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.