This week, a lawsuit was filed in Hawaii on behalf of a woman (the plaintiff) who used OxyElite Pro and subsequently suffered acute hepatitis and liver injury.
The lawsuit alleges that the plaintiff consumed OxyElite Pro for several months before she began experiencing symptoms of hepatitis infection in March 2013. These symptoms included abdominal pain, nausea, fatigue and muscle aches. She went undiagnosed until August of 2013, when she was hospitalized at Hilo Medical Center and diagnosed with acute hepatitis.
The lawsuit was filed against USPlabs, LLC, the corporation that manufactures OxyElite Pro, and GNC Holdings, Inc., a retailer and distributor of OxyElite Pro. On November 9, 2013, USPlabs issued a recall of OxyElite products because of an association between these products and over 20 cases of acute hepatitis and related liver disease in Hawaii. Two of these people have had liver transplants. The recall included certain lots of OxyElite Pro Super Thermo capsules, OxyElite Pro Ultra-Intense Thermo capsules, OxyElite Pro Super Thermo Powder and (on November 19) Raspberry Lemonade OxyElite Pro Super Thermo Powder.
The suit lists three “causes of action”, theories of liability (legal responsibility). The first is strict liability. Under this theory of liability, the lawsuit alleges that OxyElite Pro consumed by the plaintiff was unsafe for human consumption, unreasonably dangerous, and the cause of the plaintiff’s acute hepatitis and resulting liver damage.
The second cause of action is negligence. According to the lawsuit, defendants were negligent in manufacturing, distributing and selling the OxyElite Pro products for the following reasons: the OxyElite was “adulterated, not fit for human consumption and not reasonably safe”; the defendants did not properly supervise, train and monitor their employees, or the employees of their agents or subcontractors, in the preparation and delivery of the product; defendants did not comply with the law; and defendants failed to provide adequate warnings and instructions regarding the use of OxyElite.
The third cause of action is for breach of implied and expressed warranties that the OxyElite was safety manufactured and safe and fit for human consumption. These warranties are contractual in nature.
