There is an interesting lawsuit by Phillies reliever J.C. Romero who was suspended after testing positive for a banned substance. Romero is suing the manufacturer of 6-OXO Extreme supplement because it did not specify that it included androstenedione, which is prohibited by the Major League Baseball. He is suing Proviant Technologies and Ergopharm.
Romero was suspended for 50 games in the 2009 season and is alleging negligence, strict products liability, breach of implied warranties, intentional misrepresentation, negligent misrepresentation and a violation of the New Jersey Consumer Fraud Act. With the expected loss of $1.24 million, his compensatory damages are high and he is also seeking punitive damages.
This is an intriguing case. Romero is relying on part on the fact that, before the MLB All-Star Game in July 2008, he went to a Vitamin Shoppe and told the salesperson that he was a professional athlete and could not test positive on banned substances. He said that he relied on the advice of the person working in the shoppe — hardly an impressive “learned intermediary.”
It is also not clear why the companies should be concerned with a particularly small group of regulated professional athletes in a warning or why the substance, which is legal, would be defective because it might be used by such athletes. Likewise, it is not clear why such an over-the-counter product would have an implied warranty for professional athletes.
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I think this case may be heavily influenced by the results of the federal case filed by a handful of NFL players against StarCaps and set to begin June 15. That being said, I find it hard to believe that, given the nature of the federal governments stance towards supplements, any judge will find for Romero in this case.
IF MR. ROMERO IS HONEST ABOUT THIS WHOLE SITUATION, I HOPE HE WINS HIS CASE. I HAVE BEEN A PHILLIES FAN FOR 49 YEARS!!!!!GO PHILLIES!!!!!!!!!!!!!!!!!!!!!!!!!
The stimulant industry is such a joke at this point. If an ingredient was left off of a Hot Pocket package it would mean massive regulatory action against the company, but something clearly that is intended to and does have more serious effects goes nearly entirely unregulated.
Any chance the Tampa Bay Rays (who lost to Romero’s Phillies in the World Series) could intervene?
Dredd,
That was good.
There will be a lot supplemental briefs filed in this case.
If his allegations are correct and he informed the shop employee. Isn’t this no different than Hadley v Baxendale? The grist wheel case or Shirley McClain’s case.
Isn’t Res Ipsa Loquitor still the standard?