Stevens v. Walgreen, Co.

Background

Walgreen Co. sold four lidocaine-patch products. Their packaging described some patches as a “stay-put flexible patch,” stated that the patch was “easy to apply & remove,” and directed customers to “[u]se one patch for up to 12 hours.” Some varieties were labeled “maximum strength.” The patches listed lidocaine 4.0% as the active ingredient.

Delanator Stevens alleged that the patches did not reliably remain attached for 12 hours, were not flexible enough to withstand activities such as walking, stretching, and sleeping, and did not continuously relieve pain after detaching. He also alleged that the “maximum strength” patches did not contain the maximum amount of lidocaine available in patch form and were not superior or equivalent in effectiveness to other lidocaine patches.

Stevens asserted claims under Sections 349 and 350 of New York’s General Business Law, New York’s express and implied warranty provisions, and the federal Magnuson-Moss Warranty Act. Walgreen Co. moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which permits dismissal when a complaint does not state enough facts for a legally plausible claim. Walgreen Co. also challenged the request for injunctive relief based on lack of standing, but Stevens abandoned that request.

“Stay-Put Flexible” and “Up to 12 Hours” Claims

The court held that Stevens plausibly alleged that a reasonable consumer could be misled by the combination of the “stay-put flexible” description and the instruction to use one patch for up to 12 hours. At the motion-to-dismiss stage, the allegations supported an inference that consumers could expect the patches to remain attached, withstand regular activities, and continue providing pain relief during that period.

The court therefore allowed the New York deceptive-practices and false-advertising claims under General Business Law Sections 349 and 350 to proceed. It also allowed the express-warranty claims to proceed. The court concluded that the packaging’s descriptions and instructions could plausibly amount to promises or descriptions forming part of the basis of the purchase, and that Stevens plausibly alleged the patches did not meet those representations.

The court likewise allowed the Magnuson-Moss Warranty Act claims concerning these representations to proceed. It found the combined “stay-put flexible” and “up to 12 hours” language could plausibly constitute a written warranty promising a specified level of performance over a specified period.

“Maximum Strength” Claims

The court held that Stevens plausibly alleged that reasonable consumers could understand “maximum strength” to mean that the patches contained and delivered the maximum amount of lidocaine available in patch form. The complaint alleged that prescription-strength patches contained 5% lidocaine, while Walgreen Co.’s patches contained 4%, creating a factual dispute that was not appropriate to resolve on a motion to dismiss.

The court also found it plausible that consumers would expect “maximum strength” patches to contain more lidocaine than Walgreen Co.’s non-maximum-strength patches. The complaint alleged that both varieties contained 360 milligrams of lidocaine per patch. Based on those allegations, the court allowed the Sections 349 and 350 claims and the express-warranty claims concerning “maximum strength” to proceed.

The court dismissed the Magnuson-Moss Warranty Act claim based on “maximum strength.” It reasoned that the phrase did not promise that the product would meet a specified level of performance over a specified period, as that federal statute requires. The court also stated that allegations that the patches were not superior or equivalent in effectiveness did not state a claim because “maximum strength” referred to the strength of the medication, not its effectiveness or results.

Other Claims and Disposition

Stevens abandoned his request for injunctive relief, and the court dismissed that relief. He also abandoned his implied-warranty claim for fitness for a particular purpose, and the court dismissed that claim. The opinion’s general statement that the claims survived except as otherwise noted indicates that the remaining claims, including the implied-warranty-of-merchantability claim, were not dismissed.

The court concluded: “Defendant’s motion to dismiss the complaint is GRANTED in part and DENIED in part.”