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In Re Hydroxycut Marketing and Sales v. Gnc Corporation

March 21, 2011


The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge


Defendants Iovate Health Sciences USA, Inc., Iovate Health Sciences, Inc., Iovate Health Sciences Research, Inc., Iovate Health Sciences International, Inc., Iovate HC 2005 Formulations, Ltd., and Muscletech Research and Development, Inc. (collectively "Iovate Defendants") have filed a Rule 12(b)(6) motion to dismiss Plaintiff's first cause of action (negligence), fourth cause of action (breach of express warranty), fifth cause of action (breach of implied warranty), seventh cause of action (fraud and misrepresentation), eighth cause of action (violation of the Kansas Consumer Practices Act), ninth cause of action (unjust enrichment), and tenth cause of action (punitive damages). Defendant GNC Corporation ("GNC") joins in the Iovate Defendants' motion to dismiss and has filed its own Rule 12(b)(6) motion to dismiss, which also seeks dismissal of Plaintiff's second cause of action (product liability - manufacturing and/or design defect) and third cause of action (product liability - warning). For the reasons discussed below, the Iovate Defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART, and GNC's motion to dismiss is GRANTED IN PART and DENIED IN PART.


On January 29, 2010, Plaintiff filed her complaint in the District of Kansas (Kan. Civ. Case No. 10cv2065 JTM/DWB). On March 29, 2010, the case was transferred to the Southern District of California as a tag-along action to the In re Hydroxycut Marketing and Sales Practices multi-district litigation currently pending before the Court. Upon transfer, the case was assigned a separate civil case number in the Southern District of California (Case No. 10cv670 BTM(AJB)).

According to the Complaint, Defendants negligently formulated, designed, manufactured, marketed, advertised, promoted, distributed, and/or sold Hydroxycut Products that potentially cause serious problems, including Rhabdomyolysis, cardiovascular symptoms, hypertension, elevated liver enzymes, kidney or liver failure, and death. (Compl. ¶ 40.) Plaintiff alleges that although Defendants knew or should have known that Hydroxycut Products potentially cause health problems, Defendant failed to provide any warning to consumers and promoted and advertised Hydroxycut as safe and effective. (Compl. ¶¶ 22-30, 42, 46.)

Plaintiff alleges that between 2005 and 2007, she consumed Hydroxycut Products that she purchased from various GNC stores within Olathe, Kansas. (Compl. ¶ 51.) According to Plaintiff, based on Defendants' misrepresentations and deceptive marketing scheme, she believed that the Hydroxycut Products were healthy and safe for use as a dietary supplement for weight loss purposes. (Compl. ¶¶ 52-53.) Plaintiff further alleges that as a result of consuming Hydroxycut Products, she experienced severe health issues, including elevated enzymes and severe liver damage. (Compl. ¶ 55.)

Plaintiff asserts the following claims against the Iovate Defendants and GNC: (1) negligence; (2) product liability-manufacturing and/or design defect; (3) product liability - warning; (4) breach of express warranty; (5) breach of implied warranty;*fn1 (7) fraud and misrepresentation; (8) violation of the Kansas Consumer Protection Act; (9) unjust enrichment; and (10) punitive damages.


A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should be granted only where a plaintiff's complaint lacks a "cognizable legal theory" or sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). When reviewing a motion to dismiss, the allegations of material fact in plaintiff's complaint are taken as true and construed in the light most favorable to the plaintiff. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Although detailed factual allegations are not required, factual allegations "must be enough to raise a right to relief above the speculative level." Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007). "A plaintiff's obligation to prove the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not show[n] that the pleader is entitled to relief." Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1950 (2009) (internal quotation marks omitted). Only a complaint that states a plausible claim for relief will survive a motion to dismiss. Id.


A. Product Liability Claims

Defendants contend that Plaintiff's claims for negligence, breach of express warranty, breach of implied warranty and fraud should be dismissed because they are subsumed under Plaintiff's product liability claims for manufacturing/design defect and failure to warn.

The Kansas Product Liability Act, K.S.A. § 60-3301, et. seq., governs product liability claims, which are defined as follows:

"Product liability claim" includes any claim or action brought for harm caused by the manufacture, production, making, construction, fabrication, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging, storage or labeling of the relevant product. It includes, but is not limited to, any action based on, strict liability in tort, negligence, breach of express or implied warranty, breach of, or failure to, discharge a duty to warn or instruct, whether negligent or ...

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