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Dangerous Drugs & Medical Devices News & Commentary on Prescription Drug & Medical Device Lawsuits

Lawsuit Against Makers of Phospho-Soda Filed in New York

Posted in Misc. Drugs

This was filed July 14th of 2009:

47. Defendants, through their promotion, labeling and selling of Fleet Phospho-soda, falsely, deceptively and materially misrepresented to Mrs. Blackman and her physician that Fleet Phospho-soda was a safe product when, in fact, it was not. For example, Defendants expressly misrepresented to Mrs. Blackman on the Fleet Phospho-soda packaging that “[w]hen taken as directed,” Fleet Phospho-soda's “laxative action is gentle, virtually free from the likelihood of gastrointestinal discomfort, or irritation, and is safe for the age groups indicated.” Mrs. Blackman was in one of the “indicated” age groups at the time she used the Fleet Phospho-soda.

48. Additionally, despite their knowledge of the unsafe and dangerous nature of Fleet Phospho-soda, Defendants recklessly, negligently and knowingly failed to provide needed, accurate, and adequate information regarding the health hazards of Fleet Phospho-soda to those such as Plaintiff who would reasonably and foreseeably use the product. For example, Defendants failed to advise Plaintiff of the proper amount of water or other liquids to drink after taking the Fleet Phospho-soda and otherwise failed to advise her of the health risks and hazards associated with the use of Fleet Phospho-soda.

49. Defendants intended that consumers, including Mrs. Blackman, would rely on Fleet's omissions and misrepresentations regarding Fleet Phospho-soda and the dangers and health risks associated with the product.

50. Defendants' omissions and representations were negligently, recklessly or knowingly false and misleading as to Plaintiff, and were made with the intent of inducing Plaintiff into purchasing and using Fleet Phospho-soda.

51. Plaintiff believed and justifiably relied upon defendants' omissions and representations and was thereby induced into purchasing and using Fleet Phospho-soda.
Plaintiff's Use of Fleet Phospho-soda

52. Plaintiff Barbara Blackman purchased and used Fleet Phospho-soda on or about November 15, 2007 in preparation for a scheduled colonoscopy, which was performed the following day.

53. Plaintiff used Fleet Phospho-soda as directed and for the purpose and in the manner for which it was normally intended.

54. Plaintiff could not by the exercise of reasonable care discover the defective nature and perceive the dangers of Fleet Phospho-soda.

55. As a direct and proximate result of using Fleet Phospho-soda, Plaintiff was diagnosed with kidney failure on or about February 6, 2008. As a result of her injuries, Plaintiff had her right kidney removed on April, 11, 2008.

GENERAL BACKGROUND AND OVERVIEW OF CLAIMS

1. This is an action for damages suffered by Plaintiff as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, distribution, labeling, and/or sale of the over-the-counter sodium phosphate-containing products known as Fleet(R) Phospho-soda(R) and Fleet(R) Phospho-soda(R) EZ-Prep(R) Bowel Cleansing System (hereinafter referred to collectively as “Fleet Phospho-soda”).

2. At all times material hereto, Fleet promoted, distributed, and sold Fleet Phospho-soda for “relief of occasional constipation” and bowel cleansing prior to medical procedures, such as colonoscopy.

3. As a result of the defective nature of Fleet Phospho-soda, those persons who were prescribed and ingested the product, including Plaintiff, have suffered and continue to suffer severe and permanent injuries, including acute phosphate nephropathy, acute renal failure, and chronic kidney disease.

4. Defendants could have and should have designed Fleet Phospho-soda in such a way as to eliminate the risk of significant injuries, such as acute phosphate nephropathy, acute renal failure, and chronic kidney disease.

5. Defendants knew of the significant risk of acute phosphate nephropathy, acute renal failure, and chronic kidney disease caused by use of Fleet Phospho-soda, but Defendants did not adequately and sufficiently warn consumers, including Plaintiff, or the medical community, of such risks.

6. Defendants failed to conduct adequate testing and safety monitoring of Fleet Phospho-soda, both before and after it began marketing, advertising, distributing and selling the product.

7. As a result of Defendant's actions, Plaintiff and her physicians were unaware, and could not have reasonably known or have learned through reasonable diligence, that Plaintiff had been exposed to the risks identified in this complaint, and that those risks were the direct and proximate result of Defendant's acts, omissions, and misrepresentations.

8. As a direct result, Plaintiff used Fleet Phospho-soda and has been permanently and severely injured. Plaintiff requires and will require ongoing medical care and treatment.

9. Consequently, Plaintiff seeks actual and punitive damages for her injuries resulting from her use of Fleet Phospho-soda, which has caused and will continue to cause Plaintiff to suffer pain, mental anguish and other injuries, as well as to incur significant expenses.

JURISDICTION AND VENUE

10. This Court has jurisdiction pursuant to 28 United States Code §1332, as complete diversity exists between Plaintiff and Defendant. Plaintiff is a citizen of the State of New York, and Defendant is incorporated and has its principal place of business in the State of Virginia. The amount in controversy exceeds seventy thousand dollars ($75,000.00), exclusive of interest and costs.

11. Defendants conduct substantial business within the state of New York, including the Southern District.

12. Venue in this action properly lies in the Southern District of New York pursuant to 28 United States Code Section 1391, as Defendants conduct substantial business within this district.

PARTIES

13. Plaintiff Barbara Blackman is a resident of Norwich, New York.

14. The Defendant, CB. Fleet Company, Inc. is a Virginia corporation, with its principal place of business in Lynchburg, Virginia.

15. The Defendant, CB. Fleet Holding Company, Inc. is a Virginia corporation, with its principal place of business in Lynchburg, Virginia.

16. At all times material hereto, the Fleet Defendants were engaged in the business of designing, developing, manufacturing, testing, packaging, promoting, marketing, distributing, labeling, and/or selling Fleet Phospho-soda.

17. Defendant is, and was at all relevant times, duly authorized to conduct business in the State of New York.

18. Defendant, either directly or through its agents, servants, and employees, regularly solicits and transacts business within the State of New York.

19. Defendant, at all relevant times, has sold and distributed Fleet Phospho-soda in the State of New York for “relief of occasional constipation” and bowel cleansing prior to medical procedures, such as colonoscopy.

20. Defendant derives substantial revenue from goods used or consumed in the State of New York.

21. Defendant expected, or should have expected, that its actions could or would have consequences within the State of New York.

SUBSTANTIVE ALLEGATIONS

22. Fleet Phospho-soda is an over-the-counter laxative.

23. A single dose of Fleet Phospho-soda (20-45mL) has long been used as a laxative to alleviate occasional constipation.

24. Forty-five (45) mL of Fleet Phospho-soda contains 8.1g of dibasic sodium phosphate and 21.6g of monobasic sodium phosphate.

25. The United States Food & Drug Administration (“FDA”) Tentative Final Monograph (“TFM”) for Laxative Products provides for a maximum oral dose of 7.56g of dibasic sodium phosphate and 20.2g of monobasic sodium phosphate in a 24-hour period.

26. During and prior to November 2007, Fleet promoted the use of two 45mL doses of Fleet Phospho-soda, separated by as little as 5 hours, as a safe and effective bowel cleansing regimen in preparation for colonoscopy and other medical procedures.

27. Ninety (90) mL of Fleet Phospho-soda contains 16.2g of dibasic sodium phosphate and 43.2g of monobasic sodium phosphate, more than double the maximum oral dose of phosphate salts allowed by the FDA's TFM for oral sodium phosphate laxatives.

28. Fleet has sought but failed to obtain an amendment of the TFM for oral sodium phosphate laxatives to include a dosing regimen of Fleet Phospho-soda consisting of two 45mL doses separated by a period less than 24 hours.

29. The FDA has repeatedly advised Fleet that the data upon which it relies in seeking to amend the TFM for oral sodium phosphate laxatives is insufficient to demonstrate the safety of more than a single 45mL dose of sodium phosphate oral solution in a 24-hour period.

30. The FDA has never amended the TFM for oral saline laxatives to include any dosing regimen of Fleet Phos-pho-soda greater than 45mL in a 24 hour period.

31. On December 11, 2008, the FDA advised that due to the dangers of acute phosphate nephropathy, Fleet Phospho-soda should not be used for bowel cleansing.

32. On December 11, 2008, Fleet issued a voluntary recall of Fleet Phospho-soda.

33. The information upon which the FDA based its December 11, 2008 advisory and, in particular, the risk of renal failure caused by ingestion of Fleet Phospho-soda as a bowel cleanser, were known to Fleet in and before November 2007.

34. Since the 1990s, Fleet has received numerous reports of serious injury, including acute phosphate nephropathy, acute renal failure, and chronic kidney disease following the use of more than a single 45mL dose of Fleet Phos-pho-soda in a 24 hour period.

35. At all relevant times, Defendants knew or should have known that taking more than a single 45mL dose of Fleet Phospho-soda could cause serious physical injury, including acute renal failure and chronic kidney disease, in persons such as Mrs. Blackman.

36. Fleet has suppressed and/or downplayed the risks of acute phosphate nephropathy, acute renal failure, and chronic kidney disease following the use of more than a single 45mL dose of Fleet Phospho-soda in any 24-hour period.

37. Fleet has falsely reassured physicians that taking two 45mL doses of Fleet Phospho-soda, separated by less than 24 hours, provides safe bowel cleansing.

38. Fleet, having placed the Fleet Phospho-soda purchased by Mrs. Blackman in the stream of commerce, was under a duty of reasonable care to give adequate warning of any dangers known to it or which in the use of reasonable care it should have known and which a user of Fleet Phospho-soda ordinarily would not discover.

39. Prior to November 2007, Fleet was aware that doctors were routinely directing patients to use Fleet Phospho-soda in accordance with Fleet's recommended bowel cleansing regimen, which consisted of two 45mL doses of Fleet Phospho-soda separated by less than 24 hours.

40. Prior to November 2007, the relevant entries in the Physicians Desk Reference failed to adequately warn the health risks of acute renal failure and chronic kidney disease, or any other risk of serious injury, associated with the use of two 45mL doses of Fleet Phospho-soda separated by less than 24 hours.

41. Prior to November 2007, the relevant entries in the Physicians Desk Reference directed doctors to dose Fleet Phospho-soda in accordance with the dosing regimens described in several different medical articles -all utilizing a dosing interval of less than 24 hours and one using a dosing interval as short as six hours.

42. The ingredients in Fleet Phospho-soda are absorbed into the blood stream.

43. Use of Fleet Phospho-soda could cause soft tissue calcification, primarily in the kidneys, heart, blood vessels, cornea, lungs, and gastric mucosa.

44. Safe alternative bowel cleansers which are not absorbed into the blood stream are commercially available.

45. Bowel cleansers that work with smaller amounts of dibasic and monobasic sodium phosphate are commercially available.

46. Bowel cleanser kits which better control and ensure proper hydration are commercially available.

47. Defendants, through their promotion, labeling and selling of Fleet Phospho-soda, falsely, deceptively and materially misrepresented to Mrs. Blackman and her physician that Fleet Phospho-soda was a safe product when, in fact, it was not. For example, Defendants expressly misrepresented to Mrs. Blackman on the Fleet Phospho-soda packaging that “[w]hen taken as directed,” Fleet Phospho-soda's “laxative action is gentle, virtually free from the likelihood of gastrointestinal discomfort, or irritation, and is safe for the age groups indicated.” Mrs. Blackman was in one of the “indicated” age groups at the time she used the Fleet Phospho-soda.

48. Additionally, despite their knowledge of the unsafe and dangerous nature of Fleet Phospho-soda, Defendants recklessly, negligently and knowingly failed to provide needed, accurate, and adequate information regarding the health hazards of Fleet Phospho-soda to those such as Plaintiff who would reasonably and foreseeably use the product. For example, Defendants failed to advise Plaintiff of the proper amount of water or other liquids to drink after taking the Fleet Phospho-soda and otherwise failed to advise her of the health risks and hazards associated with the use of Fleet Phospho-soda.

49. Defendants intended that consumers, including Mrs. Blackman, would rely on Fleet's omissions and misrepresentations regarding Fleet Phospho-soda and the dangers and health risks associated with the product.

50. Defendants' omissions and representations were negligently, recklessly or knowingly false and misleading as to Plaintiff, and were made with the intent of inducing Plaintiff into purchasing and using Fleet Phospho-soda.

51. Plaintiff believed and justifiably relied upon defendants' omissions and representations and was thereby induced into purchasing and using Fleet Phospho-soda.
Plaintiff's Use of Fleet Phospho-soda

52. Plaintiff Barbara Blackman purchased and used Fleet Phospho-soda on or about November 15, 2007 in preparation for a scheduled colonoscopy, which was performed the following day.

53. Plaintiff used Fleet Phospho-soda as directed and for the purpose and in the manner for which it was normally intended.

54. Plaintiff could not by the exercise of reasonable care discover the defective nature and perceive the dangers of Fleet Phospho-soda.

55. As a direct and proximate result of using Fleet Phospho-soda, Plaintiff was diagnosed with kidney failure on or about February 6, 2008. As a result of her injuries, Plaintiff had her right kidney removed on April, 11, 2008.

56. Plaintiff, as a direct and proximate result of using Fleet Phospho-soda, suffered severe mental and physical pain and suffering and has sustained permanent injuries and emotional distress.

57. Plaintiff would not have used Fleet Phospho-soda had Defendant properly disclosed the risks associated with the product.

COUNT I

Negligence

58. The foregoing paragraphs of this Complaint are realleged and incorporated by reference.

59. Defendants had a duty to consumers, including Plaintiff, to exercise reasonable care when designing, manufacturing, marketing, advertising, distributing, and selling Fleet Phospho-soda.

60. Defendants failed to exercise due care under the circumstances, and therefore breached their duty to Plaintiff.

61. Defendants' negligent acts and omissions, either directly or through their agents, servants, and employees, include, but are not limited to the following:

a. Designing, manufacturing, marketing, advertising, distributing, and selling Fleet Phospho-soda to consumers, including Plaintiff, without an adequate warning of the dangerous risks of Fleet Phospho-soda and without proper instructions to avoid harm caused by Fleet Phospho-soda;

b. Failing to exercise due care when advertising and promoting Fleet Phospho-soda; and

c. Failing to exercise ordinary care by conducting appropriate pre- and post-market testing and safety surveillance of Fleet Phospho-soda.

62. Although Defendants knew, or should have known, of Fleet Phospho-soda's adverse effects Defendants continued to negligently manufacture, market, advertise, distribute, and sell Fleet Phospho-soda to consumers, including Plaintiff, so as to maximize sale and profits at the expense of public health and safety in knowing, conscious and deliberate disregard of the foreseeable harm caused by the subject product.

63. Defendants knew, or should have known, that consumers, including Plaintiff would suffer injuries as a result of Defendants' failure to exercise ordinary care.

64. As a direct and proximate result of the Defendants' negligence and other wrongdoing and actions of Defendants described herein, Plaintiff has sustained serious and permanent injuries, and will continue to suffer injury, harm, and economic loss.

WHEREFORE, Plaintiff demands judgment against Defendants for compensatory and punitive damages, together with interest, costs of suit, attorneys' fees and all such other relief as the Court deems proper.

COUNT II

Strict Liability — Failure to Warn

65. The foregoing paragraphs of this Complaint are realleged and incorporated by reference.

66. Defendants designed, tested, manufactured, marketed, sold and/or distributed Fleet Phospho-soda. As such, they had a duty to warn the using public, including Plaintiff, of the health risks associated with using the subject product.

67. The subject product was under the exclusive control of Defendants and was unaccompanied by appropriate warnings regarding the health risks associated with its use, including acute renal failure and chronic kidney disease. The warnings given did not accurately reflect the risk, incidence, symptoms, scope or severity of such injuries to the consumer. The promotional activities of Defendants further diluted or minimized the warnings given with the product.

68. The subject product was defective and unreasonably dangerous when it left the possession of the Defendants in that it contained warnings insufficient to alert Plaintiff to the dangerous risks and reactions associated with it, including, but not limited to acute renal failure and chronic kidney disease. Even though Defendants knew or should have known of the risks and reactions associated with the subject product, it still failed to provide warnings that accurately reflected the signs, symptoms, incidence, scope, or severity of these risks.

69. Plaintiff used the subject product for its intended purpose, for “relief of occasional constipation” and bowel cleansing prior to medical procedures.

70. Plaintiff could not have discovered any defect in the subject product through the exercise of reasonable care.

71. Plaintiff would not have used Fleet Phospho-soda had Defendant properly disclosed the risks associated with the product.

72. Defendants, as manufacturers of over-the-counter health care products, are held to the level of knowledge of an expert in the field, and further, Defendants had knowledge of the dangerous risks and side effects of the subject product.

73. Plaintiff did not have the same knowledge as Defendants and no adequate warning was communicated to her.

74. Defendants had a continuing duty to warn consumers, including Plaintiff, of the dangers associated with the subject product. By negligently and/or wantonly failing to adequately warn of the dangers of use of the subject product, Defendants breached their duty.

75. Although Defendants knew of the defective nature of the subject product, they continued to design, manufacture, market, and sell it without providing accurate, adequate, and complete warnings concerning its use so as to maximize sales and profits at the expense of the public health and safety, in knowing, conscious, and deliberate disregard of the foreseeable harm caused by the subject product.

76. As a direct and proximate result of the Defendants' failure to adequately warn or other wrongdoing and actions of Defendants described herein, Plaintiff has sustained serious and permanent injuries, and will continue to suffer injury, harm, and economic loss.

WHEREFORE, Plaintiff demands judgment against Defendants for compensatory and punitive damages, together with interest, costs of suit, attorneys' fees and all such other relief as the Court deems proper.

COUNT III

Strict Liability — Defective Design

77. The foregoing paragraphs of this Complaint are realleged and incorporated by reference.

78. Defendants are the manufacturer, seller, distributor, marketer, and/or supplier of the subject product, which is defective and unreasonably dangerous to consumers.

79. The subject product was designed, manufactured, sold, distributed, supplied, marketed, and/or promoted by Defendants, and was expected to reach and did reach consumers, including Plaintiff, without substantial change in the condition in which it was manufactured and sold by Defendants.

80. The subject product was defective in its design and was unreasonably dangerous in that its foreseeable risks exceeded the benefits associated with its design or formulation.

81. Consumers, including Plaintiff, who have used Fleet Phospho-soda for “relief of occasional constipation” and bowel cleansing prior to medical procedures, have several alternative safer products available to treat this condition.

82. Although Defendants actually knew of the defective nature of the subject product, it continued to design, manufacture, market, and sell it so as to maximize sales and profits at the expense of the public health and safety, in knowing, conscious and deliberate disregard of the foreseeable harm caused by the subject product.

83. As a direct and proximate result of the design defects of the subject product, Plaintiff has sustained serious and permanent injuries, and will continue to suffer, injury, harm, and economic loss.

WHEREFORE, Plaintiff demands judgment against Defendants for compensatory and punitive damages, together with interest, costs of suit, attorneys' fees and all such other relief as the Court deems proper.

COUNT IV

Breach of Express Warranty

84. The foregoing paragraphs of this Complaint are realleged and incorporated by reference.

85. Defendants expressly represented to Plaintiff, other consumers, and the medical community that Fleet Phospho-soda was safe and fit for its intended purposes, of merchantable quality, did not produce any dangerous side effects, and was adequately tested.

86. Fleet Phospho-soda does not conform to Defendants' express representations because it is defective and unfit for its intended purpose, i.e. it is not safe, has numerous and serious side effects, and causes severe and permanent injuries.

87. The subject product was defective and unreasonably dangerous when it left the possession of the Defendants in that it contained warnings insufficient to alert Plaintiff to the dangerous risks and reactions associated with it, including acute renal failure and chronic kidney disease.

88. At all relevant times Fleet Phospho-soda did not perform as safely as an ordinary consumer would expect, when used as intended or in a reasonably foreseeable manner.

89. Plaintiff, other consumers, and the medical community relied upon Defendants' express warranties.

90. As a direct and proximate result of Defendants' express warranties of the subject product, Plaintiff has sustained serious and permanent injuries, and will continue to suffer, injury, harm, and economic loss.

WHEREFORE, Plaintiff demands judgment against Defendants for compensatory and punitive damages, together with interest, costs of suit, attorneys' fees and all such other relief as the Court deems proper.

COUNT V

Breach of Implied Warranty

91. The foregoing paragraphs of this Complaint are realleged and incorporated by reference.

92. Defendants designed, tested, manufactured, marketed, sold and/or distributed Fleet Phospho-soda.

93. At all relevant times, Defendants knew of the use for which Fleet Phospho-soda was intended and impliedly warranted the product to be safe and fit for such use.

94. Defendants were aware that consumers, including Plaintiff, would use Fleet Phospho-soda for “relief of occasional constipation” and bowel cleansing prior to medical procedures, and knew, or recklessly disregarded, that consumers, including Plaintiff, and the medical community relied upon its judgment and sensibility to only sell Fleet Phospho-soda if it was safe and fit for its intended use.

95. Defendants herein breached its implied warranty to consumers, including Plaintiff; Fleet Phospho-soda was not safe or fit for its intended use.

96. Consumers, including Plaintiff, and the medical community reasonably relied upon Defendants' implied warranty for Fleet Phospho-soda.

97. Fleet Phospho-soda reached Plaintiff without substantial change in the condition in which it was manufactured and sold by Defendants.

98. As a direct and proximate result of Defendants' implied warranties of the subject product, Plaintiff has sustained serious and permanent injuries, and will continue to suffer, injury, harm, and economic loss.

WHEREFORE, Plaintiff demands judgment against Defendants for compensatory and punitive damages, together with interest, costs of suit, attorneys' fees and all such other relief as the Court deems proper.

COUNT VI

Common Law Fraud

99. The foregoing paragraphs of this Complaint are realleged and incorporated by reference.

100. Defendants falsely and fraudulently represented to the medical community, and to the Plaintiff and the public in general, that Fleet Phospho-soda had been tested and found to be safe and effective for “relief of occasional constipation” and bowel cleansing prior to medical procedures.

101. Defendants knew, or should have known, that its representations were false yet it willfully, wantonly and recklessly disregarded its obligation to provide truthful representations regarding the safety and risks of Fleet Phospho-soda to consumers, including Plaintiff, and the medical community.

102. Defendants' representations were made with the intent of defrauding and deceiving consumers, including Plaintiff, and the medical community, with the intent of encouraging and inducing sales of Fleet Phospho-soda.

103. Defendants knowingly, consciously, and deliberately placed its financial gain above the rights and safety of Plaintiff and other consumers.

104. Defendants' fraudulent representations evinced its callous, reckless, willful, and depraved indifference to the health, safety, and welfare of consumers, including Plaintiff.

105. Plaintiff was unaware of the falsity of Defendants' representations and reasonably relied upon Defendant's representations, thereby developing kidney failure, resulting in the loss of her right kidney.

106. As a direct and proximate result of Defendants' fraudulent misrepresentation of the subject product, Plaintiff has sustained serious and permanent injuries, and will continue to suffer, injury, harm, and economic loss.

WHEREFORE, Plaintiff demands judgment against Defendants for compensatory and punitive damages, together with interest, costs of suit, attorneys' fees and all such other relief as the Court deems proper.

COUNT VII

Punitive Damages

107. The foregoing paragraphs of this Complaint are realleged and incorporated by reference.

108. Although Defendants knew or recklessly disregarded the fact that the subject product causes debilitating and potentially lethal side effects, Defendants continued to market the subject product to consumers, including Plaintiff, without disclosing these side effects.

109. Defendants knew of the subject product's defective nature, as set forth herein, but continued to design, manufacture, market, and sell it so as to maximize sales and profits at the expense of the health and safety of the public, including Plaintiff, in conscious and/or negligent disregard of the foreseeable harm caused by the subject product.

110. Defendants intentionally concealed or recklessly failed to disclose to the public, including Plaintiff, the potentially life-threatening side effects of the subject product to ensure their continued and increased sales. This intentional and/or reckless failure to disclose information deprived Plaintiff of the information necessary for her to weigh the true risks of using the subject product against the benefits.

111. Defendants' aforementioned conduct was committed with knowing, conscious, and deliberate disregard for the rights and safety of consumers such as Plaintiff, thereby entitling Plaintiff to punitive damages in an amount appropriate to punish Defendants from similar conduct in the future.

WHEREFORE, Plaintiff demands judgment against Defendants for compensatory and punitive damages, together with interest, costs of suit, attorneys' fees and all such other relief as the Court deems proper.

COUNT VIII

Violation of G.B.L. § 349

112. The foregoing paragraphs of this Complaint are realleged and incorporated by reference.

113. Defendants' misrepresentations and concealment of material fact constitute unconscionable commercial practices, deception, fraud, false pretenses, misrepresentation, and/or the knowing concealment, suppression or omission of material facts with the intent that others rely on such concealment, suppression, or omission in connection with the sale and advertisement of Fleet Phospho-soda.

114. Defendants engaged in the deceptive acts and practices alleged herein in order to sell a consumer product, Fleet Phospho-soda, to the public, including Plaintiff.

115. Defendants intentionally concealed facts known to it, as alleged herein, in order to ensure the increased sales of Fleet Phospho-soda.

116. Defendants' conduct, as alleged herein, was likely to mislead a reasonable consumer, such as Plaintiff, acting reasonably under the circumstances to believe that Fleet Phospho-soda was a safe treatment for “relief of occasional constipation” and bowel cleansing prior to medical procedures.

117. As a direct and proximate result of Defendants' actions, Plaintiff has sustained serious and permanent injuries, and will continue to suffer, injury, harm, and economic loss.

WHEREFORE, Plaintiff demands judgment against Defendants for compensatory and punitive damages, together with interest, costs of suit, attorneys' fees and all such other relief as the Court deems proper.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully prays of this Court and demands of Defendants as follows:

a. That Plaintiff be granted and recover actual damages incidental to her purchase and use of Fleet Phospho-soda in an amount to be determined at trial;

b. That Plaintiff be granted and recover treble and punitive damages;

c. That Plaintiff be granted pre-judgment and post-judgment interest;

d. That the costs of this action be taxed to Defendants;

e. That Plaintiff be granted reasonable attorneys' fees and costs as provided by law; and

f. For such other and further relief as the Court may deem just and proper.

JURY TRIAL DEMANDED

The Plaintiff demands a trial by jury on all issues.

Dated: July 14, 2009