Pa. Federal Judge Voids Class Suit Over Sale of Expired Products

A Philadelphia federal judge has declined to certify a nationwide class action on behalf of consumers who unwittingly bought expired products from the national drugstore chain Rite Aid.

Such a proceeding, which would include purchasers of everything from food products to baby formula to over-the-counter drugs, could require "mini-trials" before certification, U.S. District Judge John Fullam of the Eastern District of Pennsylvania said.

The court would then be required to "interpret the laws of numerous states as applied to a variety of dissimilar products," he said, as Rite Aid has more than 5,000 stores in 31 states.

Holding that plaintiff Terri Brennan could not support her proposed class action under the terms of the Class Action Fairness Act, Judge Fullam dismissed the suit for lack of jurisdiction, noting that both Brennan and Rite Aid are "residents" of Pennsylvania.

He said Brennan could not establish a "commonality of law" that would apply to all possible class members or that the circumstances of her purchase were typical of all others.

Any proof that she could provide to back her allegations against Rite Aid "will be inadequate to support a claim for other members of the plaintiff class," the judge said.

Brennan says she bought a box of nasal decongestant that had expired several months earlier.

She sued the Camp Hill, Pa.-based drug chain in 2008, alleging breach of warranty and violation of various state consumer protection laws. She seeks at least $5 million in damages.

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Representing Brennan are Sherrie Savett, Douglas Risen and Shoshanna Savett of Berger & Montague in Philadelphia.Eric Sitarchuk, Thomas Schmutz and Brad Nes of Morgan Lewis & Bockius in Philadelphia represent Rite Aid.