redspy

By Associated Press

A jury has ordered a sports nutrition store to pay $4.1 million to a man who purchased a diet supplement containing the now-banned herbal stimulant ephedra and then suffered a debilitating stroke.

The case represents a rare instance of a retailer being found liable for selling a product containing ephedra.

"This case was important to the public because it shows that retailers have a duty of care toward their customers to ensure that the products they sell are safe," said attorney John Tiedt, who represented plaintiffs Mark and Gina Hagen.

Ephedrine supplements were widely used for weight loss and bodybuilding, but have been linked to more than 150 deaths, including that of Baltimore Orioles pitcher Steve Bechler.

The Food and Drug Administration banned all dietary supplements containing ephedrine alkaloids on April 12.

Hagen, who lives in Santa Margarita, suffered a stroke on Feb. 11, 2002, hours after taking the thermogenic weight management pill Dymetadrine Xtreme, which he purchased at Fox Nutrition in Los Angeles.

As a result of the stroke, Hagen now needs a wheelchair or a walker to get around, and he has trouble speaking because his vocal chords continually spasm, among other lingering health problems, Tiedt said.

Fox Nutrition ended up becoming a defendant in the case as a result of California liability law, which states everyone along a chain of commerce becomes a defendant in a product liability suit.

Golden, Colo.-based manufacturer AST Sports Science went bankrupt and the courts dismissed the case against a Northridge-based distributor, DMA Industries, said Los Angeles attorney Matthew Trostler, who represented Fox Nutrition.

"We have the unique situation where the retailer is the only defendant in the case," Trostler said. "We can't argue against that they sold it, or the law, so we fought the case based on medical causation."

While the FDA ban on ephedra products had not yet been instituted at the time Hagen was taking the diet supplement, jurors decided the vitamin discount seller was partially responsible.

The 2-week-long trial ended Wednesday. Jurors initially returned a $6.9 million award, but then reduced it by 40 percent, citing that Hagen had also been using a prescription drug at the same time he took the ephedra-laced pill.

The jury also did not award damages to Hagen's wife, who had sought compensation for loss of consortium and other emotional hardship.

Trostler said he hadn't determined yet whether he will appeal

LAM

that shit is so wrong. I would have liked to hear about the physical condition and family history of the person who filled the suite prior to him taking the supplement...

Dumbest statement made in the Anabolic Zone for Nov

TBD

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What you talking about Willis ?

bludevil

also would like to know the prescription medication he was taking. I know all ephedrine based products had warning labels on them and probably 99% say Check with your doctor before taking this product. I guess consumer negligence doesn't apply here

LAM

not in the US. Seems like ignorance is rewarded here these days...

Dumbest statement made in the Anabolic Zone for Nov

TBD

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What you talking about Willis ?

gococksDJS

I hate seeing titles like "Ephedrine at fault" it should say "User at fault for being careless with an otherwise extremely effective product".

gococksDJS

I hate seeing titles like "Ephedrine at fault". It should say "User at fault for being careless with an otherwise very effective product." This is why the FDA is continuing to push bans on great products. Instead of banning the products, they should ban idiots from using them.

gococksDJS

oops, didn't mean to post twice

Pepper

63-17

My Carb Cycling Progress - you can't hide from the numbers.

Jag

i agree.

these people obviously have no brain or common sense so shouldn't they need to be in the care of someone as they could potentially be a danger to themselves & others?

put them all on an island separate from those who live on logic & common sense.

Jag

gococksDJS

Ah Pepper, i didn't see that funny little tidbit until just now. Just wait until this season, Lou has a few tricks up his sleeve that not even the smartest goat in Clemson's graduate program could be ready for. Baaaaaaaaaa

albardo

The press reports about the Hagen case failed to mention a few important points. For one, Mr.Hagen had a serious pre-existing, congenital medical condition called an arterio-venous malformation (AVM).This is highly significant because a common outcome of this condition is the same type of stroke experienced by Hagen, and the peak occurance, according to medical texts, happens to occur at just about the same age as when Hagen had his stroke.
During the course of the trial, it was noted that Hagen was also using various analgesics, particularly one called Vicodan. If you look up possible side effects of this particular medication, you'll find that the drug can precipiate a stroke. Just think what this means to someone who already had a built-in stroke risk factor.
During the trial, Hagen said that he was in perfect health prior to the stroke, yet he had previously mentioned in a deposition that he experienced severe headaches two weeks or more prior to the actual stroke event. Again, this is significant because severe recurrant headaches could be either a forerunner or an actual small stroke leading up to a massive stroke, as experienced by Hagen.
As noted in another post, the company that marketed and advertised the product that allegedly directly caused Hagen's stroke, Dymetadrine Extreme, was AST out of Golden, CO. AST was the inital target in the case, but the case against AST was dismissed when the company filed for bankruptcy. The mention of AST was banned by the presiding judge in the case against Fox Nutrition. One alternate juror was even admonished during the trial in the absence of the other jurors after he openly wondered about a box labeled "Hagen vs.AST" that he had seen near the plaintiff's table. Despite this, a taped testimony of the owner of AST was played several times during the trial. No one from Fox Nutrition had ever met, nor spoken to this man, making his testimony curious to say the least. He appeared to have not a clue about his products, offered nothing of use other than abject ignorance to either side in the case.
Another important point was that Mark Hagen himself had requested that Fox order the Dymetadrine product for him, since Fox normally did not sell that particular product. He told the owner of Fox that if she would get the product, he would tell the other police officers he worked with in Culver City to also buy the product. On that basis, since Hagen was a regular customer, the owner complied. Her primary mistake, however, was in purchasing the product directly from AST. Unknown to Fox Nutrition, AST was operating illegally, having no insurance to cover any of their products. This is what led Fox to be included in the case, besides the chain of sale law in California. This also explains why you never hear about liquor stores or any other stores that sell cigarettes being included in major lawsuits against tobacco companies; the tobacco companies do provide indemnification insurance to protect their retail sellers, so the local sellers are dropped immediately from such cases. This wasn't the case with Fox due to the gross irresponsibility and negligence on the part of AST.
During trial, testimony indicated that Hagen had used various ephedrine products for 8 years prior to his stroke, yet never appeared to suffer any adverse effects. He even admitted to purchasing 5 bottles of the product from Fox before his stroke, yet taking 1 or 2 tablets led to his stroke? The truth is that ephedrine does not accumulate in the body. It peaks in the blood in one hour, then gradually is degraded. It is completely out of the body by the 12-hour mark, and any physiological effects are gone after 4 hours. Yet, when Hagen arrived at the hospital after his stroke, a blood toxicology test was given to him. This test is used to detect drugs or toxins in his blood. The test was done about an hour after Hagen's symptoms arose, about the same time that peak levels of ephedrine would show up in the blood. Yet no ephedrine or any other drug showed up in the toxicology results on Hagen. If Hagen had ingested even one tablet of an ephedrine-containing product, it would have showed up as amphetamines, yet he was clear for amphetamines. This evidence, BTW, was blocked by Hagen's attorney during the trial.
All bottles of ephedrine or its natural herbal source, ephedra, have come with extensive warning labels since they were introduced to the commercial market in 1994. Hagan claims to have never read such labels, among the warnings of which clearly read that the products were contraindicated for those with existing cardiovascular risk factors, such as heart disease, high blood pressure, and strokes. That Hagen said he never read the labels is a dubious claim at best, considering his 18 years as a police officer trained to observe minute details. At one point, he admitted having read a line from a product label from an ephedrine-containing product called "Ultimate Orange" in which the label warned that the product wasn't for use by Olympic athletes, since ephedrine was a banned stimulant in the Olympics. The interesting point here is that this line in the product is listed after 2 paragraphs of health warnings. So by implication, Hagen is saying that he skipped the extensive warnings on the product label, yet showed that one line about Olympic athletes to his wife.
When Hagen arrived at the hospital following his stroke, a bottle was handed to attending doctors and was said to be what Hagen ingested just prior to his stroke. The product listed in hospital admitting records is called Thermogreen. Thermogreen is a product made by the Universal vitamin company, and was never, at any time, sold at Fox Nutrition. During his closing, Hagen's attorney suggested that the Thermogreen product doesn't exist. It does and this can be readily proved by a simple Internet search. At one point in his testimony, Hagen could not recall exactly what or how much of a substance he ingested just prior to his stroke. This was written off as "memory deficits" from Hagen's stroke. Yet, some of Hagen's own paid professional medical witnesses in the case testified that Hagen's memory was intact and unaffected by the stroke. The stroke apparently only affected Hagen's motor function, not his cognition or thinking ability.
At another point in the testimony, Hagen said that he kept all his supplements in a kitchen cabinet in his home. Yet, when he ingested the tablets that allegedly caused his stroke, he was in an upstairs bedroom--how did the tablets get up there?
During the trial, Hagen's lawyer said that one reason that Fox Nutrition was at fault was because the store should have posted large signs, warning of the dangers linked to ephedrine usage. He also said that it was the responsibility of employees of Fox--none of whom had any medical training--to take complete medical histories of all customers. That these suggestions are ludicrious is obvious. No store on this planet has ever had any such warning signs. For one, the evidence against ephedrine was never clear-cut. In fact, the preponderance of evidence indicates that using ephedrine in suggested doses, without any pre-existing medical condition that would preclude its usage, is perfectly safe for any healthy person. Underscoring this is the fact that millions of doses of ephedrine was used by millions of people without incident. The truth is that there are substances sold without any warning signs that are far more toxic than ephedrine. An example is the drug contained in Tylonol. This over-the-counter drug can cause immediate liver failure, and is 1,200-times more toxic than ephedrine. Aspirin can cause kidney failure--where are the signs in stores that sell aspirin or Tylonol, aren't such stores irresponsible as Hagen's lawyer suggests? For that matter, where are the signs in liquor stores warning about the established dangers of alcohol or tobacco? In your local supermarket, when was the last time you saw prominent signs warning about the high cholesterol content of eggs being linked to cardiovascular disease? Or what about all that mercury in fish--show me the large signs that Hagen's lawyer says should exist. These health problems are far more direct and established compared to the paltry evidence against ephedrine. But where are the signs? When I bought a can of beer the other day, the clerk neglected to take my full medical history, or even ask if I were driving--is this a basis for a possible lawsuit? Silly as all this sounds, Hagen's lawyer actually brought this out during the trial--that is, Fox's failure to "protect its customers." If anything, Fox provided less advice than other stores because of its warehouse policy. This is what makes this case even more ludicrious.
Hagen's wife had filed a seperate lawsuit, for "loss of companionship." During the trial, it was repeatedly brought up that Hagen's wife was preparing to divorce him, since he was, in her words,"not the man I married." What ever happened to the marriage vow that says "in sickness and in health?" The jury saw through this ruse, and voted here zero damages. My personal feeling is that Gina, Hagen's wife, never intended to leave him. It was likely a plan concocted up by their lawyer to get more sympathy from the jury. In the long run, however, such a plan wasn't needed, since the jury totally overlooked the facts in the case, including the judges statement to them not to vote on a sympathy basis, and voted that way anyway.
I do sympathize with Mark Hagen's condition. But it's wrong to sue an innocent store in order to cash in on the legal hysteria surrounding ephedrine. To award Hagen money from what was clearly a medical accident caused by a pre-existing condition mandates providing similar awards to all those in this country that have suffered naturally occuring strokes. It is the responsibility of the individual consumer to monitor their own health, not a store. To assume otherwise is, as some have noted here, to set a dangerous and grossly unfair precedent. If this case was brought to help people become aware of the dangers of ephedrine, not for monetary gain, let's see Hagen and his lawyer give their insurance settlement to a charity--as others have said here. Don't hold your breath over this.

Butterloaf

Soooo WRONG!

tomas101

this was forseeable negligence tho...so that means the company should not liable at all...thats a case of having shitty lawyers

DimebagDarrell

im gonna go to wal-mart, buy a knife, then stab myself in the leg so i can't walk. then im suing wal-mart for selling it to me and ecko for making the damn thing in the first place. f*cking liberal judges.

cutting sucks.

Dale Mabry

What prolly ended up happening is this dude asked someone in the store what would be a good supp to lose weight, the store staff prolly told him the ECA deal without asking about his medical history. To be honest, that is what happens when you hire staff at minimum wage with no education. It is also what happens when you don't read a warning. I think if TP chimed in here he would agree with me that a warning is not enough. I used to have to help retards in this case, my boss was an expert witness in regards to product lawsuits. You could put a warning on a product that was in flourescent green and orange, blasted the warning over a loudspeaker, and would not allow you to open the bottle unless you read the warning and still the company would be found negligent, it is an unfortunate reality in todays world of no culpability.

If sense were common, everyone would have it.

4/2007-Current 75th Ranked most popular image 1 spot behind Prince's bulge...

tomas101

u wouldnt win...thats a known negligence...you are to already know the dangers of knives...no one would be responsible but you....we were just talking about this in business law last friday....kinda wierd...lol

albardo

If you read what I wrote carefully, you will note that the store in question had a strict policy of offering zero advice. In fact, the store had large signs posted stating the policy of the store, meaning that it was a warehouse operation offering no customer service.The customer was required to know exactly what they wanted when they entered the store, similarly to a Costco-type operation. In return, the customer would get their purchased products at a wholesale price far lower compared to chains, such as GNC and others that do offer hand-holding customer service. I also wrote that Hagen specifically requested this product. No one told him to buy it. To ignore explicit health warnings on product labels is tantamount to ignoring traffic signs and red lights at intersections. It's just sheer stupidity. Besides, it's clear that Hagen had a stroke caused by a pre-existing condition. He used ephedrine supplements for over 8 years prior to his stroke, yet nothing happened to him. Take a certain dose of cyanide and see what happens. This is what his ass lawyer said about ephedrine--that just using one dose will cause heart attacks or other adverse health events, even in healthy people. Anyone who has ever used these supplements knows how full of crap that shyster attorney is.