On Wednesday a dismissal order was issued in the Southern District of New York. The case was Roslyn Harris and Mary Allen, as class representatives in a class action against Pfizer Inc., alleging fraud and implied contract regarding the sale worthiness of Chantix and seeking economic damages for the product purchased and consumed by the class.
Chantix was a smoking cessation product manufactured and distributed by Pfizer. The desired active ingredient in Chantix was varenicline, a particular form of nicotine. However, Pfizer first recalled a small subset of Chantix products, and later the entire line, after laboratory findings showed contamination of the product with N-nitroso-varenicline, another nicotine derivative and one that has been flagged as a possible carcinogen.
The plaintiffs in the class action did not pursue direct enforcement action under Food and Drug Administration statutes as there is no private right of enforcement action. The plaintiffs also did not allege personal injury due to the carcinogenic substances. Instead the class action was filed for economic damages related to the purchase and consumption of the Chantix product, with the plaintiffs alleging that they would not have purchased the product if they had known of the contamination.
The court dismissed the suit for several reasons regarding failure to state a claim. First, the court held that contamination of the product does not render the product a new or different product than the original product, so contamination of the Chantix product with the carcinogenic compound did not render the labeling of the product as Chantix false. Second, the court said the plaintiffs failed to show that Pfizer had knowledge of the degree of contamination at the time of the purchase of the product. Without this knowledge, the plaintiffs failed to show any duty of Pfizer to warn regarding this contamination.
The plaintiffs were represented by Bursor & Fisher. The defendants were represented by DLA Piper.
