"Celebrex, Vioxx, Paxil, Avandia," Eisbrouch starts naming off just a few of drugs on the firm's list of actionable products. "We really go all the way back to Fen- Phen," Eisbrouch says, referring to the fad diet drug that killed people in the early 1990s.
Most recently, Eisbrouch has been gathering information on Hydroxycut, a very popular dietary supplement used by body builders and people looking to take off weight fast. The Federal Drug Administration (FDA) recently linked Hydroxycut, manufactured by a Canadian company called Lovate, to 23 cases of serious liver damage and at least one person is believed to have died, according the FDA.
Hydroxycut is made from a combination of herb extracts that mimic the body's hormones and speeds up the fat burning process. It was one of the most aggressively marketed diet supplements to hit consumers in years.
Because it was a dietary supplement and not a drug, it did not need FDA approval nor is it regulated by the FDA. However, Lovate has voluntarily recalled all 14 different types of Hydroxycut sold in the US since the reports of possible complications.
Eisbrouch's firm has not yet filed a complaint and he describes the litigation as "being in the very early stages".
"We are evaluating potential claims for injuries and getting confirmation of use by potential plaintiffs," Eisbrouch says. "The kind of potential problems with Hydroxycut include liver and kidney damage, cardiac arrest or stroke. These are types of problems people might have due to use of Hydroxycut."
Judging from the calls to Balkin & Eisbrouch's office in the Garden State, there may be many potential class members. "We have been running a national TV campaign for the last 3 or 4 weeks and we have been inundated with 50 to 100 calls a day," says Eisbrouch. "We have people who have visited doctors and been diagnosed with one of the conditions," he adds, "and we have medical information to show that doctors have diagnosed their condition as being related to Hydroxycut in some cases."
A Different Kind of Strategy Required
The potential case against Lovate will stand apart from similar litigation procedures that Eisbrouch has been involved in---mostly because it was sold over-the-counter, without a prescription.
What it means from Eisbrouch's viewpoint is that during any possible litigation process Lovate would not be able to rely on the traditional FDA defense. "That means Lovate could not say 'oh well, the FDA approved it so our liability is mitigated'," says Eisbrouch.
READ MORE Hydroxycut LEGAL NEWS
Retailers like Wal-Mart may have taken on more responsibility than they were aware of when they sold Lovate's Hydroxycut products. "The question will be, what they know and when did they know it," says Eisbrouch.
David Eisbrouch is a partner in the firm Balkin & Eisbrouch. Together with affiliated firms they represent people and their families who have been injured by the negligence or intentional act of someone else. The firm specializes in a wide range of cases including accidents, defective products, professional malpractice, toxic torts and finance and insurance fraud and misrepresentation.