Class Action Lawsuit Dismissed Over Error in Birth Control Pill Packaging

August 29, 2012

NEW YORK — Kaye Scholer achieved a victory by securing the dismissal of a putative class action suit for clients Endo Pharmaceuticals and Vintage Pharmaceuticals, in a case involving allegedly improperly packaged birth control pills.

In Zubrick v. Endo Pharmaceuticals, US District Court (ND Illinois), plaintiff Tricia Zubrick purchased three packages of Tri-Previfem birth control, which in September 2011 was the subject of a nationwide, voluntary, retail-level recall. The defendants’ recall press release explained that select blister packs within the recalled drug lots were rotated 180 degrees within the card, reversing the weekly tablet orientation and making the lot number and expiry date no longer visible. Both Zubrick’s doctor and pharmacy informed Zubrick about the recall, but neither would reimburse her for the product.

Zubrick initiated this nationwide putative class action lawsuit, alleging that she and others had purchased inadequate contraception and seeking reimbursement for “ineffective” Tri-Previfem pills.

US District Court Judge Robert M. Dow, Jr. agreed with Kaye Scholer that Zubrick’s complaint should be dismissed for lack of standing because there was no evidence that the Tri-Previfem Zubrick had purchased was improperly packaged.

“Because plaintiff’s blister packs were properly packaged, the court agreed with our argument that those pills were not ‘ineffective’ under the terms of the recall. Accordingly, the plaintiff lacked standing to bring her claims and the court properly dismissed her case,” said Kaye Scholer’s Angela Vicari, the product liability lawyer who drafted the motion to dismiss. Kaye Scholer Partners Jeff Wagner and Pamela Yates also assisted on this matter.

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