Natural Foods Merchandiser

Retailer Sued in Ephedra Case; Plaintiff Awarded $4.1 Million

A warning went out to supplements retailers Aug. 25 when a California jury awarded $4.1 million to a consumer in the first successful ephedra product liability case against a retailer.

The jury cited the retailer, Fox Nutrition of Los Angeles, for negligence when Mark Hagen, of Santa Margarita, Calif., suffered a debilitating stroke in 2002 after taking Dymetadrine Xtreme, an ephedra product he bought at Fox Nutrition. Even though the stroke occurred before the federal ephedra ban was in place, the jury said the retailer should have either warned consumers about the risks of ephedra or pulled the controversial product from the shelves.

Gerald Brainum, one of Fox Nutrition's owners, admitted in a hearing that he had been aware of the controversies and dangers related to ephedra while he kept ephedra products in his store. No one from Fox Nutrition was available for comment before press time.

The jury had initially awarded Hagen $6.9 million, but reduced the amount when it found that Hagen was also negligent because he consumed the product at the same time as a prescription drug without consulting a physician, as the product label advised.

Before the case against Fox Nutrition, Hagen had already sued the manufacturer of Dymetadrine Xtreme, AST Sports Science, but was unsuccessful because the company had gone bankrupt.

Loren Israelsen of Salt Lake City-based LDI Group said that while retailers usually are not exposed to lawsuits like this, they could be next on the ephedra litigation hit list because many manufacturers are filing for bankruptcy and running out of insurance coverage.

"Lawsuits follow the money," said Israelsen. He said plaintiffs are looking for the insurance policies and asset bases, which might even be found in smaller retailers.

Israelsen warned that retailers should be cautious about carrying potentially dangerous products. In small stores, he said, the retailer is the interface for information between the consumer and the manufacturer, and needs to take a common-sense approach to risky products.

Because this case is under California law, Israelsen said he was unsure of what precedent it might set. "Does this have consequences for products other than ephedra? We don't know yet," he said.

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