Al Haj v. Pfizer Inc.

KARMEL AL HAJ, individuallyand on behalf of all others similarly situated, Plaintiff, v. PFIZER INC., Defendant.

17 C 6730

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

July 16, 2019

Judge Gary Feinerman

MEMORANDUM OPINION AND ORDER

On behalf of herself and a putative nationwide class, Karmel Al Haj alleges in this diversity suit that Pfizer Inc. deceived consumers by charging more for "Maximum Strength" Robitussin cough syrup than for "Regular Strength" Robitussin even though the former had a lower concentration of active ingredients than the latter. Doc. 1. In two prior opinions, familiarity with which is presumed, the court dismissed another plaintiff's claims for lack of personal jurisdiction and allowed Al Haj's individual and putative class claims to proceed. Docs. 59-60 (reported at 338 F. Supp. 3d 741 (N.D. Ill. 2018)); Docs. 82-83 (reported at 338 F. Supp. 3d 815 (N.D. Ill. 2018)). Pfizer now moves for summary judgment, Doc. 102, and Al Haj moves for class certification, Doc. 120. Pfizer's summary judgment motion is denied, and Al Haj's class certification motion is denied without prejudice to renewal in a manner that accounts for this opinion's discussion of her claims.

Background

The court recites the facts as favorably to Al Haj as the record and Local Rule 56.1 permit. See Johnson v. Advocate Health & Hosps. Corp., 892 F.3d 887, 893 (7th Cir. 2018). At this juncture, the court must assume the truth of those facts, but does not vouch for them. See Gates v. Bd. of Educ. of Chi., 916 F.3d 631, 633 (7th Cir. 2019).

Pfizer's line of cough and congestion medications includes Robitussin Cough+Chest Congestion DM ("Regular Strength Robitussin") and Maximum Strength Robitussin Cough+Chest Congestion DM ("Maximum Strength Robitussin"). Doc. 142 at ¶ 5. Al Haj began purchasing Regular Strength Robitussin in 2011, but she later switched to Maximum Strength Robitussin, which she purchased in December 2016, February 2017, and April 2017. Id. at ¶¶ 22, 25, 39. When she made those purchases, Maximum Strength Robitussin cost some two dollars more than Regular Strength Robitussin. Id. at ¶ 33.

Throughout the relevant time period, Maximum Strength and Regular Strength Robitussin contained two active ingredients: dextromethorphan hydrobromide ("DXM Hbr"), a cough suppressant, and guaifenesin, an expectorant. Id. at ¶¶ 6, 13; 21 C.F.R. §§ 341.14(a)(4) (DXM Hbr), 341.18 (guaifenesin). Before June 2016, the recommended dosage of Maximum Strength Robitussin was 10 ml, and each 10 ml dose of Maximum Strength Robitussin contained the same amount of DXM Hbr (20 mg) but twice as much guaifenesin (400 mg) as the recommended 10 ml dose of Regular Strength Robitussin. Doc. 160 at ¶ 1. On June 20, 2016, as part of "Project Accelerate," Pfizer reformulated Maximum Strength Robitussin to change the recommended dose from 10 ml to 20 ml while keeping Regular Strength Robitussin's recommended dose at 10 ml. Id. at ¶¶ 1, 5; Doc. 142 at ¶¶ 6, 15.

By doubling the dosage size of Maximum Strength Robitussin (10 ml to 20 ml) but maintaining the level of active ingredients per dose (20 mg of DXM Hbr, 400 mg of guaifenesin), Pfizer's reformulation halved the product's concentration of active ingredients (2 mg to 1 mg of DXM Hbr per ml, 40 mg to 20 mg of guaifenesin per ml). Doc. 160 at ¶ 1. As aresult, until Pfizer in mid-2018 similarly doubled Regular Strength Robitussin's recommended dosage size from 10 ml to 20 ml and thereby halved its concentration of active ingredients, Maximum Strength Robitussin had the same concentration of guaifenesin but only half the concentration of DXM Hbr as Regular Strength Robitussin. Ibid.; Doc. 142 at ¶ 21. This table sets forth the pertinent figures:

Table 1. Quantity of Active Ingredients per 10 ml of Robitussin

Regular Strength

(before mid-2018)

Maximum Strength

(before June 2016)

Maximum Strength

(after June 2016)

Guaifenesin

200 mg

400 mg

200 mg

DXM Hbr

20 mg

20 mg

10 mg

Thus, while a single dose of reformulated Maximum Strength Robitussin had twice as much guaifenesin and as much DXM Hbr as a single dose of Regular Strength Robitussin, that was because the recommended Maximum Strength dose was twice the volume (20 ml) of the recommended Regular Strength dose (10 ml). Doc. 160 at ¶ 1; Doc. 142 at ¶ 15. And because both products were sold in bottles of the same size, this meant that a bottle of Regular Strength Robitussin had twice as many doses as a bottle of Maximum Strength Robitussin. Doc. 160 at ¶¶ 1-2, 19. Despite this, Pfizer charged more for a bottle of Maximum Strength Robitussin than for a bottle of Regular Strength Robitussin. Doc. 142 at ¶ 33; Doc. 160 at ¶ 20. Indeed, an internal Pfizer presentation about Maximum Strength Robitussin's reformulation noted that doubling the dose would "[i]ncrease price/dose." Doc. 160 at ¶ 8 (alteration in original) (quoting Doc. 146-12 at 10). Pfizer staff touted the reduced number of doses per bottle of Maximum Strength Robitussin as a positive result of the reformulation. Id. at ¶¶ 9-10, 18-20.

Although Maximum Strength Robitussin's reformulation diluted the concentration of active ingredients, Pfizer retained the product's "Maximum Strength" designation and label because each 20 ml dose contained the maximum quantity of DXM Hbr and guaifenesinpermitted by applicable U.S. Food and Drug Administration ("FDA") regulations. Doc. 142 at ¶¶ 7, 13; see 21 C.F.R. §§ 341.74(d)(1)(iii) (DXM Hbr), 341.78(d) (guaifenesin). To alert customers that the reformulation doubled the recommended Maximum Strength dose, Pfizer placed a "See New Dosing" alert at the upper right corner of the product's box. Doc. 142 at ¶ 16; Doc. 160 at ¶ 31. Here are reproductions of the relevant boxes with a circle around the "See New Dosing" alert:

Figure 1. Front of Maximum Strength and Regular Strength Robitussin Boxes

Image materials not available for display.

Pre-Reformulation Maximum

Strength Robitussin

Image materials not available for display.

Reformulated Maximum

Strength Robitussin

Image materials not available for display.

Regular Strength Robitussin

The "Drug Facts" section on the back of the reformulated Maximum Strength box listed the recommended adult dose as 20 ml every four hours. Doc. 142 at ¶ 20. Beneath the Drug Facts, the packaging explained: "Maximum strength claim based on maximum levels of active ingredients per dose." Ibid. Nothing on the reformulated Maximum Strength Robitussin box referenced or compared the concentration of active ingredients in Regular Strength Robitussin.Doc. 160 at ¶¶ 30-31. Here is a reproduction of the back of the reformulated Maximum Strength Robitussin box with circles around the dosage information and "Maximum Strength" explanation:

Figure 2. Back of Reformulated Maximum Strength Robitussin Box

Image materials not available for display.

Al Haj switched from Regular Strength Robitussin to Maximum Strength Robitussin after reading the "Maximum Strength" label and assuming that Maximum Strength Robitussin would be more effective than Regular Strength Robitussin. Doc. 160 at ¶¶ 65-67; Doc. 142 at ¶¶ 28, 32-33; Doc. 105-17 at 33, 104. The market research that Pfizer commissioned in connection with Project Accelerate had concluded that "quite a few" consumers would be willing to spend more on maximum strength medication because they perceive it to "work better and providemore value" than regular strength medication. Doc. 160 at ¶¶ 33, 41, 43 (emphasis omitted) (quoting Doc. 146-54 at 9; Doc. 146-50 at 4). At her deposition, Al Haj did not recall any explanation on Maximum Strength Robitussin's packaging of what "Maximum Strength" means. Doc. 142 at ¶ 27; Doc. 105-17 at 53.

Al Haj did not compare in detail the Regular Strength and Maximum Strength packaging when she decided to purchase Maximum Strength Robitussin. Doc. 142 at ¶ 29; Doc. 105-17 at 52. She did not read the dosage information on the Maximum Strength box until she returned home after her purchase. Doc. 142 at ¶¶ 36-37; Doc. 105-17 at 58-59. Even after learning that the recommended dose was 20 ml, she purchased Maximum Strength Robitussin at least two more times despite knowing that its 20 ml dose was twice the recommended dose of Regular Strength Robitussin. Doc. 142 at ¶ 37.

Al Haj's family members felt better after taking Maximum Strength Robitussin. Id. at ¶ 34. Around the time she filed this lawsuit, Al Haj switched to a competitor's product, Delsym Cough+Chest Congestion DM. Id. at ¶ 41; Doc. 105-17 at 39. Delsym has the same recommended dose (20 ml) and the same amount of active ingredients per dose (20 mg DXM Hbr and 400 mg guaifenesin) as reformulated Maximum Strength Robitussin. Doc. 142 at ¶¶ 42-43. Al Haj's receipts show that she typically paid $9.96 for Maximum Strength Robitussin and between $11.97 and $16.99 for a smaller bottle of Delsym. Id. at ¶¶ 44-45.

Discussion

Al Haj claims that Pfizer's marketing and sale of Maximum Strength Robitussin violated the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"), 815 ILCS 505/1 et seq., and Illinois unjust enrichment law. Doc. 1 at ¶¶ 55-66.

I. ICFA Claim

The ICFA "is a regulatory and remedial statute intended to protect consumers, borrowers, and business persons against fraud, unfair methods of competition, and other unfair and deceptive business practices." Cohen v. Am. Sec. Ins. Co., 735 F.3d 601, 608 (7th Cir. 2013) (quoting Robinson v. Toyota Motor Credit Corp., 775 N.E.2d 951, 960 (Ill. 2002)). The ICFA prohibits "deceptive business practices" as well as "business practices that, while not deceptive, are unfair." Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 575 (7th Cir. 2012) (internal quotation marks omitted); see also Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 737 (7th Cir. 2014) (recognizing that sales practices "that [allegedly] 'mislead,' 'misrepresent,' and 'defraud'" support a deceptive conduct claim). Al Haj brings only a deceptive conduct...