Calchi v. GlaxoSmithKline Consumer Healthcare Holdings LLC
- Kenneth Karas
- 7:22-cv-01341
- U.S. District Court · Southern District of New York
- 4
In Calchi v. GlaxoSmithKline, Judge Karas dismissed Calchi’s claims without prejudice because federal law preempted them.
Nancy Calchi and the proposed consumer classes whose state consumer-protection and express-warranty claims were dismissed without prejudice; the order also affected the defendants named in the action, while Pfizer had previously been dismissed by stipulation.
What happened
Nancy Calchi sued GlaxoSmithKline Consumer Healthcare Holdings (US) LLC and GSK Consumer Health, Inc., claiming their dextromethorphan cough medicines were falsely labeled “Non-Drowsy.” She brought state consumer-protection claims and a breach-of-warranty claim for herself and proposed classes of consumers.
The court agreed with another Southern District of New York decision that the claims were preempted by the federal Food, Drug, and Cosmetic Act. It dismissed all of Calchi’s claims without prejudice, meaning she could try to replead them.
Judge Kenneth M. Karas gave Calchi 30 days to file an amended complaint addressing the identified deficiencies. The order said the amended complaint would replace the earlier complaints and that failing to file on time might result in dismissal of the action with prejudice.
The detailed version
- Calchi v. GlaxoSmithKline Consumer Healthcare Holdings LLC · No. 7:22-cv-01341
- Kenneth Karas
- Mar. 10, 2023
Background
Nancy Calchi brought the action individually and on behalf of proposed classes of consumers against GlaxoSmithKline Consumer Healthcare Holdings (US) LLC and GSK Consumer Health, Inc. The complaint alleged that cough-medicine products containing dextromethorphan hydrobromide were labeled “Non-Drowsy,” and that this labeling was false and materially misleading to reasonable consumers.
Calchi asserted claims under the consumer-protection laws of California, Connecticut, Illinois, Washington, Maryland, and Washington, D.C. She also asserted claims under New York General Business Law §§ 349 and 350 and a nationwide breach-of-express-warranty claim. Pfizer, Inc. remained in the caption, but the opinion states that Pfizer had been dismissed without prejudice by stipulation on August 4, 2022.
Arguments and Analysis
The defendants moved to dismiss. They submitted supplemental authority citing Goldstein v. Walmart, Inc., a decision from the same district that dismissed nearly identical claims as preempted by the Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq. Preemption means that federal law prevents a state-law claim from proceeding because the federal law controls the issue.
Calchi relied heavily on Lemus v. Rite Aid Corp., a decision from the Central District of California that concluded materially identical claims were not preempted. After reviewing both decisions, the Court adopted the reasoning of Goldstein in full and concluded that Calchi’s state consumer-protection claims and breach-of-express-warranty claim were preempted.
Disposition
The Court dismissed Calchi’s claims without prejudice because this was the first adjudication of those claims on the merits. The order allowed Calchi 30 days from the order’s date to file an amended complaint alleging additional facts and otherwise addressing the identified deficiencies. The amended complaint would replace, rather than supplement, the previous complaints. The order warned that failing to file on time might result in dismissal of the action with prejudice. The Clerk of Court was directed to terminate the pending motion.
Judge Kenneth M. Karas did not state that the motion itself was granted or denied; the order instead dismissed the claims and terminated the pending motion.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.