An Arizona man who used Ultimate Cleanse is suing the manufacturer and the store where he bought the product. The complaint (shown below) charged that the product caused perforation of his colon that required hospitalization and two operations. The product contains cascara segrada, a harsh laxative that in 2002 was banned as an ingredient in over-the-counter drugs. It can still be legally sold as a dietary supplement, but there is no logical reason to use it. The surgeon who treated the man believes that the perforation was caused by the cascara segrada content of the product.
Infomercial Watch warns against the use of Dual Action Cleanse, a similar product.
IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF MARICOPA
|MIKE FEASTER, a single man,
IRWIN NATURALS d/b/a NATURE’S SECRET, a foreign corporation licensed to do business in Arizona, VITAMIN WORLD, INC., an Arizona Corporation, John and Jane Does 1-10; Black and White Corporations 1-10, fictitiously named,
|Case No.: CV
Plaintiff, by and through counsel undersigned alleges as follows:
1. Plaintiff is, and at all times mentioned in this complaint was, a resident of Maricopa County, State of Arizona. All events complained of herein occurred in Maricopa County, Arizona. Venue is proper in Maricopa County, Arizona.
2. Defendant Irwin Naturals d/b/a Nature’s Secret (hereinafter “Nature’s Secret”) is, and at all times mentioned in this Complaint was, a corporation organized and existing under the laws of the State of California with its principal place of business located in Los Angeles, California.
3. Defendant, Vitamin World, Inc. is, and at all times mentioned in this complaint was, a corporation organized and existing under the laws of the State of Arizona, with its principle place of business located at Ronkonkoma, New York.
4. John and Jane Does 1-10, are fictitiously named and Plaintiffs will seek to amend their Complaint when the true name of these Defendants are revealed.
5. Black and White Corporations 1-10, are fictitiously named and Plaintiffs will seek to amend their Complaint when the true name of these Defendants are revealed.
6. At all times mentioned in this complaint, Defendant Nature’s Secret was engaged in the business of manufacturing, distributing, and selling a dietary supplement know as Ultimate Cleanse for resell to the general public.
7. At all times mentioned herein, Defendant Vitamin World owned and operated a retail store known as Vitamin World located at 4320.W. Anthem Way SP 480, Phoenix, Arizona located in Maricopa County, and sold to the general public dietary supplements manufactured by the Defendant Nature’s Secret, including Ultimate Cleanse.
8. Sometime prior to November 28, 2007, Defendant Nature’s Secret, manufactured, distributed, and sold to Defendant Vitamin World for resale to the general public a box of Ultimate Cleanse which was intended for consumption by the ultimate consumer without any substantial change in the condition it was in when manufactured. distributed, and sold, and without any inspection on the part of the consumer.
9. On November 28,2007, Plaintiff purchased from Defendant Vitamin World a box of Ultimate Cleanse.
10. At the time Plaintiff purchased the box of Ultimate Cleanse from Defendant Vitamin World, it was in the same condition it was in when Defendant Nature’s Secret manufactured, distributed and sold it to Defendant Vitamin World.
11. At the time that Plaintiff purchased the box of Ultimate Cleanse from Defendant Vitamin World, it was unfit for human consumption, and unreasonably dangerous to the consumer because it contained cascara sagrada. The product was unreasonably dangerous to consumers because it had no benefit to the consumer and significant side effects.
12. Plaintiff consumed several of the Ultimate Cleanse tablets in accordance with the directions printed on the box, and other printed materials provided by Nature’s Secret.
13. As a direct result of the unwholesome and unfit condition of the Ultimate Cleanse tablets, Plaintiff became seriously ill, suffered extreme physical pain due to a perforated colon, had to be hospitalized, undergo multiple surgeries, incur hospital and medical expenses and loss of earning capacity, all to Plaintiff’s damage in an amount in excess of the minimum jurisdiction of this court.
STRICT PRODUCTS LIABILITY AGAINST ALL DEFENDANTS
14. All allegations set forth above are incorporated by reference as if fully set forth herein.
15. Defendant Nature’s Secret and Defendant Vitamin World were involved in the manufacturing, distribution and sale of an unreasonably dangerous product, Ultimate Cleanse. The Defendants are strictly liable in tort for the harm done to Plaintiff as a result of his using Ultimate Cleanse.
NEGLIGENCE AGAINST ALL DEFENDANTS
16. All allegations set forth above are incorporated by reference as if fully set forth herein.
17. At all pertinent times, Defendant Nature’s Secret and Defendant Vitamin World owed a duty to exercise reasonable care to the general public and to the Plaintiff concerning the manufacturing, distribution and sale of Ultimate Cleanse.
18. The actions by Defendants constitute negligence because Ultimate Cleanse has no benefits and significant side effects.
19. As a proximate result of the actions of the Defendants, Plaintiff sustained injuries including a perforated colon which lead him to be hospitalized ,and to under go multiple surgeries.
20. As a further proximate result of the negligence of the Defendants, Plaintiff experienced great pain and suffering.
BREACH OF IMPLIED WARRANTY OF FITNESS
AND MERCHANTABILITY BY ALL DEFENDANTS
21. All allegations set forth above are incorporated by reference herein.
22. Defendants advertised, distributed, and sold Ultimate Cleanse as a completely prepared product ready for immediate human consumption which was beneficial to detoxify the body. As a result, Defendants impliedly warranted to the general public, including Plaintiff, that Ultimate Cleanse was wholesome and fit for human consumption and was safe for use as an herbal supplement.
23. Plaintiff purchased Ultimate Cleanse from Defendant Vitamin World in reliance on the implied warranties described above.
24. Contrary to the implied warranties given by Defendants, Ultimate Cleanse was unfit for human consumption in that the product had no benefit and substantial side effects.
25. As a direct result of using Ultimate Cleanse and Defendants’ breach of implied warranties of fitness and merchantability, Plaintiff suffered a perforated colon, suffered severe physical pain and mental suffering, had to undergo multiple surgeries , incurred hospital and medical expense, and lost the opportunity to work, all to Plaintiff’s damage in an amount in excess of the minimum jurisdiction of this court.
PRAYER FOR RELIEF
WHEREFORE Plaintiff prays for judgment against Defendants as follows:
A. For general damages in a reasonable amount for the pain, suffering and distress experienced by Mike Feaster;
B. For special damages in an amount to be proven at trial for the medical and related expenses and for his loss of earnings related to the time he was recovering from his injuries;
C. For the taxable costs incurred in bringing this lawsuit;
D. For Plaintiff’s reasonable attorneys fees; and
E. For such other and further relief as the Court deems appropriate.
DATED this ____ day of March, 2009.
TREON & SHOOK, PLLC
Douglas G. Shook
2700 N. Central Ave., Suite 1000
Phoenix, AZ 85004
Ph: (602) 265-7100
This page was posted on May 20, 2010.