Woodhams v. GlaxoSmithKline Consumer Healthcare Holdings LLC.

Background

Timothy A. Woodhams and other named plaintiffs alleged that Pfizer marketed and distributed Regular Strength and Maximum Strength Robitussin cough syrup in a misleading way. Both products contain dextromethorphan hydrobromide and guaifenesin. A 10-milliliter dose of Regular Strength Robitussin contains 20 milligrams of dextromethorphan hydrobromide and 200 milligrams of guaifenesin. A 10-milliliter dose of Maximum Strength Robitussin contains 10 milligrams of dextromethorphan hydrobromide and 200 milligrams of guaifenesin, although the recommended adult dose of the Maximum Strength product is 20 milliliters. Plaintiffs alleged that Pfizer charged more for the Maximum Strength product even though a four-ounce bottle contained less total active ingredient than a four-ounce bottle of Regular Strength Robitussin.

The plaintiffs asserted consumer-protection and unjust-enrichment claims under the laws of their respective states and under the laws of all fifty states and the District of Columbia on behalf of a proposed nationwide class. Pfizer moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally sufficient claim, and separately moved under Rule 12(f) to strike the nationwide class allegations. Plaintiff Hoaglund had voluntarily dismissed his claims before this opinion.

Motion to Dismiss Claims for States Without Named-Plaintiff Purchases

Pfizer argued that claims based on the laws of states where no named plaintiff purchased Maximum Strength Robitussin should be dismissed. The court rejected that argument at the pleading stage. It explained that the named plaintiffs sought to assert claims for themselves under the laws of the states where they purchased the product, while the claims under other states’ laws were asserted only on behalf of proposed class members. Whether differences among state laws defeated class certification was a question concerning whether common issues would predominate under Rule 23(b)(3), not a basis for dismissing the claims at this stage.

The court therefore denied Pfizer’s motion to dismiss on this ground.

Consumer-Protection Claims

The court held that the plaintiffs plausibly alleged that the “Maximum Strength” label could mislead a reasonable consumer. Although a recommended dose of Maximum Strength Robitussin contains more active ingredients than a recommended dose of Regular Strength Robitussin, that is because the recommended dose is twice as large. The court concluded that a reasonable consumer might not expect a product to be called “Maximum Strength” and priced higher if receiving more active ingredients required consuming more of the product.

The court also rejected Pfizer’s argument that the dosage and ingredient information on each label prevented any deception as a matter of law. According to the court, a consumer would need to compare both products’ labels and perform calculations involving different dosage volumes to determine the relevant differences. The court further declined to resolve at the dismissal stage whether the products purchased by plaintiffs carried a “See New Dosing” label, because that was a factual question.

The court also rejected Pfizer’s argument that federal drug regulations defeated the claims. The opinion stated that federal law required dosage information but did not require Pfizer to use the term “Maximum Strength,” and that federal law prohibited misleading labels. The court therefore allowed the consumer-protection claims to proceed generally.

The court dismissed de Clue’s consumer-protection claim under the Arkansas Deceptive Trade Practices Act because de Clue conceded that the claim required reliance and agreed that it should be dismissed. The court did not dismiss the remaining consumer-protection claims on the grounds raised in Pfizer’s motion.

Woodhams’s Michigan Consumer Protection Act Claim

Pfizer argued that a safe-harbor provision in the Michigan Consumer Protection Act protected its labeling conduct because the Food and Drug Administration regulates medication marketing and labeling. The court rejected that argument. It explained that the safe harbor applies to conduct specifically authorized by a regulatory body, while the complaint plausibly alleged that the “Maximum Strength” label was misleading and federal law did not specifically authorize that term. Woodhams’s Michigan consumer-protection claim therefore survived the motion to dismiss.

Unjust-Enrichment Claims

The court dismissed the unjust-enrichment claims under Colorado, Florida, and New York law because those claims were based on the same conduct as the plaintiffs’ consumer-protection claims. The court concluded that, under the circumstances alleged, pleading those unjust-enrichment theories in the alternative did not allow them to proceed.

The court also dismissed Woodhams’s Michigan unjust-enrichment claim. Although Michigan law sometimes permits an unjust-enrichment claim when a benefit is indirectly conferred, the cases discussed by the court involved some direct interaction between the parties. Woodhams alleged no direct interaction with Pfizer, which the court found to be a remote manufacturer relationship.

The conclusion identifies the dismissed unjust-enrichment claims as those of Covello, de Clue, Hinz, Paul, and Woodhams. The motion was denied as to the remaining claims.

Nationwide Class Allegations

The court denied Pfizer’s motion to strike the nationwide class allegations. It stated that motions to strike class allegations are generally disfavored and often premature because the requirements for class certification are better evaluated under Rule 23 on a developed factual record. The court found that the limited circumstances supporting an early decision to strike the allegations were not present.

The denial was without prejudice to Pfizer’s raising its arguments in opposition to a later motion for class certification.

Disposition

The court granted Pfizer’s motion to dismiss in part and denied it in part. It dismissed the specified unjust-enrichment claims and de Clue’s Arkansas consumer-protection claim, while allowing the remaining claims to proceed. It denied Pfizer’s motion to strike the nationwide class allegations. Pfizer was ordered to file an answer to the remaining claims within 21 days after the opinion and order.