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Fleet Phospho-Soda Lawsuit Filed in Georgia

Posted in Misc. Drugs

The following lawsuit alleges that Fleet’s Phospho-Soda caused James Yearwood to develop nephrocalcinocis:

22. That Plaintiff is informed and believes that by February 2005, Defendant Fleet knew of risks of kidney failure associated with the use of Fleet Phospho-soda in geriatric patients, in patients treated with angiotensin receptor blocking medications, and in patients treated with diuretic medications.

23. That Plaintiff is informed and believes that despite knowing the risks to certain consumers, Fleet nevertheless heavily marketed directly to healthcare providers the utilization of Fleet Phospho-soda as a bowel cleanser prior to colonoscopy.

24. That Plaintiff is informed and believes that Fleet heavily marketed the utilization of Fleet Phospho-soda as a bowel cleanser prior to colonoscopy without fully warning or instructing of the risks to certain consumers, including but not limited to geriatrics, persons being treated with angiotensin receptor blocking drugs, or persons being treated with diurectic medications.

COME NOW the Plaintiff, James Hubert Yearwood, and by and through the undersigned counsel file this Complaint and show as follows:

PARTIES

1. That Plaintiff is a citizen and resident of Tennessee.

2. That Plaintiff is informed and believes that C.B. Fleet Holding Company, Inc., (“Fleet Holding”) and C.B. Fleet Company, Inc., (“Fleet”) are corporations organized and existing under the laws of Virginia, where they are headquartered and have their principal place of business.

3. That Plaintiff is informed and believes that Fleet is a wholly owned subsidiary and instrumentality of Fleet Holding through which Fleet Holding at all relevant times herein did business in the State of Georgia.

4. That Plaintiff is informed and believes that Fleet and Fleet Holding are commonly owned, and operated, sharing corporate officers, shareholders and corporate location.

5. That Plaintiff is informed and believes that Fleet operates as part and parcel of Fleet Holding; that there is no true distinction between the two corporations and their activities.

6. That Plaintiff is informed and believes that Fleet and Fleet Holding are one corporate entity with no distinction between the two.

7. That Plaintiff is informed and believes that Fleet and Fleet Holding are responsible for the acts and omissions of their employees, agents, and contractors as if they were one corporate entity.

8. That in the alternative, Fleet is the alter ego of Fleet Holding; that Fleet is dominated and controlled by Fleet Holding, is subservient to Fleet Holding, manifests no separate interests of its own, and functions solely to achieve the goals of Fleet Holding (hereinafter, Fleet and Fleet Holding shall collectively be referred to as “Fleet”).

9. That at all relevant times herein Fleet was acting by and through its agents and employees who were at all such times acting within the course and scope of their agency and employment with Fleet; that Fleet is responsible for the acts and omissions of its agents and employees pursuant to the law of respondeat superior.

10. That at all times mentioned herein Fleet was doing business in all counties in Georgia, and continue to do business in all counties in Georgia; that the products produced and distributed by Fleet and Fleet Holding were intended to reach and did reach consumers in all counties in Georgia.

JURISDICTION AND VENUE

11. That the matter in controversy is between citizens of different states.

12. That the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs.

13. That jurisdiction is proper pursuant to 28 U.S.C. § 1332.

14. That venue is proper pursuant to 28 U.S.C. § 1391.

FACTUAL ALLEGATIONS

15. That Plaintiff James Hubert Yearwood's (herein after referred to as “Plaintiff”) physician directed Plaintiff to administer to himself Fleet Phospho-soda on or about August 24, 2008, as a bowel cleansing purgative in preparation for a colonoscopy.

16. That Plaintiff was approximately 66 years old.

17. That Plaintiff administered to himself the Fleet Phospho-soda as directed.

18. Shortly thereafter, Plaintiff suffered severe kidney damage.

19. That Plaintiff is informed and believes that his kidney damage was caused by administration of the Fleet Phospho-soda that he was directed to administer to himself by his physician and which resulted in a physical ailment known as nephrocalcinosis.

For A First Cause of Action

(Negligence – Product Liability)

20. That Plaintiffs incorporate paragraphs 1-19 as if stated herein verbatim.

21. That Defendant Fleet manufactured, marketed, distributed, and sold the Fleet Phospho-soda product consumed by Plaintiff.

22. That Plaintiff is informed and believes that by February 2005, Defendant Fleet knew of risks of kidney failure associated with the use of Fleet Phospho-soda in geriatric patients, in patients treated with angiotensin receptor blocking medications, and in patients treated with diuretic medications.

23. That Plaintiff is informed and believes that despite knowing the risks to certain consumers, Fleet nevertheless heavily marketed directly to healthcare providers the utilization of Fleet Phospho-soda as a bowel cleanser prior to colonoscopy.

24. That Plaintiff is informed and believes that Fleet heavily marketed the utilization of Fleet Phospho-soda as a bowel cleanser prior to colonoscopy without fully warning or instructing of the risks to certain consumers, including but not limited to geriatrics, persons being treated with angiotensin receptor blocking drugs, or persons being treated with diurectic medications.

25. That Plaintiff is informed and believes that Fleet knew or should have known that physicians were performing colonoscopies and directing patients in the administration of Fleet Phospho-soda; that Fleet provided such physicians little or no instruction or warning about what patients would be at risk in using the product or how to safely administer the product to certain patients, including but not limited to geriatrics, those treated with angiotensin receptor blocking drugs, or patients being treated with diuretic medications.

26. That Plaintiff is informed and believes that Defendant Fleet made no effort to inform consumers of Fleet's Phosphoda of risks associated with those products in certain consumers, including but not limited to geriatric persons, in persons treated with angiotensin receptor blocking medications, and in persons treated with diuretic medications.

27. That Plaintiff is informed and believes that Defendant Fleet was negligent, careless, wanton, willful, reckless, and grossly negligent in at least one of the following ways:

a. In failing to adequately warn physicians and consumers of known risks associated with the use of its products;

b. In failing to adequately instruct in the proper administration of its products;

c. In marketing products that it knew or should have known were unsafe for geriatrics, persons being treated with angiotensin blocking medications, or persons being treated with diuretic medications;

d. In failing to advise, recommend, advertise or inform about products for bowel preparation that it knew or should have known were safer for geriatrics, persons being treated with angiotensin blocking medications, or persons being treated with diuretic medications;

e. In failing to adequately advise or inform physicians and patients of safe practices and methods for using Fleet Phospho-soda or Fleet enema;

f. In failing to instruct or warn physicians and patients about the warning signs and symptoms of phosphate nephropathy to allow for proper monitoring and timely diagnosis and treatment.

28. That Defendant Fleet manufactured, marketed, distributed and sold Fleet Phospho-soda and Fleet enema in a manner that it knew or should have known was indifferent to the health and well-being of persons who used these products.

29. That as a direct and proximate result of the acts and omissions of Defendant Fleet, Plaintiff has suffered severe kidney damage; that the acts and omissions of these Defendants have caused and will cause him to endure unnecessary physical pain and suffering, mental anguish and emotional distress, physical disability, loss of enjoyment of life, and to incur medial, hospital, and care taking expenses.

30. That Plaintiff is informed and believes that he is entitled to recover compensation from Defendant Fleet for his actual damages and to have a jury impose punitive damages as allowed by law.

For a Second Cause of Action

(Breach of Warranty)

31. That Plaintiffs incorporate paragraphs 20-30 as if stated herein verbatim.

32. That in marketing, promoting, distributing, and selling Fleet Phospho-soda Fleet impliedly warranted that the products were of good and merchantable quality and were fit for their intended purpose.

33. That the implied warranties made by Defendant Fleet that the components were of good and merchantable quality and were fit for their intended purpose were breached when the products were used and caused injuries and losses.

34. That Plaintiff is informed and believes that as a direct and proximate result of the breaches of warranty by Defendant Fleet, he has suffered severe kidney damage; that the breach of warranty by this Defendant has caused and will cause him to endure unnecessary physical pain and suffering, mental anguish and emotional distress, physical disability, loss of enjoyment of life, and to incur medial, hospital, and care taking expenses.

35. That Plaintiff is informed and believes that he is entitled to recover actual damages from Defendant Fleet for his personal injuries and losses.

For a Third Cause of Action

(Strict Tort Liability)

36. That Plaintiffs incorporate paragraphs 31-35 as if stated herein verbatim.

37. That the Fleet Phospho-soda and Fleet enema manufactured, sold, and distributed by Defendant Fleet were in a defective, unreasonably dangerous condition when consumed by Plaintiff beginning on or about August 24,2008.

38. That Defendant Fleet is in the business of selling such products for pre-colonoscopy bowel preparation.

39. That Plaintiff is informed and believes that the Fleet Phospho-soda were expected to and did reach Plaintiff without substantial change in the condition in which they were sold; that these were products that Defendant Fleet knew would be consumed for bowel preparation by a patient under the direction of a treating physician.

40. That the injuries, damages, and losses suffered by Plaintiff were directly and proximately caused by the defective and unreasonably dangerous condition of the Fleet Phospho-soda which was manufactured, sold, and distributed by Defendant.

41. That Plaintiff is informed and believes that as a direct and proximate result of the unreasonably dangerous condition of the products manufactured, sold, and distributed by Defendant Fleet, Plaintiff suffered severe kidney damage; that the defective and unreasonably dangerous product manufactured, sold, and distributed by this Defendant has caused and will cause him to endure unnecessary physical pain and suffering, mental anguish and emotional distress, physical disability, loss of enjoyment of life, and to incur medial, hospital, and care taking expenses.

42. That Plaintiff is informed and believes that he is entitled to recover actual damages from Defendant Fleet for her personal injuries and losses pursuant to the law of strict tort liability for unreasonably dangerous products.

WHEREFORE, the Plaintiffs demand a jury trial and judgment against the Defendants for actual damages, punitive damages, and for such further relief as the Court deems entitled.