SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES
MICHAEL DeCASTRO,
Plaintiff,
V
HERBALIFE INTERNATIONAL, INC., a Nevada Corporation HERBALIFE INTERNATIONAL OF AMERICA, INC., a Nevada corporation HERBALIFE INTERNATIONAL DISTRIBUTION, INC., a California corporation, HERBALIFE MANUFACTURING LLC, a Delaware limited liability company, and Does 1 through 100, inclusive, Defendants.
Case No: 350629Plaintiff,
V
HERBALIFE INTERNATIONAL, INC., a Nevada Corporation HERBALIFE INTERNATIONAL OF AMERICA, INC., a Nevada corporation HERBALIFE INTERNATIONAL DISTRIBUTION, INC., a California corporation, HERBALIFE MANUFACTURING LLC, a Delaware limited liability company, and Does 1 through 100, inclusive, Defendants.
COMPLAINT FOR DAMAGES
1) BREACH OF EXPRESS WARRANTY2) BREACH OF IMPLIED WARRANTY
3) STRICT LIABILITY
4) NEGLIGENCE
5) CONSPIRACY TO DEFRAUD
JURY TRIAL DEMANDED
Plaintiff Michael De Castro complains of Defendants and alleges as follows:
OVERVIEW
I. Plaintiff Michael DeCastro was-literally-a poster-boy for Herbalife. In 1994, he began using Herbalife products in an effort to lose weight. Herbalife products are dietary supplements containing a variety of herbs, nutrients, and vitamins that purportedly assist with dieting, health, and general well-being. The success of Plaintiffs weight loss while using Herbalife products was remarkable: he lost 75 pounds in just six months, and another 15 pounds before his weight settled at 170 pounds. Plaintiff continued for the next decade to ingest an array of Herbalife products in order to maintain his weight. For ten years, Plaintiff ingested as many as 13 different Herbalife products every day, many of them in dosages of multiple pills at a time, plus 15 or more different products that he used as needed. The dosages of Herbalife products Plaintiff used and the number of different products he used were within Herbalife’s recommended usage instructions. Indeed, Herbalife insisted that all of its products were safe to combine with other products as part of a complete weight management “program,” and urged its consumers to use the full array of its products regularly. Due to Plaintiff s rapid weight loss, his wife and daughter both began to use Herbalife products as well. The family followed Herbalife’s recommendations for a complete program, and their Herbalife program appeared so successful they were featured on the cover of an issue of Herbalife Journal for an article entitled “Weight Loss Is a Family Affair.”
2. Plaintiff could now be a poster-boy for just how dangerous Herbalife products are. A growing body of medical and scientific research shows a clear causal link between use of
Herbalife products and development of severe health problems, including liver disease. The connection is due to a number of hepatotoxic-i.e., toxic to the liver-ingredients included across Herbalife’s product line, and by Herbalife’s encouragement of using a broad array of products simultaneously, which amplifies the danger of hepatotoxins and creates the additional danger of ingesting otherwise safe nutrients in dangerous quantities.
In 2006, Plaintiff was diagnosed with Hepatocellular Carcinoma (“HCC”), a primary liver cancer, and Non-Alcoholic Steatohepatitis (“NASH”), a fatty liver disease. None of the normal causes of his liver disease are present: he does not drink or smoke, does not work with hepatotoxic chemicals, has never used illicit drugs or anabolic steroids, and has never had cirrhosis or viral hepatitis. Instead, Plaintiffs liver damage was caused by his decade-long use of Herbalife products while following Herbalife’s own usage recommendations. After undergoing partial hepatectomy (removal of the entire right lobe of his liver) and complete cholecystectomy (removal of his otherwise healthy gall bladder adjacent to the right liver lobe) in 2006, Plaintiff has suffered from debilitating surgical complications, including excruciatingly painful and paralyzing traumatic neuromas. In 2008, Plaintiff was diagnosed with the resurgence of numerous liver cancer tumors. He brings this action to recover damages caused by Herbalife’s intentionally deceptive conduct in marketing and selling products Herbalife knows to be dangerous but claims are safe and best used in massive quantities that only amplify the risk.
THE PARTIES
3. Plaintiff Michael De Castro is a resident of the State of California.4. Defendant HERBALIFE INTERNATIONAL, INC. is a corporation organized and existing under the laws of the State of Nevada with principal place of business in Los Angeles, California.
5. Defendant HERBALIFE OF AMERICA, INC. is a corporation organized and existing under the laws of the State of Nevada with principal place of business in Los Angeles, California.
6. Defendant HERBALIFE INTERNATIONAL DISTRIBUTION, INC. is a corporation organized and existing under the laws of the State of California with principal place of business in Los Angeles, California.
7. Defendant HERBALIFE MANUFACTURING LLC is a limited liability company organized and existing under the laws of the State of Delaware with principal place of business in Los Angeles, California.
8. Defendants HERBALIFE INTERNATIONAL, INC., HERBALIFE OF AMERICA, INC., HERBALIFE INTERNATIONAL DISTRIBUTION, INC., and HERBALIFE
MANUFACTURING LLC., collectively referred to herein as “HERBALIFE,” manufacture, produce, label, formulate, distribute, market, advertise, and sell dietary and nutritional supplements under the Herbalife brand name.
9. The true names and capacities, whether individual, corporate, associate, or otherwise, of Defendants DOE I through 100, inclusive, are at this time unknown to Plaintiff, who therefore sues said Defendants by such fictitious names. When the true names and capacities of said Defendants have been ascertained, Plaintiff will amend this complaint accordingly. Plaintiff is informed and believes, and thereon alleges, that each DOE Defendant is responsible for the events and happenings alleged below, and proximately caused injuries and damages to Plaintiff as alleged below.
10. Plaintiff is informed and believes, and thereon alleges, that each of the Defendants
named herein was the agent, employee, employer, partner, manager, controlling entity, or joint venture of the other Defendants, and in doing the things herein alleged was acting within the course and scope of such agency, employment, partnership, management, control, or joint venture with the full knowledge and consent of the other Defendants, and that at all times all employees and agents of Defendants acted with the advance knowledge or under the direction or with ratification of corporate officers who had the ability to bind the corporation.
PLAINTIFF’S ASSOCIATION WITH HERBALIFE
11. In 1994, Plaintiff started to use the HERBALIFE Thermojetics weight management system in an effort to lose weight and reduce his cholesterol. After using HERBALIFE products for six months, he had lost 75 pounds, dropping his weight from 260 pounds to approximately 185. Seeing Plaintiffs weight loss, Plaintiffs wife and daughter both began to use HERBALIFE products as well. Plaintiffs weight ultimately settled at approximately 170 pounds. Plaintiffs wife had lost 46 pounds and his daughter had lost 12 pounds while still growing.12. In order to maintain their weight, Plaintiff and his family continued to consume a variety of HERBALIFE products daily through approximately 2004. Plaintiff ingested 13 or more products every day, in varying dosages according to the instructions on the product label, and often supplemented his daily regimen with one or more additional supplements to be used “as needed.”
13. Plaintiff, with his wife and daughter, was featured on the cover of Volume 1416 of Herbalife Journal in an article titled “Weight Loss Is a Family Affair,” which documented the dramatic weight loss all three experienced in a short time using HERBALIFE products.
14. HERBALIFE sells and distributes its products through a network of independent
distributers using a multi-level marketing (MLM) structure. Plaintiff became an independent HERBALIFE distributor in order buy HERBALIFE products for himself and his family.
HERBALIFE PRODUCTS USED BY PLAINTIFF
15. From 1994 to 2004, Plaintiff regularly ingested the following HERBALIFEproducts:
a. 21-Day Herbal Cleansing Program. HERBALIFE marketed 21-Day Herbal Cleansing Program as a supplement for daily use over a 21-day period to “jumpstart” healthy digestion by providing healthy antioxidants, fruit roughage, and herbs. Plaintiff ingested 21-Day Herbal Cleansing Program daily for a 21-day period once each year according to the instructions on the product label throughout the subject time period.
b. Activated Fiber. HERBALIFE marketed Activated Fiber as a dietary fiber supplement to be used as part of a weight loss program to help create a sense of fullness and lower overall fat absorption. Plaintiff ingested Activated Fiber occasionally according to the instructions on the product label throughout the subject time period.
c. Advanced St. John’s Wort. HERBALIFE marketed Advanced St. John’s Wort as a supplement providing St. John’s Wort and other herbs to naturally enhance mood, promote mental health, increase energy, and promote well-being. Plaintiff ingested Advanced St. John’s Wort occasionally according to the instructions on the product label throughout the subject time period.
d. Aminogen. HERBALIFE marketed Aminogen as a supplement providing amino acids to assist in the digestion and assimilation of protein, and reduce bloating from a protein-rich diet. Plaintiff ingested Aminogen daily according to the instructions on the product label from approximately 1999 until 2004. Aminogen was also an ingredient in HERBALIFE’s Formula One protein drink, which Plaintiff consumed daily.
e. Cell-U-Loss. HERBALIFE marketed Cell-U-Loss as a supplement supporting the healthy appearance of skin and healthy detoxification through elimination of water, and helping maintain a healthy electrolyte and pH balance in the body. Plaintiff ingested Cell-U-Loss daily according to the instructions on the product label throughout the subject period.
f. Flora Fiber. HERBALIFE marketed Flora Fiber as a digestive health supplement providing fiber and bacteria cultures to restore a natural balance of gut flora. Plaintiff ingested Flora Fiber occasionally according to the instructions on the product label throughout the subject time period.
g. Formula One Protein Shake with Herbal Blend (aka Shapeworks). HERBALIFE marketed Formula One as a safe, healthy meal replacement used to satisfy hunger and manage weight while providing essential vitamins and minerals and promoting nutrition.
Plaintiff ingested Formula One daily according to the instructions on the product label throughout the subject period.
h. Formula Three Cell Activator Herbal Blend. HERBALIFE marketed Formula Three as a supplement supporting the body’s absorption of nutrients and promoting cellular energy production. Plaintiff ingested Formula Three daily according to the instructions on the product label throughout the subject period. Formula Two Multivitamin. HERBALIFE marketed Formula Two as a multivitamin providing vitamins, minerals, and herbs to support healthy weight management and overall good health and vitality. Plaintiff ingested Formula Two daily according to the instructions on the product label throughout the subject period.
Herbal Aloe. HERBALIFE marketed Herbal Aloe as a drink mix for relieving indigestion, improving nutrient absorption, enhancing intestinal health, and supporting the immune system. Plaintiff ingested Herbal Aloe occasionally according to the instructions on the product label throughout the subject period.
Herbal Throat Spray. HERBALIFE marketed Herbal Throat Spray as a blend of herbs to ease throat irritation or hoarseness. Plaintiff ingested Herbal Throat Spray occasionally according to the instructions on the product label throughout the subject time period.
HerbalifeIiue. HERBALIFE marketed Herbalifeline as a supplement providing Omega•3 fatty acids and other herbs to improve cardiovascular and joint health and maintain cholesterol and triglyceride levels. Plaintiff ingested Herbalifeline daily according to the instructions on the product label throughout the subject period.
Joint Support. HERBALIFE marketed Joint Support as a supplement providing glucosamine and other herbs and nutrients to relieve joint pain resulting from arthritis, wear and tear, or other injury. Plaintiff ingested Joint Support occasionally according to the instructions on the product label throughout the subject time period.
n. K8. HERBALIFE marketed K8 as a supplement containing the kava kava herb to reduce stress and facilitate relaxation. Plaintiff ingested K8 occasionally according to the instructions on the product label throughout the subject time period.
o. Male Factor. HERBALIFE marketed Male Factor as a supplement to increase stamina, vitality, and muscle strength for men. Plaintiff ingested Male Factor occasionally according to the instructions on the product label throughout the subject time period.
p. Mega Garlic. HERBALIFE marketed Mega Garlic as a supplement containing garlic and complementary herbs and vegetable extracts to increase cardiovascular and general health. Plaintiff ingested Mega Garlic occasionally according to the instructions on the product label throughout the subject time period.
q. N-R-G. HERBALIFE marketed N-R-G as a natural pick-me-up to boost energy and mental alertness. Plaintiff ingested N-R-G daily according to the instructions on the product label throughout the subject period.
r. Ocular Defense Formula. HERBALIFE marketed Ocular Defense Formula as a supplement containing herbs and nutrients to improve visual acuity and eye health. Plaintiff ingested Ocular Defense Formula occasionally according to the instructions on the product label throughout the subject time period.
s. Personalized Protein Powder. HERBALIFE marketed Personalized Protein
Powder as a whey and soy protein supplement to assist in building muscle mass and fighting hunger. Plaintiff ingested Personalized Protein Powder occasionally according to the instructions on the product label throughout the subject time period.
t. Relax Now. HERBALIFE marketed Relax Now as a supplement containing herbs and botanicals to promote a feeling of relaxation and well-being. Plaintiff ingested Relax Now occasionally according to the instructions on the product label throughout the subject time period.
u. Schizandra Plus. HERBALIFE marketed Schizandra Plus as a supplement containing a blend of herbs and vitamins that would fight free radicals and support immune and cellular health. Plaintiff ingested Schizandra Plus daily according to the instructions on the product label throughout the subject period.
v. Sleep Now. HERBALIFE marketed Sleep Now as a supplement containing herbs to improve sleep quality without resulting grogginess. Plaintiff ingested Sleep Now occasionally as instructed on the product label throughout the subject time period.
w. Super Echinacea. HERBALIFE marketed Super Echinacea as a supplement containing Echinacea and other herbs to improve immune function. Plaintiff ingested Super Echinacea occasionally according to the instructions on the product label throughout the subject time period.
x. Tang Kuei Plus. HERBALIFE marketed Tang Kuei Plus as a supplement to relax and soothe muscles to assist in stress management and to reduce aches and pains. Plaintiff ingested Tang Kuei Plus occasionally according to the instructions on the product label throughout the subject time period.
y. Thermo-Bond. HERBALIFE marketed Thermo-Bond a supplement that would support a weight-loss program by promoting a feeling of being full. Plaintiff ingested Thermo-Bond daily according to the instructions on the product label throughout the subject period.
z. Thermojetics Beige. HERBALIFE marketed Thermojetics Beige as a supplement containing an aquaretic herbal blend that would reduce fluid retention and promote good digestion and energy as part of a weight-loss program. Plaintiff ingested Thermojetics Beige daily according to the instructions on the product label beginning in approximately 1994 until HERBALIFE discontinued Thermojetics Beige late in the subject period.
aa. Thermojetics Energy Bars. HERBALIFE marketed Thermojetics Energy Bars as supplements providing protein, vitamins, and nutrients to boost energy, build muscle mass, and assist with weight loss and management. Plaintiff ingested Thermojetics Energy Bars occasionally according to the instructions on the product label throughout the subject period.
bb. Thermojetics Gold. HERBALIFE marketed Thermojetics Gold as a supplement to assist with weight loss as part of a high-protein, low-carbohydrate weight loss program. Plaintiff ingested Thermojetics Gold daily according to the instructions on the product label after HERBALIFE introduced it as a replacement for Thermojetics Beige and Thermojetics Green.
cc. Thermojetics Green. HERBALIFE marketed Thermojetics Green as a supplement to assist with weight loss, promote thermogenesis, and control appetite while producing an energy boost. The original formulation contained ephedra, but was replaced with an ephedra-free formulation after multiple highly- publicized deaths occurred as a result of use of ephedra. Plaintiff ingested Thermojetics Green daily according to the instructions on the product label beginning with the ephedra version in approximately 1994, and switching to the ephedra-fee version when HERBALIFE changed its product line, until HERBALIFE discontinued Thermojetics Green altogether late in the subject time period.
dd. Thermojetics Tea. HERBALIFE marketed Thermojetics Tea as a mix for producing an instant tea to raise metabolic rate while suppressing hunger. Plaintiff ingested Thermojetics Tea daily according to the instructions on the product label throughout the subject time period.
ee. Thermojetics Yellow. HERBALIFE marketed Thermojetics Yellow as a supplement providing chromium picolinate and garcinia cambogia to help regulate blood sugar and control food cravings. Plaintiff ingested Thermojetics Yellow daily according to the instructions on the product label throughout the subject time period.
ff. Total Control. HERBALIFE marketed Total Control as a supplement to assist with weight loss by helping to bum fat, block cravings, and boost energy. Plaintiff ingested Total Control occasionally according to the instructions on the product label throughout the subject time period.
gg. Ultimate Prostate Formula. HERBALIFE marketed Ultimate Prostate Formula as a supplement containing herbs and nutrients to improve urinary and prostrate health. Plaintiff ingested Ultimate Prostate Formula occasionally according to the instructions on the product label throughout the subject time period.
hh. Xtra Cal. HERBALIFE marketed Xtra Cal as a supplement containing calcium and other nutrients to improve bone and tooth strength. Plaintiff ingested Xtra Cal occasionally according to the instructions on the product label throughout the subject time period.
11. Zinc and Echinacea Throat Lozenges. HERBALIFE marketed Zinc and Echinacea Throat Lozenges as a sore throat remedy that improved throat health and the immune system. Plaintiff ingested Zinc and Echinacea Throat Lozenges occasionally according to the instructions on the product label throughout the subject time period.
16. HERBALIFE represented through its marketing and labeling that each Herbaiife product listed in Paragraph 15 was a safe and all-natural dietary supplement, not a drug, that provided health benefits to consumers including Plaintiff. HERBALIFE’s marketing included live presentations attended by Plaintiff, printed brochures and other material, and information provided online. HERBALIFE further represented through its marketing and labeling that each product was a safe, natural product containing natural food ingredients, and containing no harmful ingredients that could cause adverse or ill effects on consumers, including Plaintiff.
17. HERBALIFE also represented to Plaintiff through personal conversation with its employees, including its Chief Medical Officer, that HERBALIFE products were safe.
HEPATOTOXIC EFFECT OF HERBALIFE PRODUCTS
18. Plaintiff is informed and believes that at the time he ingested the HERBALIFE products listed in Paragraph 15, those products contained multiple known hepatotoxins including but not limited to: Aloe Vera; Bitter Orange (Citrus aurantium); Bladderwrack (Fucus vasiculosus); Cascara sagrada (Rhamnus purshiana); Chromium Picolinate; Comfrey (Symphytum ofJicinale); Dimethylethanolamine (aka “DMAE” and “Deanol”); Hydrazine sulfate; Ephedra (Ephedra sinica) (aka “rna huang”); Gambooge (Garcina gummi-gutta) (aka “Garcinia cambogia” or “brindleberry”); Green tea leaf extract (Camellia sinensis); Kava (Piper methysticum) (aka “kava-kava”); Pyrrolizidine alkaloids (a chemical compound contained in various herbs); Bala (Sida cordifolia) (aka “country mallow,” “heart-leaf sida,” or “flannel weed”); Soy phytoestrogen; Uva ursi (Arctostaphylos uva-ursi) (aka “Bearberry”); and Valerian (Valeriana ofJicinalis). Plaintiff ingested each and every one of these heptatotoxins contained in the HERBALIFE products he used.
19. The HERBALIFE products listed in Paragraph 15 underwent regular reformulation such that known hepatotoxins were added to and removed from the products in the course of Plaintiff s use of them. Today, products using the same names as those used by Plaintiff may not contain known hepatotoxins, but they contained such toxins in large quantities during the time of Plaintiff s use.
20. Plaintiff is informed and believes that his ingestion of the hepatotoxic ingredients contained in the HERBALIFE products listed in paragraph 15 was a substantial contributing cause of his injuries.
21. The HERBALIFE products listed in paragraph 15 contain various vitamins and nutrients that, when consumed in large quantities, are toxic and lead to injury, including liver injury. For example, multiple HERBALIFE products listed in Paragraph 15 contain Vitamin A and Niacin (Vitamin BJ). Vitamin A and Niacin are known to be toxic when consumed in large quantities, leading to injury including liver damage. Although no single product consumed by Plaintiff contained an unsafe level of Vitamin A or Niacin, Plaintiff is informed and believes that the combination of HERBALIFE products he consumed, all within HERBALIFE’s usage recommendations and guidelines, resulted in his consumption of unsafe levels of Vitamin A and Niacin over a prolonged period of years. Plaintiff is informed and believes that this prolonged consumption of unsafe levels of vitamins and nutrients including Vitamin A and Niacin were substantial contributing causes of his injuries.
22. Through its promotional materials, HERBALIFE recommends and encourages the use of multiple HERBALIFE products at the same time as part of a healthy diet. HERBALIFE does not provide any guidance about safely limiting the number of products used simultaneously, or warnings that ingestion of too many products at a time may lead to injury due to overdose on vitamins and nutrients.
23. Multiple scientific studies have identified a causal link between liver injury and consumption of HERBALIFE supplements. See, for example, Naga Chalasani, et a!., Causes, Clinical Features, and Outcomes From a Prospective Study of Drug-Induced Liver Injury in the United States (2008) 135 Gastroenterology 1925; Gary C. Chen, et al., Acute liver injury induced by weight-loss herbal supplements (2010) 2(11) World J. Hepatology 410; Eran Elinav, et al., ,Association between consumption of Herbalife nutritional supplements and acute hepatotoxicity (2007) 47 J. Hepatology 514; M. Johannsson, et al., Liver injury related to the use of Herbalife (2010) 96(3) Laeknabladid [The Icelandic Medical Journal] 167. Alain M. Schoepfer, et al., Herbal does not mean innocuous: Ten cases of severe hepatotoxicity associated with dietary supplements from Herbalife products (2007) 47 J. Hepatology 521; Felix Stickel, et al., Severe hepatotoxicity following ingestion of Herbalife nutritional supplements contaminated with Bacillus subtilis (2009) 50 J. Hepatology III. Notably, many of these studies state that HERBALIFE’s refusal to provide a complete public accounting of the ingredients and components of their products makes it impossible to identified all of the possible ingredients responsible for liver injury.
24. In or about 2004, HERBALIFE removed ephedra from its product line specifically because ephedra had been found to cause severe liver damage and extensive media coverage brought the dangers of ephedra to public light. However HERBALIFE replaced ephedra with other herbs containing chemicals similar to those in ephedra, which are themselves hepatotoxic.
25. Plaintiff is informed and believes that HERBALIFE products included soy protein that was contaminated with aflatoxins, which are known to cause liver damage. HERBALIFE never tested the soy protein it used in its products for the presence of aflatoxins. Plaintiff is informed and believes that his ingestion of HERBALIFE products including soy protein contaminated with aflatoxins was a substantial contributing cause to his injuries.
26. The risk of liver injury from consuming HERBALIFE products containing known
hepatotoxins is exacerbated by the fact that consumption of HERBALIFE products is often accompanied by rapid weight loss and weight gain. Rapid weight loss is the advertised effect of HERBALIFE products and the goal of HERBALIFE users, so it is a foreseeable consequence of using HERBALIFE products. However, rapid weight loss stresses the liver, making it more susceptible to injury from hepatotoxins and contributing to the development of NASH. Rapid weight loss also causes insulin resistance, which in turn leads to rapid weight gain. Such cyclical weight changes place ever more stress on the liver, increasing the risk of injury from consuming hepatotoxins.
27. Due to the known hepatotoxicity of HERBALIFE products and the resulting risk of severe liver injury, the Spanish Ministry of Health and Social Policy has recommended a ban on the sale of HERBALI FE products in Spain.
28. Due to findings that severe liver injury was caused by ingestion of an HERBALIFE product, HERBALIFE has stopped selling at least one product in Israel.
PLAINTIFF’S INJURIES
29. In or about 2006, Plaintiff was diagnosed with non-alcoholic steatohepatitis (“NASH”) and Hepatocellular Carcinoma (“HCC.”) NASH is the accumulation of fatty tissue in the liver accompanied by inflammation in individuals who drink little or no alcohol. Ingestion of hepatotoxins is a known cause of NASH.30. NASH is a precursor to HCC.
31. HCC is primary liver cancer; i.e., it is cancer originating in the liver, rather than metastasizing from other organs. HCC is usually caused by cirrhosis or viral hepatitis, but is also caused by NASH and exposure to hepatotoxins.
32. Plaintiff has never smoked tobacco or consumed alcohol. Plaintiff is not diabetic and has never been diagnosed with cirrhosis or viral hepatitis. Plaintiff has never worked with
hepatotoxic chemicals, never used illicit drugs, and never used anabolic steroids.
33. Plaintiff underwent a painful surgery in April 2006 and a difficult post-operative recovery due to severe post-op Post Traumatic Stress Disorder (PTSD), a significant intention tremor in his right hand, traumatic neuroma, and Deep Vein Thrombosis, all as a result of the surgery. Plaintiffs recovery was also difficult because he is hypersensitive to pain medication.
Plaintiff continues to suffer extensive pain from traumatic neuromas, ascites and edema
34. Tests following Plaintiffs 2006 surgery confirmed that the HCC had been successfully removed, although he continued treatment for NASH and his post-operative complications. In or about April 2009 Plaintiff was diagnosed with multiple HCC tumors in his liver.
35. The chronic pain, fatigue, and lack of energy resulting from Plaintiffs injuries have forced him to completely abandon a previously active lifestyle and have prevented him from working.
36. Plaintiff is informed and believes that his use of the HERBALIFE products listed in Paragraph IS from 1994 to 2004, and his resulting ingestion of the hepatotoxic ingredients contained in those products, listed in Paragraph 17, and his resulting ingestion of unsafe levels of vitamins and nutrients from using multiple HERBALIFE products in conformity with HERBALIFE’s usage guidelines, plus the HERBALIFE rapid weight loss diet plan that caused him to lose too much weight too quickly, were substantial contributing causes to his NASH and HCC.
37. Plaintiff did not learn of the connection between HERBALIFE products and liver disease until January 20 II during an unrelated Internet search. Prior to January 2011, Plaintiff had no reason to suspect that his use of HERBALIFE products had caused or contributed to his injuries. None of Plaintiffs doctors had ever suggested a connection between use of HERBALIFE products or the hepatotoxic ingredients therein and Plaintiffs development of NASH and HCC. Plaintiff had never seen media reports or medical studies relating use of HERBALIFE products or the hepatotoxic ingredients therein to liver injury prior to January.
FIRST CAUSE OF ACTION
For Breach of Express Warranty38. Plaintiff incorporates by reference and realleges all paragraphs previously alleged
39. HERBALIFE formulated, manufactured, distributed, and sold the products listed
7 in Paragraph 15 above.
40. HERBALIFE described its products as healthy and safe nutritional and dietary supplements that, when used in the manner HERBALIFE recommended, would assist in weight loss and promote overall health. HERBALIFE’s representations of the products as such were made to the public and to Plaintiff through general advertising, brochures and information presented to Independent Distributors, product packaging and labeling, instructions provided with the products, and training by HERBALIFE’s Medical Directors both in public meetings and in private conversations with Plaintiff. HERBALIFE represented that the products could-and should-be used for extended periods and in conjunction with one another. HERBALIFE also represented that its product-induced rapid weight loss plan was safe, effective, and healthy.
41. HERBALIFE’s description of the products as safe and healthy when used in compliance with HERBALIFE’s usage guidelines were false. The products were not healthy or safe when used in the manner HERBALIFE recommended.
42. Plaintiff relied on HERBALIFE’s false representations that the products were safe and healthy when he purchased and ingested them, and the failure of the products to be as warranted was a substantial factor in causing the harm to Plaintiff as alleged above.
SECOND CAUSE OF ACTION
For Breach of Implied Warranty43. Plaintiff incorporates by reference and realleges all paragraphs previously alleged herein.
44. Plaintiffs purchased the products listed in Paragraph 15 above from HERBALIFE.
At the time of that purchase, HERBALIFE was in the business of selling the products and by its occupation held itself out as having special knowledge and skill regarding the products’ composition, use, effects, and safety.
45. The products were not of the same quality as those generally acceptable in the trade and were not fit for the ordinary purposes for which nutritional and dietary supplements are used. They were unsafe and unhealthy when used in compliance with HERBALIFE’s usage guidelines in that such use presented a substantial risk of serious physical injury. Such risk is not generally acceptable for nutritional or dietary supplements and rendered the products unfit for use as nutritional or dietary supplements.
46. At the time that Plaintiff purchased the products, HERBALIFE knew or had reason to know that Plaintiff intended to use the products for the particular purpose of weight loss and then maintenance, as well as general nutrition and health, and that Plaintiff was relying on HERBALIFE’s skill and judgment to select or furnish products suitable for such purposes.
HERBALIFE marketed and represented the products to Plaintiff and to the general public as specifically formulated and selected to be safe, healthy, and effective for such purposes. Plaintiff justifiably relied on HERBALIFE’s skill and knowledge, but the products were not suitable for such purposes because using them as HERBALIFE recommended created an unreasonable risk of physical harm including liver injury because the products were not safe or healthy as impliedly warranted.
47. The failure of the products to have the expected qualities of being safe and healthy was a substantial factor in causing Plaintiffs damages as alleged above.
THIRD CAUSE OF ACTION
For Strict Liability for Defective Products48. Plaintiff incorporates by reference and realleges all paragraphs previously alleged herein.
49. Manufacturing defect: the products listed in Paragraph 15 above, which HERBALIFE formulated, manufactured, distributed, and sold, contained manufacturing defects when they left Defendants’ possession. Specifically, the products contained contaminants that
HERBALIFE did not intend to include in the products. Plaintiff used the products in a reasonably foreseeable manner as described above, and the contaminants in the products were a substantial factor in causing Plaintiffs injuries as described above.
50. Design defect (Customer Expectation Test): the products listed in Paragraph 15 above, which HERBALIFE formulated, manufactured, distributed, and sold, did not perform as safely as an ordinary consumer would have expected at the time of use. Plaintiff used the products according to HERBALIFE’s own usage guidelines, and the products were a substantial factor in causing his injuries as described above. Those injuries were reasonably foreseeable given the history of the products causing similar injuries to other consumers using the products under HERBALIFE’s usage guidelines.
51. Design defect (Risk-Benefit Test): Plaintiff used the products listed in Paragraph
27 15 above, which HERBALIFE formulated, manufactured, distributed, and sold, in a reasonably foreseeable way, since he followed HERBALIFE’s own established usage guidelines. The products were a substantial factor in causing the injuries to Plaintiff alleged above. The severity and likelihood of hann caused by using the products according to HERBALIFE’ s usage guidelines outweighed any benefit to Plaintiff, or to any consumer in general.
52. Failure to Warn: HERBALIFE knew or should have known that the products listed in Paragraph 15 above, which HERBALIFE fonnulated, manufactured, distributed, and sold, presented a potential risk to consumers of causing physical hann including liver injury, particularly when used in the quantities and combinations suggested and endorsed by HERBALIFE’s usage guidelines. That risk of physical harm induding liver injury presented a substantial danger to users of the products. Ordinary consumers would not have recognized the risk of physical harm including liver injury, in part due to HERBALIFE’s aggressive campaign to deny any such risk. HERBALIFE did not adequately warn of the potential risk of physical harm, or provide instruction to consumers of a safer manner in which to consume the products. That lack of sufficient instructions and warnings was a substantial factor in causing the injuries Plaintiff suffered as described above while using the products in a reasonably foreseeably manner consistent with HERBALIFE’ s usage guidelines.
FOURTH CAUSE OF ACTION
For Negligence53. Plaintiff incorporates by reference and realleges all paragraphs previously alleged herein.
54. HERBALIFE fonnulated, manufactured, distributed, and sold the products listed in Paragraph 15 above.
55. HERBALIFE failed to use the amount of care in formulating, manufacturing, distributing, and selling the products that a reasonably careful entity would use in similar circumstances to avoid exposing others to a foreseeable risk of harm. Specifically, HERBALIFE knew or should have known that its products as formulated presented or were likely to present a substantial risk of harm to individuals using them as provided by HERBALIFE’s usage guidelines, or HERB ALI FE failed to take reasonable precautions to ensure that its products as formulated did not present a substantial risk of harm to individuals using them as provided by the HERBALIFE’s usage guidelines. HERBALIFE’s failure to use such reasonable care was a substantial factor is causing the harm to Plaintiff described above.
56. HERBALIFE knew or reasonably should have known that use of its products in accordance with its usage guidelines presented or was likely to present a risk of physical harm including liver injury, and yet HERBALIFE failed to adequately warn consumers of that danger or to instruct on safe use of the products. A reasonable entity formulating, manufacturing, distributing, and selling dietary or nutritional supplements would have warned of the danger or instructed on safe use of the products. HERBALIFE’s failure to warn or instruct was a substantial factor in causing the harm to Plaintiff described above.
FIFTH CAUSE OF ACTION
For Conspiracy to Defraud57. Plaintiff incorporates by reference and realleges all paragraphs previously alleged herein.
58. HERB ALI FE represented to Plaintiff, to its independent distributors, and to the public through its marketing, advertising, product labeling, and product training that its products were safe and contributed to a healthy lifestyle. In fact, such representations were false because HERBALIFE products were unsafe because they contained hepatotoxic ingredients and their use created a substantial risk of severe liver injury. At the time they were made, HERBALIFE knew these representations to be false, or HERBALIFE made these representations recklessly and without regard for their truth, or HERBALIFE had no reasonable grounds for believing the representations were true.
59. HERBALIFE represented to Plaintiff, to its independent distributors, and to the public through its marketing, advertising, product labeling, and product training that its products could be safely used in concert with one another, and that use of multiple products was not dangerous. HERBALIFE also represented that its products were safe for use in any dose. In fact, such representations were false because use of multiple products at the same time, or use of products in high doses, created a risk of liver injury due to ingestion of herbs, nutrients, and vitamins in excess of safe levels. At the time they were made, HERBALIFE knew these representations to be false, or HERBALIFE made these representations recklessly and without regard for their truth, or HERBALIFE had no reasonable grounds for believing the representations were true.
60. HERBALIFE represented to Plaintiff through personal conversation with its employees, including its Senior Vice President for Medical Affairs, Dr. Jamie McManus, that HERBALIFE products were safe. In fact, HERBALIFE products were not safe because they contained hepatotoxic ingredients and their use created a substantial risk of severe liver injury. At the time they were made, HERBALIFE’s employees knew these representations were false, or HERBALIFE’s employees made these representations recklessly and without regard for the truth, or HERBALIFE had no reasonable grounds for believing the representations were true.
61. HERBALIFE actively concealed and intentionally failed to disclose to Plaintiff and the public the fact that its products contained known hepatotoxins and created the risk of liver injury.
62. HERBALIFE actively concealed and intentionally failed to disclose to Plaintiff and the public the fact that using multiple HERBALIFE products simultaneously created the risk of overdose of toxic ingredients.
63. HERBALIFE actively concealed and intentionally failed to disclose to Plaintiff and the public the fact that many of the ingredients in its products were never approved for use as food or considered to be Generally Recognized as Safe.
64. HERBALIFE actively concealed and intentionally failed to disclose to Plaintiff and the public the fact that the safety of its products, their ingredients, and the interaction of their ingredients when combined with other products had not been tested or scientifically or medically studied or evaluated prior to selling them to the general public.
65. HERBALlFE’s disclosure of limited and selective information about the safety and health benefits of its products, coupled with its intentional failure to disclose the facts alleged above, made its limited disclosures deceptive.
66. HERBALIFE possessed superior knowledge and special information concerning the safety of its products, their ingredients, their hepatotoxicity, and the health risks they presented, including risk of severe liver injury, which Plaintiff, as a consumer, could not have discovered. HERBALIFE intentionally failed to disclose such knowledge and information to Plaintiff.
67. By affirmatively misrepresenting the safety of HERBALIFE products, and by intentionally concealing and failing to disclose facts showing that its products were unsafe, HERBALIFE intentionally induced reliance by Plaintiff and the public on the false image of HERBALIFE products as being safe.
68. HERBALIFE made affirmative misrepresentations and concealed and failed to disclose true facts regarding the safety of HERBALIFE products with the intent to deceive Plaintiff and the general public. HERBALIFE fostered the false image of safe products in order to sell more products and generate greater profits.
69. Plaintiff reasonably relied on each of HERBALIFE’s fraudulent statements and
the deception caused by HERBALIFE’s concealment of and failure to disclose facts by
purchasing and ingesting HERBALIFE products.
70. If Plaintiff had known that the products were in fact not safe, but rather presented a substantial risk of causing severe liver injury, Plaintiff would not have purchased or used the products.
71. Plaintiff is informed and believes that his purchase and use of the HERBALIFE products was a substantial contributing cause of his liver injuries.
72. Each Defendant was aware that each other Defendant planned to commit fraud as alleged above, and each Defendant agreed with each other Defendant and intended that the fraud be committed.
73. HERBALIFE’s conduct in deceptively and fraudulently portraying its products as safe was malicious because it was despicable and done with conscious disregard of the safety of those consuming its products. Further, HERBALIFE’s fraudulent and deceptive conduct was oppressive because it SUbjected Plaintiff to cruel and unjust hardship in knowing disregard of his rights. For these reasons, Plaintiff is entitled to recover exemplary damages.
REQUEST FOR JURY TRIAL
74. Plaintiff hereby requests a jury trial on all triable issues.PRAYER FOR RELIEF
Plaintiff prays for judgment against the defendants, and each of them, as follows:1. For general damages in a sum in excess of the minimum jurisdiction of this Court;
2. For special damages according to proof;
3. For exemplary damages;
4. For pre-judgment interest according to proof;
5. For such other and further relief as the Court may deem just and proper.
