United States District Court, N.D. Illinois, Eastern Division
KARMEL AL HAJ, individually and on behalf of all others similarly situated, Plaintiff,
PFIZER INC., Defendant.
MEMORANDUM OPINION AND ORDER
behalf of herself and a putative nationwide class, Karmel Al
Haj alleges in this diversity suit that Pfizer Inc. deceived
consumers by charging more for “Maximum Strength”
Robitussin cough syrup than for “Regular
Strength” Robitussin even though the former had a lower
concentration of active ingredients than the latter. Doc. 1.
In two prior opinions, familiarity with which is presumed,
the court dismissed another plaintiff's claims for lack
of personal jurisdiction and allowed Al Haj's individual
and putative class claims to proceed. Docs. 59-60 (reported
at 338 F.Supp.3d 741 (N.D. Ill. 2018)); Docs. 82-83 (reported
at 338 F.Supp.3d 815 (N.D. Ill. 2018)). Pfizer now moves for
summary judgment, Doc. 102, and Al Haj moves for class
certification, Doc. 120. Pfizer's summary judgment motion
is denied, and Al Haj's class certification motion is
denied without prejudice to renewal in a manner that accounts
for this opinion's discussion of her claims.
court recites the facts as favorably to Al Haj as the record
and Local Rule 56.1 permit. See Johnson v. Advocate
Health & Hosps. Corp., 892 F.3d 887, 893 (7th Cir.
2018). At this juncture, the court must assume the truth of
those facts, but does not vouch for them. See Gates v.
Bd. of Educ. of Chi., 916 F.3d 631, 633 (7th Cir. 2019).
line of cough and congestion medications includes Robitussin
Coughਗ Congestion DM (“Regular Strength
Robitussin”) and Maximum Strength Robitussin
Coughਗ Congestion DM (“Maximum Strength
Robitussin”). Doc. 142 at ¶ 5. Al Haj began
purchasing Regular Strength Robitussin in 2011, but she later
switched to Maximum Strength Robitussin, which she purchased
in December 2016, February 2017, and April 2017. Id.
at ¶¶ 22, 25, 39. When she made those purchases,
Maximum Strength Robitussin cost some two dollars more than
Regular Strength Robitussin. Id. at ¶ 33.
the relevant time period, Maximum Strength and Regular
Strength Robitussin contained two active ingredients:
dextromethorphan hydrobromide (“DXM Hbr”), a
cough suppressant, and guaifenesin, an expectorant.
Id. at ¶¶ 6, 13; 21 C.F.R. §§
341.14(a)(4) (DXM Hbr), 341.18 (guaifenesin). Before June
2016, the recommended dosage of Maximum Strength Robitussin
was 10 ml, and each 10 ml dose of Maximum Strength Robitussin
contained the same amount of DXM Hbr (20 mg) but twice as
much guaifenesin (400 mg) as the recommended 10 ml dose of
Regular Strength Robitussin. Doc. 160 at ¶ 1. On June
20, 2016, as part of “Project Accelerate, ”
Pfizer reformulated Maximum Strength Robitussin to change the
recommended dose from 10 ml to 20 ml while keeping Regular
Strength Robitussin's recommended dose at 10 ml.
Id. at ¶¶ 1, 5; Doc. 142 at ¶¶
doubling the dosage size of Maximum Strength Robitussin (10
ml to 20 ml) but maintaining the level of active ingredients
per dose (20 mg of DXM Hbr, 400 mg of guaifenesin),
Pfizer's reformulation halved the product's
concentration of active ingredients (2 mg to 1 mg of DXM Hbr
per ml, 40 mg to 20 mg of guaifenesin per ml). Doc. 160 at
¶ 1. As a result, until Pfizer in mid-2018 similarly
doubled Regular Strength Robitussin's recommended dosage
size from 10 ml to 20 ml and thereby halved its concentration
of active ingredients, Maximum Strength Robitussin had the
same concentration of guaifenesin but only half the
concentration of DXM Hbr as Regular Strength Robitussin.
Ibid.] Doc. 142 at ¶ 21. This table sets forth
the pertinent figures:
1. Quantity of Active Ingredients per 10 ml of
Regular Strength (before mid-2018)
Maximum Strength (before June 2016)
Maximum Strength (after June 2016)
while a single dose of reformulated Maximum Strength
Robitussin had twice as much guaifenesin and as much DXM Hbr
as a single dose of Regular Strength Robitussin, that was
because the recommended Maximum Strength dose was twice the
volume (20 ml) of the recommended Regular Strength dose (10
ml). Doc. 160 at ¶ 1; Doc. 142 at ¶ 15. And because
both products were sold in bottles of the same size, this
meant that a bottle of Regular Strength Robitussin had twice
as many doses as a bottle of Maximum Strength Robitussin.
Doc. 160 at ¶¶ 1-2, 19. Despite this, Pfizer
charged more for a bottle of Maximum Strength Robitussin than
for a bottle of Regular Strength Robitussin. Doc. 142 at
¶ 33; Doc. 160 at ¶ 20. Indeed, an internal Pfizer
presentation about Maximum Strength Robitussin's
reformulation noted that doubling the dose would
"[i]ncrease price/dose." Doc. 160 at ¶ 8
(alteration in original) (quoting Doc. 146-12 at 10). Pfizer
staff touted the reduced number of doses per bottle of
Maximum Strength Robitussin as a positive result of the
reformulation. Id. at ¶¶ 9-10, 18-20.
Maximum Strength Robitussin's reformulation diluted the
concentration of active ingredients, Pfizer retained the
product's "Maximum Strength" designation and
label because each 20 ml dose contained the maximum quantity
of DXM Hbr and guaifenesin permitted by applicable U.S. Food
and Drug Administration (“FDA”) regulations. Doc.
142 at ¶¶ 7, 13; see 21 C.F.R.
§§ 341.74(d)(1)(iii) (DXM Hbr), 341.78(d)
(guaifenesin). To alert customers that the reformulation
doubled the recommended Maximum Strength dose, Pfizer placed
a “See New Dosing” alert at the upper right
corner of the product's box. Doc. 142 at ¶ 16; Doc.
160 at ¶ 31. Here are reproductions of the relevant
boxes with a circle around the “See New Dosing”
1. Front of Maximum Strength and Regular Strength Robitussin
“Drug Facts” section on the back of the
reformulated Maximum Strength box listed the recommended
adult dose as 20 ml every four hours. Doc. 142 at ¶ 20.
Beneath the Drug Facts, the packaging explained:
“Maximum strength claim based on maximum levels of
active ingredients per dose.” Ibid. Nothing on
the reformulated Maximum Strength Robitussin box referenced
or compared the concentration of active ingredients in
Regular Strength Robitussin. Doc. 160 at ¶¶ 30-31.
Here is a reproduction of the back of the reformulated
Maximum Strength Robitussin box with circles around the
dosage information and “Maximum Strength”
2. Back of Reformulated Maximum ...