Dallas-based USPlabs is seeking to transfer the lawsuits before a single judge in the U.S. District Court for the Eastern District of Pennsylvania, or alternatively, the U.S. District Court for the Western District of Texas.

Josh Long, Associate editorial director, Natural Products Insider

March 4, 2014

4 Min Read
USPlabs Moves to Consolidate OxyElite Pro, Jack3d Lawsuits

SAN DIEGO—USPlabs, LLC, the sports supplements manufacturer whose OxyElite Pro has been linked to an outbreak of hepatitis, is seeking to consolidate nine federal lawsuits filed against the company in a move that is being contested.  

The United States Judicial Panel on Multidistrict Litigation (MDL Panel) in San Diego is scheduled to consider USPlabs' request on March 27.  

The lawsuits are pending against USPlabs in California, Florida, Hawaii, Pennsylvania and Texas.

In six product liability lawsuits and three proposed class-action complaints, plaintiffs allege USPlabs' supplements, OxyElite Pro and Jack3d, "contained unsafe ingredient(s) and are 'adulterated'" under FDA's definition, the company noted in a Jan. 13 filing with the MDL Panel.

At issue: the safety of aegeline and 1, 3-dimethylamylamine (DMAA), two substances that have been linked to fatalities and illnesses.

Dallas-based USPlabs is seeking to transfer the lawsuits before a single judge in the U.S. District Court for the Eastern District of Pennsylvania, or alternatively, the U.S. District Court for the Western District of Texas. USPlabs' retail partner, GNC Holdings Inc., and a co-defendant in a number of lawsuits, is based in Pittsburg.

One of the nine lawsuits was filed in the Southern District of California by 18 different personal injury plaintiffs who reside in 14 states, according to USPlabs' filing.

Commenting on the legal question of whether OxyElite Pro and Jack3d caused the alleged injuries, USPlabs argued "transfer to a single district will be convenient for the parties and witnesses and will promote the just and efficient conduct of the litigation; and (iv) absent transfer and coordination, the parties and courts will face the burden and expense of needlessly duplicative discovery and pretrial proceedings and possible inconsistent pretrial rulings."

Marler Clark, a law firm representing one of the plaintiffs in Hawaii who allegedly suffered liver damage from taking OxyElite Pro, opposed USPlabs' motion for consolidation. Hawaii is the proper venue to litigate cases brought against USPlabs for liver injuries due to ingestion of OxyElite Pro that contained aegeline, according to the firm.

"It would be impossible to conduct discovery into the OxyElite aegeline hepatic injury cases without focusing on Hawaii. Hawaii has the most identified cases and plaintiffs and represents a natural locus for organizing litigation involving the liver injury lawsuits," attorney Bruce Clark wrote in court papers last month. "There is little in common between the DMAA cases and the aegeline cases apart from USP products being a vehicle of injury."

OxyElite Pro has been linked to an outbreak of hepatitis, with most of the victims residing in Hawaii. The outbreak resulted in one death, required two liver transplants and caused dozens of other illnesses, according to health officials. After receiving a letter from FDA that the ingredient aegeline was not proven to be safe, USPlabs destroyed its inventory of OxyElite Pro supplements that contained the substance. Daniel Fabricant, Ph.D., director of FDA's division of dietary supplement programs, indicated last year that the products were worth USD $22 million.

FDA also has raised health concerns over DMAA, a stimulant the agency reported has been linked to more than 100 deaths and illnesses. Last summer, USPlabs agreed to destroy more than $8 million in Jack3d and OxyElite Pro supplements that contained DMAA.

The lawsuits against USPlabs are pending in the Southern District of California, Northern District of Florida, Southern District of Florida, District of Hawaii, Eastern District of Pennsylvania and the Western District of Texas.

USPlabs noted the cases "are in the preliminary stages of litigation" and at least five other lawsuits are pending in state courts in California, New York, New Jersey, Pennsylvania and Texas.

Last year, one of the nine federal cases above—a wrongful death lawsuit that was filed against USPlabs on behalf of deceased soldier Michael Sparling who ingested Jack3d—was transferred from California to the Western District of Texas in El Paso, some 600 miles from USPlabs' headquarters. In the lawsuit, USPlabs' co-defendant GNC claimed the soldier's "negligent," "careless" and "reckless" behavior contributed to his death.

Despite adverse publicity, lawsuits and regulatory actions, USPlabs has consistently proclaimed that its products are safe. The company previously said it removed DMAA and aegeline from its products for business reasons.

About the Author(s)

Josh Long

Associate editorial director, Natural Products Insider, Informa Markets Health and Nutrition

Josh Long directs the online news, feature and op-ed coverage at Natural Products Insider, which targets the health and wellness industry. He has been reporting on developments in the dietary supplement industry for over a decade, with a focus on regulatory issues, including at the Food and Drug Administration.

He has moderated and/or presented at industry trade shows, including SupplySide East, SupplySide West, Natural Products Expo West, NBJ Summit and the annual Dietary Supplement Regulatory Summit.

Connect with Josh on LinkedIn and ping him with story ideas at [email protected]

Education and previous experience

Josh majored in journalism and graduated from Arizona State University the same year "Jake the Snake" Plummer led the Sun Devils to the Rose Bowl against the Ohio State Buckeyes. He also holds a J.D. from the University of Wyoming College of Law, was admitted in 2008 to practice law in the state of Colorado and spent a year clerking for a state district court judge.

Over more than a quarter century, he’s written on various topics for newspapers and business-to-business publications – from the Yavapai in Arizona and a controversial plan for a nuclear-waste incinerator in Idaho to nuanced issues, including FDA enforcement of the Dietary Supplement Health and Education Act of 1994 (DSHEA).

Since the late 1990s, his articles have been published in a variety of media, including but not limited to, the Cape Cod Times (in Massachusetts), Sedona Red Rock News (in Arizona), Denver Post (in Colorado), Casper Star-Tribune (in Wyoming), now-defunct Jackson Hole Guide (in Wyoming), Colorado Lawyer (published by the Colorado Bar Association) and Nutrition Business Journal.

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