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Cooper v. CVS Caremark Corp.

Court of Appeals of Louisiana, First Circuit

June 17, 2015


On Appeal from The 22nd Judicial District Court, Parish of Washington, State of Louisiana Trial Court No. 101426 The Honorable Allison H. Penzato, Judge Presiding

James C. Percy Ryan E. Johnson David P. Borghardt Baton Rouge, Louisiana Attorneys for Defendants/ Appellees, Louisiana CVS Pharmacy, L.L.C., CVS Pharmacy, Inc., and CVS Caremark Corporation

William R. Grimm (admitted pro hac vice) Providence, Rhode Island Jennifer N. Willis William P. Buckley Gary J. Gambel Michael D. Letourneau Hansford P. Wogan New Orleans, Louisiana Attorneys for Plaintiff/ Appellant, Jean Cooper



In this proceeding, a party who purchased expired allergy medicine filed suit against the retailer and certain related entities, seeking injunctive relief, damages, and class certification. The trial court granted summary judgment to the defendants dismissing all claims, and the plaintiff appeals. Finding that the plaintiff failed to present sufficient evidence to warrant injunctive relief, damages, or class certification, we affirm.


Jean Cooper purchased over-the-counter allergy medicine at a CVS store; however, before consuming any of the medicine, she noticed that the expiration date on the product had passed. Cooper did not request a refund, could not remember if she complained to the store, did not take any of the medicine, and, by her own admission, did not suffer any damages as a result of the purchase.

Cooper filed a petition against several CVS entities, including CVS Caremark Corporation, Louisiana CVS Pharmacy, L.L.C., and CVS Pharmacy (collectively "CVS"), alleging that the defendants had "a long history of selling out-of-date medications, baby formula, and food" and that her purchase of the expired allergy medicine had "exposed her to health risks." Cooper requested injunctive relief to remedy "violations of law" and an order requiring CVS "to comply with the law by ceasing to sell expired products, " to notify purchasers of the "true characteristics of the products sold, " and to preserve all records evidencing the sale of expired products. Cooper sought certification of her suit as a class action and requested that she be confirmed as the representative of the putative class. In addition to the injunctive relief, Cooper requested an award of damages to her and the class.

The defendants answered, denied a history of selling expired products, and alleged that they make substantial efforts to keep expired products off their shelves. CVS also affirmatively pled that the expiration date was clearly printed on the packaging of the product purchased, that Cooper failed to give them an opportunity to repair the alleged defect through a refund or replacement product, and that Cooper did not sustain any damages.

After the parties conducted discovery, CVS filed a motion for summary judgment asserting that the defendants were entitled to judgment as a matter of law, dismissing the suit in its entirety. CVS maintained that Cooper did not have legal standing to pursue injunctive relief and could not prove irreparable injury, because her claims were based exclusively on past purchases, and she admitted that she did not intend any future purchases of over-the-counter medicines at a CVS store. In support of the summary dismissal of the claim for damages, CVS cited admissions by Cooper in her deposition that she did not have any damages and that she did not tender the expired product for a refund or replacement. CVS also argued that the expiration date was clearly marked on the product package. The exhibits in support of the motion included excerpts from the deposition of Cooper and an affidavit from an executive with CVS Caremark Corporation, who confirmed that all CVS stores provide a refund or replace any product purchased after the expiration, "sell by, " or "use by" date stamped on the product.

In opposition to the motion for summary judgment, Cooper asserted that she was not required to prove irreparable injury to obtain injunctive relief, because the sale of expired over-the-counter medication by CVS violated a prohibitory law, 21 U.S.C.A. Section 331, of the Food, Drug, and Cosmetic Act (FDCA). Section 331, in pertinent part, prohibits the introduction or delivery into interstate commerce of an "adulterated" drug. Cooper argued that expired over-the-counter medication is an adulterated drug and relied on 21 U.S.C.A. Section 351(a)(2)(B), which provides that a drug shall be deemed to be adulterated if

it is a drug and the methods used in, or the facilities or controls used for, its manufacture, processing, packing, or holding do not conform to or are not operated or administered in conformity with current good manufacturing practice to assure that such drug meets the requirements of this chapter as to safety and has the identity and strength, and meets the quality and purity characteristics, which it purports or is represented to possess ....

Although this definition is limited to actions that do not conform to "current good manufacturing practice" (emphasis added), Cooper maintained that the provision should nevertheless be interpreted to include the retail sale of expired over-the-counter medication. She cited no jurisprudence or regulations in support of this position, but Cooper did introduce a "Memo" from the Food and Drug Administration, Center for Drug Evaluation and Research, captioned 'HUMAN DRUG CGMP NOTES." The Memo is dated June of 1995 and addresses a number of questions, including whether the sale of expired over-the-counter drugs by a retailer violates the FDCA. In somewhat contradictory fashion, the Memo initially provides that "[w]e regard expired drug ...

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