Lawsuit Filed in Colorado Against C.B. Fleet, the Manufacturer of Phospho-Soda

By Justinian Lane on July 11, 2009

In December of 2008, the FDA issued an advisory alert regarding C.B. Fleet, the manufacturer of Phospho-Soda. Phospho-Soda was a product used as a bowel purgative, often recommended to patients who were going to undergo a colonoscopy. There have been many reports of individuals suffering permanent damage to their kidneys after using this product just one time. Here’s the text of a Phospho-Soda lawsuit that was filed in Colorado in April of 2009.

PARTIES PLAINTIFF

1. Plaintiff Scott Lundy is a 58 year old male who, at all times relevant to the events described herein, was a resident of El Paso County, Colorado residing 12270 Jones Park Ct., Colorado Springs, Colorado 80921.

2. Plaintiff Mitzi Lundy is Scott Lundy's wife who, at all times relevant to the events described herein, has been married to and resided with Scott Lundy in El Paso County at 12270 Jones Park Ct., Colorado Springs, Colorado 80921.

PARTIES DEFENDANT

3. Defendant C.B. Fleet Company, Incorporated is a closely-held corporation that, upon information and belief, is incorporated in the State of Virginia, with its corporate headquarters located in Lynchburg, Virginia at 4615 Murray Place, PO Box 11349, Lynchburg, Virginia 24506.

JURISDICTION AND VENUE

4. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §1332 (diversity jurisdiction). The amount in controversy exceeds $75,000.00 exclusive of interest and costs. There is complete diversity of citizenship between Plaintiffs and the Defendant. The Plaintiffs are residents of El Paso County at 12270 Jones Park Ct., Colorado Springs, Colorado 80921 and the Defendant is a Virginia corporation with its principal place of business in the State of Virginia.

5. Venue in this Court is proper pursuant to 28 U.S.C. § 1391 in that a substantial part of the events or omissions giving rise to the claims asserted herein occurred in this District, and Defendant is subject to personal jurisdiction in this District.

6. At all times relevant hereto, Defendant was the manufacturer, marketer, distributor and/or seller of Fleet Phospho-Soda oral saline laxative and is identified as follows:

a. Defendant C.B. Fleet Company, Inc., is a closely-held corporation that, upon information and belief, is incorporated in the State of Virginia, with its corporate headquarters located in Lynchburg, Virginia at 4615 Murray Place, PO Box 11349, Lynchburg, Virginia 24506.

7. At all times relevant to the Plaintiffs' Complaint, Defendant manufactured, promoted, distributed and sold for profit an Oral Saline Laxative product known as Phospho-soda(R). Defendant promoted, distributed, and sold Phospho-soda(R) as a “laxative, for the relief of occasional constipation” and “purgative, for use as a part of a bowel cleansing regimen in preparation for surgery, x-ray or endoscopic examination.”

8. At all times relevant hereto, the Defendant actually knew of the defective nature of its product as herein set forth, yet continued to design, manufacture, market, distribute and sell their product so as to maximize sales and profits at the expense of the general public's health and safety in conscious disregard for the foreseeable harm caused by this product. Defendant's conduct exhibits such an entire want of care as to establish that its actions were a result of fraud, ill will, recklessness, grow negligence or willful and intentional disregard to the Plaintiffs' individual rights, and hence punitive damages are appropriate.

GENERAL ALLEGATIONS RELEVANT TO ONE OR MORE CLAIMS

9. At all times relevant to the Plaintiffs' Complaint, C.B. Fleet Holding Company, Incorporated and/or C.B. Fleet Company, Incorporated (collectively “Fleet”) manufactured, promoted, distributed, and sold for profit a Sodium Phosphate Oral Solution product known as Phospho-soda(R) through interstate commerce, including in El Paso County, Colorado. Fleet so manufactured, promoted, distributed, and sold Phospho-soda(R) as a “laxative, for the relief of occasional constipation” and “purgative”, for use as a part of a bowel cleansing regimen in preparing for surgery, x-ray or endoscopic examination.”

10. On or about April 18, 2007, at the direction of his Gastroenterologist, Sue M. Mitchell, M.D. of the Pikes Peak Endoscopy and Surgery Center, 1699 Medical Center Point, Colorado Springs, Colorado, Plaintiff purchased two 1.5 oz (45 ml) packages of Phospho-soda(R) (the “Product”) at Walgreens pharmacy at 350 N. Union Boulevard, Colorado Springs, Colorado in preparation for a colonoscopy to be performed on April 19, 2007.

11. Plaintiff used the Phospho-soda(R) as directed by Dr. Mitchell – ingesting 1.5 oz. of Fleet Phospho-soda(R) between the hours of 4 PM and 6 PM on April 18, 2007 by placing 1 tablespoon of Phospho-soda(R) in each of three 10 oz. glasses of clear liquid and drinking one 10 oz. glass every 30 minutes over two hours and on the day of his colonoscopy, April 19, 2009, by taking a second 1.5 oz. of Phospho-soda(R) by placing 1 tablespoon of the Phospho-soda(R) in each of three 10 oz. glasses of clear liquids.

12. Plaintiff followed Dr. Mitchell's further specific direction to take the doses of Phospho-soda(R) twelve hours apart and that he continue to drink one 10 oz. glass of clear liquid each hour up until two hours before his colonoscopy.

13. The Phospho-soda(R) packaging contained no warnings regarding kidney damage, kidney or renal failure, or risk to persons in Plaintiffs age group. Plaintiff was not contraindicated for the use of Phospho-soda(R) on April 18, 2007 and April 19, 2009, as directed by his physician and as intended by the Defendant, for his bowel preparation.

14. Plaintiff underwent a colonoscopy on April 19, 2007. Following his colonoscopy, Plaintiff began to experience lethargy, loss of appetite, and significant physical weakness. His symptoms persisted following the colonoscopy and a visit with his family physician following his colonoscopy showed that he was suffering from Acute Renal Failure.

15. Plaintiff was referred to a nephrologist, who rendered a diagnosis of Acute Renal Failure, Chronic Kidney Disease Stage IV/V and anemia of kidney failure.

16. Plaintiff's creatinine level continues to be elevated well outside the normal range. He suffers Chronic Kidney Disease Stage IV/V and anemia as a result of his use of his ingestion of Fleet(R) Phospho-soda(R) in preparation for his April 19, 2007 colonoscopy.

17. Prior to his use of Phospho-soda(R), Plaintiff's renal function was normal – as measured on February 15, 2007, it was 1.1, well within the range of normal (0.5-1.5).

18. At no time prior to his April 19, 2007 colonoscopy had any of Plaintiff's health care providers informed him that he suffered from kidney disease.

19. As a direct consequence of his use of Phospho-soda(R), Plaintiff sustained permanent injury and impairment, lives in a constant state of anxiety and uncertainty, and is unsure whether he will require renal replacement therapy.

20. That is, Plaintiff has suffered personal injuries and harm, pain and suffering, economic loss and damages, has been required to pay for necessary health care, attention and services along with incidental and related expenses or forego necessary health care, attention and services, requires monitoring of the injuries and harm he has suffered, will be required to pay for additional necessary health care, attention, and services along with additional incidental and related expenses to monitor his condition, or forgo such necessary health care, attention and services.

21. Fleet caused Plaintiff's injuries, damages and or losses by failing, in its design, formulation, manufacture, testing, packaging, labeling, advertising, marketing, promotion, supply, sale and/or distribution of and warnings about Phospho-soda(R), to do the following:

a. Accompany the product with adequate, complete and appropriate warnings regarding all the possible adverse side effects about which Fleet knew or should have known, including renal injury, death and risks related to age, associated with the use of Phospho-soda(R) as a “purgative, for use as a part of a bowel cleansing regimen in preparing for surgery, x-ray or endoscopic examination”;

b. Accompany the product with information accurately reflecting the nature, extent, symptoms, scope, or severity of such side effects;

c. Accompany the product with information accurately reflecting that alternative bowel cleansing products were safer and more effective, to include the failure to provide the same instructions it provides to foreign purchasers/consumers of its Phospho-soda(R) product;

d. Provide intended consumers and health care professionals with adequate, complete and proper use instructions that accurately and fully identified the appropriate dosing interval and hydration required to take Phospho-soda(R) safely, and about which Fleet knew or should have known;

e. Perform responsible, ethical, adequate and reliable pre-clinical, clinical and postmarketing testing of the safety of using Phospho-soda(R) as a “purgative, for use as a part of a bowel cleansing regimen in preparing for surgery, x-ray or endoscopic examination” in that responsible, ethical, adequate and reliable testing would have shown that the use of Phospho-soda(R) for this purpose presented the risk of serious injury to the intended consumers of the Product;

f. Adequately report on the results of testing regarding the safety of Phospho-soda(R) as a “purgative, for use as a part of a bowel cleansing regimen in preparing for surgery, x-ray or endoscopic examination” that had been or were in the process of being performed;

g. Accurately communicate information on its Phospho-soda(R) product to the U.S. Food and Drug Administration (FDA) by recklessly, falsely and deceptively representing or knowingly omitting, suppressing and/or concealing material facts known to Fleet regarding the safety and efficacy of Phospho-soda(R) such that, had the FDA or its advisory committee members known of such facts, Phospho-soda(R) would never have been approved for sale to consumers as an over-the-counter “purgative, for use as a part of a bowel cleansing regimen in preparing for surgery, x-ray or endoscopic examination” and no physician would have been able to direct his or her patients, such as Plaintiff, to purchase and use the over-the-counter product Phospho-soda(R) for this purpose;

h. Correct misrepresentations and omissions regarding the safety and efficacy of Phospho-soda(R) despite its knowledge of the growing acceptance of and reliance of consumers and health care professionals on its misinformation, and did so because the prospect of profits on Phospho-soda(R) outweighed the health and safety of consumers, including Plaintiff;

i. Comply with its post-manufacturing duty to warn, which arose when Fleet knew, or with reasonable care should have known, that consumers, such as Plaintiff, were being directed to use Phospho-soda(R) without being provided the complete information that was known to Fleet or receiving adequate warnings of the true risks of side effects; and

Discontinue the marketing of Phospho-soda(R) to health care professionals and consumers, including Plaintiff, as a “purgative, for use as a part of a bowel cleansing regimen in preparing for surgery, x-ray or endoscopic examination,” despite the fact that it knew or should have known that Phospho-soda(R) caused unreasonable, dangerous side effects and that safer and more effective alternative preparation methods and treatments were available.

20. Despite the foregoing litany of failures, Fleet continued to aggressively promote and sell the product, primarily as a “purgative, for use as a part of a bowel cleansing regimen in preparing for surgery, x-ray or endoscopic examination” and, in particular, as the ‘low volume’ alternative to products made by other manufacturers in an attempt to create and/or maintain its share of the purgative bowel cleansing product market.

21. Fleet knew or should have known that users of Phospho-soda(R) as a “purgative, for use as a part of a bowel cleansing regimen in preparing for surgery, x-ray or endoscopic examination” would suffer foreseeable injuries as a result of these failures.

22. Phospho-soda(R) as manufactured, sold and/or supplied by Fleet was defective and unreasonably dangerous because, after Fleet knew or should have known of the risk of injury and death from Phospho-soda(R), Fleet failed to provide adequate warnings about and instructions on the use of the product and failed to adequately test the safety of the product and report on the results of tests regarding product safety that had been or were in the process of being performed.

23. The Phospho-soda(R) manufactured, sold and/or supplied by Fleet was defective and unreasonably dangerous because it was designed and formulated such that the foreseeable risks exceeded the benefits associated with the product's use as a “purgative, for use as a part of a bowel cleansing regimen in preparing for surgery, x-ray or endoscopic examination”

24. The Phospho-soda(R) manufactured, sold and/or supplied by Fleet was defective and unreasonably dangerous because it was designed and formulated such that it was more dangerous and less effective than available alternatives including, but not limited to, the products NuLytely(R) and GoLytely(R), both of which are manufactured and distributed by Braintree Laboratories, Inc., and available only by prescription.

25. The Phospho-soda(R) manufactured, sold and/or supplied by Fleet was defective and unreasonably dangerous because it was designed and formulated such that it was more dangerous than Fleet's own alternative product, known as the Accu Prep(R) kit, which contains Fleet's Sodium Phosphate Oral Solution – identical both in volume and character – to that in Fleet's Phospho-soda(R) product, except that such solution is packaged in pre-measured doses with use instructions and warnings reflective of Fleet's knowledge about the dangers of its Phospho-soda(R) product.

26. The Phospho-soda(R) manufactured, sold and supplied by Fleet was defective at the time it was sold and/or left Fleet's control. Further, the Phospho-soda(R) was expected to reach the user of consumer without substantial change in the condition in which it was so manufactured, sold and/or supplied.

27. The Phospho-soda(R) purchased by Plaintiff reached his without substantial change in the condition in which it was manufactured, sold and/or supplied by Fleet.

28. At the time of Plaintiff's purchase of Phospho-soda(R) sold by Fleet, Fleet expressly warranted that Phospho-soda(R) was safe and well tolerated by patients studied and therefore was safe for consumers who ingested Phospho-soda(R), including Plaintiff.

29. At the time of Plaintiff's purchase of Phospho-soda(R) sold by Fleet, Fleet impliedly warranted that Phospho-soda(R) was of merchantable quality.

30. At the time of Plaintiff's purchase of Phospho-soda(R) sold by Fleet, Fleet impliedly warranted that Phospho-soda(R) was fit for the particular purpose of a “purgative, for use as a part of a bowel cleansing regimen in preparing for surgery, x-ray or endoscopic examination.”

31. The information disclosed to the public by Fleet and the warranties it made were knowingly or recklessly false and made with the intent of creating a false impression about Phospho-soda(R) as a “purgative, for use as a part of a bowel cleansing regimen in preparing for surgery, x-ray or endoscopic examination,” and inducing the consuming public, including Plaintiff, into buying and using Phospho-soda(R) for such purpose, a course of action that Plaintiff would not have taken had the actual facts been known.

32. Fleet has voluntarily accepted and retained profits from the purchase of its Phospho-soda(R) product as a “purgative, for use as a part of a bowel cleansing regimen in preparing for surgery, x-ray or endoscopic examination,” from the public, including Plaintiff, with full knowledge and awareness that, as a result of its wrongdoing, Plaintiff and other consumers did not receive Phospho-soda(R) of the quality, nature fitness, or value that had been represented by Fleet or that they could reasonably expect.

33. Plaintiff did not receive a safe and effective product for which she paid, but instead suffered personal injury and damage as a result of the use of Phospho-soda.

COUNT ONE STRICT PRODUCT LIABILITY

34. Plaintiff incorporates by reference all preceding paragraphs as if fully set forth here and further allege as follows.

35. Fleet is the manufacturer of the Sodium Phosphate Oral Solution product known as Phospho-soda(R);

36. Fleet was engaged in the business of selling Phospho-soda(R) for resale, use or consumption;

37. Fleet sold Phospho-soda(R);

38. The Phospho-soda(R) was defective and, because of the defect, the Phospho-soda(R) was unreasonably dangerous to a person who might reasonably be expected to use, consume, or be affected by the Phospho-soda(R);

39. The Phospho-soda(R) was defective at the time it was sold by Fleet or left its control;

40. The Phospho-soda(R) was expected to reach the user or consumer without substantial change in the condition in which it was sold;

41. The Phospho-soda(R) did reach the user or consumer without substantial change in the condition in which it was sold;

42. Plaintiff was a person who would reasonably be expected to use, consume or be affected by the Phospho-soda(R);

43. Plaintiff suffered injuries, damages and losses; and

44. The defect in the Phospho-soda(R) was the cause of the Plaintiff's injuries, damages and losses.

WHEREFORE, Plaintiff seeks judgment against Defendant for injuries, damages and losses in an amount to be proven at trial, including incidental, consequential, special, statutory and/or other damages, if appropriate, plus the costs and disbursements of this action, reasonable attorney fees, pre-judgment and post-judgment interest, and such other and further relief as to this court deems just.

COUNT TWO STRICT PRODUCT LIABILITY FOR MISREPRESENTATION

45. Plaintiff incorporates by reference all preceding paragraphs as if fully set forth here and further allege as follows.

46. Fleet sold the Sodium Phosphate Oral Solution product known as Phospho-soda(R);

47. Fleet was engaged in the business of selling the Phospho-soda(R) for resale, use or consumption;

48. Fleet misrepresented facts concerning the character or quality of the Phospho-soda(R) that would be material to potential purchasers or users of the product;

49. The misrepresentation was made to potential purchasers or users as members of the public at large;

50. As a purchaser or user, Plaintiff reasonably relied on the misrepresentation;

51. Plaintiff was a person who would reasonably be expected to use, consume or be affected by the Phospho-soda(R); and

52. Plaintiff had injuries, damages and losses caused by his reasonable reliance on the misrepresentations.

COUNT THREE NEGLIGENCE

53. Plaintiff incorporates by reference all preceding paragraphs as if fully set forth here and further allege as follows.

54. Fleet had a duty to exercise reasonable care in the design, formulation, manufacture, testing, packaging, labeling, advertising, marketing, promotion, supply, sale and/or distribution of and warnings about Phospho-soda(R), including the duty to assure that the product did not cause users to suffer from unreasonable, dangerous side effects and injury;

55. Fleet willfully, wantonly and negligently breached that duty;

56. Plaintiff suffered injuries, damages and losses;

57. Fleet's negligence caused of the Ms. Mudd's injuries, damages and losses.

COUNT FOUR NEGLIGENT MISREPRESENTATION CAUSING PHYSICAL HARM

58. Plaintiff incorporates by reference all preceding paragraphs as if fully set forth here and further allege as follows.

59. Fleet willfully, wantonly and negligently gave false information to Plaintiff;

60. Plaintiff relied upon such information; and

61. This reliance was a cause of physical harm to the Plaintiff.

COUNT FIVE MANUFACTURER'S LIABILITY BASED ON NEGLIGENCE

62. Plaintiff incorporates by reference all preceding paragraphs as if fully set forth here and further allege as follows.

63. Fleet is the manufacturer of the Sodium Phosphate Oral Solution product known as Phospho-soda(R);

64. Fleet was negligent by failing to exercise reasonable care to prevent the Phospho-soda(R) from creating an unreasonable risk of harm to the person or property of one who might reasonably be expected to use, consume or be affected by the Phosphosoda(R) while it was being used in the manner Fleet might have reasonably expected;

65. Plaintiff was one of those persons Fleet should reasonably have expected to use, consume or be affected by the Phospho-soda(R); and

66. Plaintiff suffered injuries, damages and losses that were caused by Fleet's negligence, while the Phospho-soda(R) was being used in a manner Fleet should reasonably have expected.

COUNT SIX BREACH OF EXPRESS WARRANTY UNDER U.C.C.

67. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth here and further allege as follows.

68. Fleet sold the Phospho-soda(R);

69. Fleet expressly warranted that Phospho-soda(R) is safe and well tolerated by patients studied and therefore was safe for consumers who ingested Phospho-soda(R), including Plaintiff;

70. Plaintiff is a person who was reasonably expected to use, consume or be affected by the Phospho-soda(R);

71. The Phospho-soda(R) was not as warranted;

72. This breach of warranty caused the Plaintiff injuries, damages and losses; and

73. Within a reasonable time after Plaintiff discovered or should have discovered the alleged breach of warranty, she notified Fleet of such breach.

COUNT SEVEN BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY

74. Plaintiff incorporates by reference all preceding paragraphs as if fully set forth here and further allege as follows.

75. Fleet sold the Phospho-soda(R);

76. Plaintiff is a person who was reasonably expected to use, consume or be affected by the product;

77. Fleet was a merchant with respect to the type of product involved herein;

78. The Phospho-soda(R) was not of merchantable quality at the time of sale;

79. This breach of warranty caused Plaintiff injuries, damages and losses; and

80. Within a reasonable time after Plaintiff discovered or should have discovered the alleged breach of warranty, she notified Fleet of such breach.

COUNT EIGHT BREACH OF IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE

81. Plaintiff incorporates by reference all preceding paragraphs as if fully set forth here and further allege as follows.

82. Fleet sold the Phospho-soda(R);

83. Fleet impliedly warranted the Phospho-soda(R) to be suitable and/or fit for the particular purpose of a purgative, for use as a part of a bowel cleansing regimen in preparing for surgery, x-ray or endoscopic examination;

84. Plaintiff is a person who was reasonably expected to use, consume or be affected by the Phospho-soda(R);

85. The Phospho-soda(R) was not suitable and/or fit for the particular purpose for which it was warranted;

86. This breach of warranty caused Plaintiff's injuries, damages and/or losses; and

87. Within a reasonable time after Plaintiff discovered or should have discovered the alleged breach of warranty, she notified Fleet of such breach.

COUNT NINE FALSE REPRESENTATION

88. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth here and further allege as follows.

89. Fleet made false representations of past or present facts;

90. The facts were material;

91. Fleet made the representations knowing them to be false or it was aware that it did not know whether the facts were true or false;

92. Fleet made the representations with the intent that members of the public, including Plaintiff, would rely on the representations;

93. Plaintiff relied on the representation;

94. Plaintiff's reliance was justified; and

95. This reliance caused injuries, damages and losses to Plaintiff.

COUNT TEN NONDISCLOSURE AND/OR CONCEALMENT

96. Plaintiff incorporates by reference all preceding paragraphs as if fully set forth here and further allege as follows.

97. Fleet concealed past or present facts and/or failed to disclose past or present facts that it had a duty to disclose;

98. The facts were material;

99. Fleet concealed and/or failed to disclose such facts with the intent of creating a false impression of the actual facts in the minds of members of the public, including

20. Plaintiff;

100. Fleet concealed and/or failed to disclose the fact with the intent that the members of the public, including Plaintiff, take a course of action that might not be taken if the actual facts were known;

101. Plaintiff took such action or decided not to act relying on the assumption that the concealed and/or undisclosed facts did not exist or was different from what they actually were;

102. Plaintiff's reliance was justified; and

103. This reliance caused injuries, damages and losses to Plaintiff.

COUNT ELEVEN VIOLATION OF THE COLORADO CONSUMER PROTECTION ACT

104. Plaintiff incorporates by reference all preceding paragraphs as if fully set forth here and further allege as follows.

105. Fleet engaged in and/or caused others to engage in a deceptive trade practice with respect to its Phospho-soda(R) product;

106. The deceptive trade practice occurred in the course of Fleet's business;

107. The deceptive trade practice significantly impacted the public as actual or potential consumers of Fleet's Phospho-soda(R) product;

108. Plaintiff was an actual consumer of Fleet's Phospho-soda(R) product; and

109. The deceptive trade practice caused actual damages and/or losses to Plaintiff.

COUNT TWELVE UNJUST ENRICHMENT

110. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth here and further allege as follows.

111. A benefit was conferred on Fleet by the Plaintiff via payment for the Fleet Phospho-soda(R) product she purchased on or about February 8, 2005;

112. Fleet appreciated or realized the benefit; and

113. Fleet accepted the benefit under such circumstances that it would be inequitable for it to retain the benefit without payment of its value.

COUNT THIRTEEN LOSS OF CONSORTIUM

114. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth here and further allege as follows.

115. Fleet was negligent;

116. Plaintiff Scott Lundy was injured as a result of the Fleet's negligence;

117. Mr. Lundy and Plaintiff Mitzi Lundy were married at the time Mr. Lundy was injured; and

118. As a result of such injuries to Mr. Lundy, Plaintiff Mitzi Lundy also had a loss of her rights of consortium.

WHEREFORE, Plaintiff Mitzi Lundy seeks judgment against Defendant for injuries, damages and losses in an amount to be proven at trial, including incidental, consequential, special, statutory and/or other damages, if appropriate, plus the costs and disbursements of this action, reasonable attorney fees, pre-judgment and post-judgment interest, and such other and further relief as to this court deems just.

REQUEST FOR RELIEF

WHEREFORE, Plaintiffs Patricia Rothenbucher and Alan Rothenbucher demand judgment against the Defendants, and each of them, and request the following relief:

119. Compensatory damages to the Plaintiffs for past and future damages, including, but not limited to, pain and suffering for severe and permanent personal injuries sustained by the Plaintiffs, healthcare costs, medical monitoring, together with interest and costs as provided by law;

120. Punitive and/or exemplary damages for the wanton, willful, fraudulent, reckless, and indifferent acts of the Defendants, who demonstrated a complete disregard and reckless indifference for the safety and welfare of the public, and of the Plaintiffs, in an amount sufficient to punish Defendants and deter future conduct, together with interest, according to proof;

121. Awarding Plaintiffs reasonable attorneys' fees;

122. Awarding Plaintiffs the costs of these proceedings; and

123. Such other and further relief as this Court deems just and proper.

124. In addition, Plaintiffs reserve the right to amend their Complaint pursuant to Fed. Rule Civ. P. 15.

JURY DEMAND

Plaintiff demands trial by jury on all issues so triable.

DATED this 8th day of April 2009.

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Lawsuit Filed in Colorado Against C.B. Fleet, the Manufacturer of Phospho-Soda

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