclaim but eventually entered into a consent decree, promising to destroy the products under FDA's supervision, Sutton explained. LG Sciences agreed to pay for FDA monitoring and pay a bond to guarantee its compliance but otherwise denied allegations in the government's complaint, the judge observed.

Two years later, LG filed the Bivens claim against Putz, claiming she conspired with other FDA officials to falsify information in the forfeiture complaint, violating the company's Fourth Amendment rights. Bivens is a 1971 decision from the U.S. Supreme Court that has been interpreted to allow for a cause of action against federal employees for constitutional violations.

LG Sciences "had the chance to litigate whether the forfeiture complaint was based on false information in the first action," Sutton wrote. "It instead opted to deal away its right to litigate by signing a consent decree."

The company could not be immediately reached Tuesday to comment on the appeals decision.



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