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Tricia Zubrick, Individually and On Behalf of All Other Similarly Situated v. Endo Pharmaceuticals

August 27, 2012

TRICIA ZUBRICK, INDIVIDUALLY AND ON BEHALF OF ALL OTHER SIMILARLY SITUATED, PLAINTIFF,
v.
ENDO PHARMACEUTICALS, INC.,
ENDO PHARMACEUTICALS HOLDINGS, INC., AND
VINTAGE PHARMACEUTICALS, LLC, DEFENDANTS.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Plaintiff Tricia Zubrick, individually and on behalf of all others similarly situated, filed a class action complaint against Defendants Endo Pharmaceuticals, Inc., Endo Pharmaceuticals Holdings, Inc., and Vintage Pharmaceuticals, LLC.*fn1 Before the Court are Defendants' motion [18] to dismiss, or in the alternative, for summary judgment and Plaintiff's motion [30] to deny or stay Defendants' motion pending discovery. For the reasons stated below, Defendants' motion [18] is granted, and Plaintiff's motion [30] is denied. As a result, Plaintiff's motion to certify [8] is also denied as moot.

I. Background

A. Allegations in the Complaint*fn2

Zubrick proposes a class*fn3 of consumers of certain "ineffective" Tri-Previfem birth control pills, which are manufactured by Defendants. [1 at ¶¶ 1, 23.] Zubrick purchased three packages of Tri-Previfem in lot DGHN that expire in December 2012. [1 at ¶ 18.] The lot number and expiration date are visible in each of the three pictures of the pills attached to the complaint. [See 1 at 6-7.] These pills, however, were "ineffectively manufactured, packaged, and distributed" in that the pill orientation was out of order, leaving Zubrick "without adequate contraception and at risk for pregnancy." [1 at ¶ 12.]

On September 15, 2011, Defendants issued a nationwide voluntary recall of TriPrevifem, including lot DGHN. [1 at ¶ 15.] A month later, Zubrick's doctor informed her about the recall; she also received a letter from the pharmacy where she filled her prescriptions. [1 at ¶ 19.] Because of the defect, Zubrick "was left in the same position as if she had not taken any oral contraceptives." [1 at ¶ 21.] Zubrick contacted the pharmacy and Defendants to request a refund, but her requests were denied. [1 at ¶ 20.]

On December 1, 2011, Zubrick filed a five-count complaint in federal court "to recover for damages for ingesting the ineffective pills." [1 at ¶ 17.] In Count I (violation of Illinois Consumer Fraud and Deceptive Business Practices Act and similar state laws), Zubrick alleges that she relied on Defendants' failure to disclose the defect in purchasing Tri-Previfem, resulting in inadequate contraceptive protection. [1 at ¶¶ 42-43.] In Count III (common law fraud by omission),*fn4 Zubrick makes similar allegations. [1 at ¶¶ 60-61.] In Count IV (breach of implied warranty of merchantability), Zubrick alleges that the Tri-Previfem pills she purchased were not reasonably fit for their intended purpose. [1 at ¶¶ 64-65.] In Count V (unjust enrichment), Zubrick alleges that, due to the defect, it would be inequitable for Defendants to retain benefits she conferred on them in purchasing Tri-Previfem. [1 at ¶¶ 69, 71.] In each Count, Zubrick requests, among other things, that Defendants be compelled to establish a program to reimburse customers who have purchased "ineffective" Tri-Previfem pills.

B. Undisputed Material Facts*fn5

The press release issued by Defendants regarding the recall is publicly available. [29 at

¶ 6.] The release states, in relevant part:

The recall is being implemented because of a packaging error, where select blisters were rotated 180 degrees within the card, reversing the weekly tablet orientation and making the lot number and expiry date no longer visible.

[C]onsumers exposed to affected packaging should begin using a non-hormonal form of contraception immediately and consult their health care provider or pharmacist. Pharmacies are being instructed to contact consumers who have received affected product.

FDA, Recall -- Firm Press Release, "Qualitest Pharmaceuticals Issues a Nationwide Voluntary Recall of Oral Contraceptives," http://www.fda.gov/Safety/Recalls/ucm272199.htm (Sept. 15, 2011) (emphasis added). The press release also includes a link to Defendants' website where consumers can view photographs of properly packaged pills. [29 at ¶ 6.]

Zubrick's three packages of Tri-Previfem show a lot number and expiry date, as alleged in her ...


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