Lawsuit Over Rexall Weight-Loss Product Revived

A product liability suit against Boca Raton, Fla.-based dietary supplements maker Rexall Sundown involving the death of a man who used its once popular weight-loss product Metab-O-LITE was reinstated Wednesday by the 4th District Court of Appeal.

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Rexall had won dismissal on the grounds that Palm Beach County, Fla., wasn't the proper venue for the lawsuit. But the panel, in an opinion written by Judge Carole Y. Taylor, unanimously reversed Palm Beach Circuit Judge Diana Lewis' dismissal. The appellate court said Rexall filed its motion to dismiss months too late and that Palm Beach County was the appropriate venue because the manufacture and distribution of the product occurred there and in Broward County, Fla.

The panel, however, upheld Judge Lewis' decision in the consolidated appeal to dismiss another, similar suit against the company. Chief Judge George A. Shahood and Judge Robert M. Gross concurred in both decisions.

The 4th DCA opinion in Gerri Lynn Fihe individually, as personal representative of the estate of John Fihe, et al v. Rexall Sundown Inc. et al, addressed the appeals of plaintiffs in two separate but similar cases, Gerri Lynn Fihe and Julie Louise Jamieson.

Fihe's attorney, Douglass Kreis of Aylstock Witkin Kreis & Overholtz in Pensacola, Fla., said, "We are pleased to have the dispute relating to the appropriate forum finally decided so that we may aggressively seek justice for the Fihe family, whose case has been unnecessarily delayed by the pretrial maneuvers of the ephedra manufacturer defendants."

Jamieson's attorney, Thomas F. Gonzalez of Beggs & Lane in Pensacola, said: "We thought we had a good case. We're disappointed and we're weighing our options."

Rexall Sundown's lawyer, Steven J. Rothman of Jones Foster Johnston & Stubbs in West Palm Beach, said: "I think the 4th District decision reinforces the ability of trial courts to send cases that accrue outside Florida back to their home states and not burden the court system and taxpayers of Florida."

No one answered repeated calls to the phone number listed on the Rexall Web site Wednesday.

EVIDENCE IN FLORIDA

Rexall Sundown was founded by South Florida businessman Carl DeSantis. It became a prominent nutritional supplement company in the 1990s. In 2000, Royal Numico, a Netherlands-based company that also owns General Nutrition Centers and Met-Rx, acquired Rexall Sundown for $1.8 billion. Numico sold Rexall to New York-based vitamin company NBTY in 2003 for $250 million.

Rexall Sundown started selling Metab-O-LITE in 1999 but ended production of ephedra products -- including Metab-O-LITE in 2003. In 2004, the Food and Drug Administration banned ephedra, used mainly in weight-loss products, and issued a consumer alert urging people not to buy or use ephedra products.

Fihe, a Kentucky resident, filed suit against Rexall Sundown after her husband, John, died of a heart attack in 2003. Jamieson, who lives in Michigan, sued Rexall Sundown after suffering a stroke. Both plaintiffs blamed Metab-O-LITE for causing the health problems.

The two suits named Rexall Sundown, a Florida corporation, d/b/a Richardson Labs Inc., RS Oldco, NBTY, Nutrition USA, Meijer, Meijer Cos. Ltd. and Meijer Distribution.

Fihe's complaint alleged wrongful death, strict liability, defective design and failure to warn, breach of express and implied warranties, negligence, deceit/fraud by concealment and suppression, and violation of Florida's Deceptive and Unfair Trade Practices Act.

Rexall Sundown filed motions to dismiss both cases on the grounds of forum non conveniens. The company argued its new corporate headquarters in Bohemia, N.Y., and the departure from South Florida of several former employees key to the suit made Palm Beach County the wrong place to try the case.

Judge Lewis dismissed both suits on the grounds that the actions should be brought in the plaintiffs' home states.

According to the 4th DCA opinion, Lewis said fact witnesses and medical records were located in the plaintiffs' home states. She also relied on Rexall Sundown's representation that it would produce its former employees for depositions in the foreign forums. The court also relied on Rexall Sundown's representations that all of its Metab-O-LITE-related documents had been placed onto CD-ROMs.

On Wednesday, the 4th DCA upheld Lewis' decision to grant Rexall Sundown's motion to dismiss the Jamieson case because its motion was timely. But the panel held that the company's motion to dismiss the Fihe case was too late, coming more than a year after the case was filed. That was well past the 60-day limit on such motions.

In addition, the panel said several factors favored Palm Beach County as the best place for the suit -- even though Rexall Sundown's corporate headquarters has since moved to New York and the plaintiffs and several people likely to be called as witnesses were not from South Florida.

"The liability evidence in this case appears to be mostly in Florida, where the product was researched, designed, manufactured and marketed," the court said. "Before its discontinuance, the product was exclusively manufactured at Rexall Sundown's manufacturing facility in Boca Raton. The product was packaged at a Rexall Sundown facility in Broward County. Rexall Sundown distributed the product throughout the United States from distribution facilities in Boca Raton. ... Advertising for the product was created by Rexall employees in Boca Raton. ... The label on the Metab-O-LITE bottle stated that it was 'distributed by Richardson Labs Inc., Boca Raton, Florida.' "

Ephedra, also called Ma huang, contains ephedrine, which was extensively promoted for its weight-loss benefits and to help enhance sports performance and increase energy.

But the FDA warned the stimulant can have potentially dangerous effects on the heart, according to an extensive review of evidence by the RAND Corp. The review found little evidence for effectiveness other than for short-term weight loss, as well as evidence suggesting safety risks.

Other recent studies have found that ephedra use raises blood pressure and otherwise stresses the circulatory system, effects that have been conclusively linked to significant and substantial adverse health effects like heart problems and strokes.




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