Contributing Author: Sylvia E. Simson
Last Thursday, Judge Barry Ted Moskowitz of the U.S. District Court for the Southern District of California granted Iovate Health Sciences USA Inc.’s motion to dismiss plaintiff Jessica Rogoff’s claims for intentional infliction of emotional distress, negligent infliction of emotional distress, and “fraud and concealment”, 3 of the 11 counts in her action against the maker of the popular fat-burning supplement Hydroxycut. Rogoff’s suit is one of 40 consolidated in multidistrict litigation against the makers of Hydroxycut, entitled In re Hydroxycut Marketing and Sales Practices Litigation. Her Complaint’s remaining 8 counts include design and manufacturing defect claims and breach of warranty claims.
Iovate argued that the emotional distress claims should be dismissed under the Twombly/Iqbal standard and that the fraud claim be dismissed under Federal Rule of Civil Procedure 9(b). Before examining the claims under these standards, Judge Moskowitz’s order noted “at the outset” that Rogoff’s Complaint “is seriously lacking in factual allegations”, and that as noted by the U.S. Supreme Court in Iqbal, “[a] formulaic recitation of the elements of a cause of action is not sufficient to meet federal pleading standards.” In examining the emotional distress claims, the court found that Rogoff had failed to plead “one of the most basic elements,” that being actual emotional distress. Moreover, Rogoff failed to plead the “necessary element of causation” for her intentional infliction of emotional distress claim and the “essential element” of duty for her negligent infliction of emotional distress claim.
Lastly, Judge Moskowitz found that Rogoff’s “fraud by concealment” claim, which she attempted to plead under both the affirmative misrepresentation and fraudulent concealment theories of fraud, must be dismissed, regardless of theory. Under the affirmative misrepresentation theory, Rogoff failed to plead with specificity the alleged misrepresentations, specific advertisements, or specific labeling she relied upon; Judge Moskowitz noted that her “vague allegations of ‘television and/or radio advertisements’” as influencing her decision to purchase Hydroxycut “will not suffice” under Rule 9(b). Under the fraudulent concealment theory, on the other hand, which the court noted was “a closer call,” Rogoff’s allegations were conclusory and thus not as particularized and specifically factual as the theory demands.
This decision marks a win for Hydroxycut’s maker after many months of scrutiny by both the courts and government agencies. In early 2009, the FDA began receiving reports that Hydroxycut leads to jaundice and severe liver damage, and after being pressured by the government, Iovate voluntarily recalled 14 Hydroxycut diet supplements in both pill and liquid form. On May 1, 2009, the FDA issued a press release about the recall, warning dieters to stop using the supplements. This mass recall caused many media outlets to discuss the effectiveness of diet supplements and the possible health complications they may spur.