PEORIA, Ill. (Legal Newsline) - A federal judge has called part of a class action 'nonsensical' and rejected all other claims against DayQuil-maker Proctor & Gamble, which was sued for packaging the medicine with a vitamin C supplement.
P&G called the combination a "daytime convenience pack," but Jana Kampmann and her lawyers alleged she was tricked into thinking the vitamin C supplement would treat cold and flu symptoms.
P&G's motion to dismiss pointed out the label on the Super C product read: "THIS PRODUCT IS NOT INTENDED TO TREAT COLDS OR FLU." On Jan. 24, Illinois federal judge James Shadid granted the motion but allowed plaintiffs 14 days to file an amended complaint.
"While it is not clear that Plaintiff could plead a colorable claim under these facts, the Court will grant her an opportunity to amend," Shadid wrote. "Plaintiff's counsel is cautioned, however, that there must be a good faith basis for an amended complaint."
Judge Shadid noted Kampmann's lawyer Spencer Sheehan has a history of filing consumer deception class actions that have, at times, angered judges, especially in Illinois. A Chicago judge earlier this year called him a "wrecking ball" in a lawsuit over how much olive oil is in Walmart's mayonnaise.
In the DayQuil case, Shadid had harsh words for a claim for injunctive relief. Sheehan tried to assert standing by claiming his plaintiff intends to purchase the product again when it is properly labeled.
"What 'assurances' could convert Super C into a colds remedy, as Plaintiff claims this is the only reason to buy the co-packaged products?" Shadid asked. "Plaintiff has not alleged that she takes vitamin C in any form, so what 'assurance' would induce her to buy it if co-packaged with DayQuil?
"The Court finds the requested relief ill-defined and nonsensical, apparently filed with little thought.... (Sheehan) has been advised on multiple occasions, by courts throughout the country, that a plaintiff does not have standing for injunctive relief where the plaintiff is aware of the alleged deception and is no longer subject to being injured by it. Despite this, counsel continues to seek injunctive relief on the same oft-cited basis."
As for claims under an Illinois consumer protection law, Shadid said he was unaware of any manufacturer being held liable for packaging items side-by-sie.