Woodhams v. GlaxoSmithKline Consumer Healthcare Holdings LLC.

Background

Timothy A. Woodhams, John Covello, Cynthia Carrillo, Oscar De Leon, Daniel Paul, Robert Trepper, and Daniel Utterback asserted consumer-protection and unjust-enrichment claims against GlaxoSmithKline Consumer Healthcare Holdings (US) LLC. They alleged that the company charged more for reformulated “Maximum Strength” Robitussin than for “Regular Strength” Robitussin even though the Maximum Strength product had a lower concentration of active ingredients per bottle during the period from June 20, 2016, through summer 2018.

Before the reformulation, a 10-milliliter dose of Maximum Strength Robitussin contained 20 milligrams of dextromethorphan hydrobromide and 400 milligrams of guaifenesin. The reformulated product used a 20-milliliter dose while keeping those quantities per dose unchanged. As a result, each 10-milliliter portion contained half as much dextromethorphan hydrobromide and the same amount of guaifenesin as a 10-milliliter portion of Regular Strength Robitussin. Because the bottles were the same size, a bottle of Regular Strength Robitussin had twice as many doses after the reformulation. GlaxoSmithKline nevertheless charged more for Maximum Strength Robitussin and continued to use the “Maximum Strength” label.

Summary-judgment ruling

Summary judgment is a decision entered without a trial when the court determines that no genuine dispute about a material fact requires a jury’s decision. GlaxoSmithKline sought summary judgment on several grounds.

First, the court granted summary judgment against Carrillo because her testimony was hypothetical: she said that if Maximum Strength Robitussin had been on the store shelf, she would have bought it, but she could not testify that it actually was on the shelf. The court concluded that this evidence was insufficient for a reasonable factfinder to determine that she purchased the product during the relevant period.

The court denied summary judgment against Covello, De Leon, Trepper, and Utterback on the purchase-timing issue. Although their testimony contained inconsistencies and they lacked receipts, each ultimately testified that they purchased Maximum Strength Robitussin during the relevant period. The court held that the inconsistencies did not make their testimony so implausible that no reasonable juror could credit it.

Second, the court denied summary judgment on GlaxoSmithKline’s argument that Covello, De Leon, Utterback, Woodhams, and Paul were not deceived by the “Maximum Strength” label. The court held that the plaintiffs’ testimony and GlaxoSmithKline’s internal research could support a jury finding that a reasonable consumer would understand the label to represent that the product had a higher concentration of active ingredients than Regular Strength Robitussin. The court reasoned that consumers should not be expected to compare both products, calculate the concentration per milliliter, and determine that the more expensive product was less concentrated by volume.

Third, the court denied summary judgment on GlaxoSmithKline’s argument that De Leon, Utterback, Covello, Paul, and Trepper could not prove causation. The court held that a reasonable jury could find that the “Maximum Strength” label caused plaintiffs to purchase and overpay for Maximum Strength Robitussin. The court rejected the argument that consumers could not show causation unless they had purchased, or had access to, Regular Strength Robitussin at the same store.

Class-certification ruling

The plaintiffs sought certification of a proposed nationwide class under Federal Rule of Civil Procedure 23. Class certification would have allowed the named plaintiffs to litigate on behalf of other people with similar claims. The court denied the motion because the proposed representatives did not satisfy Rule 23(a)’s requirements that class representatives adequately represent the class and have claims typical of the class.

The court focused on the proposed representatives’ inconsistent testimony about whether, when, and how often they purchased Maximum Strength Robitussin. It also considered the absence of receipts and the fact that some purchases did not appear in store-loyalty records. The court concluded that these issues could require the plaintiffs to devote substantial attention to their own credibility and purchases, distracting from issues shared by absent class members. The court therefore did not reach the separate requirements for certification under Rule 23(b). The motion to appoint class counsel was denied along with the class-certification motion.

Other motions and disposition

The court denied as moot GlaxoSmithKline’s motion to exclude the opinions of Joel E. Lesch and denied as moot GlaxoSmithKline’s motion to strike the plaintiffs’ offer of proof. The final disposition was: GlaxoSmithKline’s motion for summary judgment was granted in part and denied in part; the plaintiffs’ motion for class certification and appointment of class counsel was denied; and both other motions were denied as moot. Judge J. Paul Oetken directed the Clerk of Court to close the identified motions.