Stone v. Walgreen Company

Filing 8

ORDER granting (Doc. 1467, filed in MDL-2096) Motion to Dismiss. ORDERED Dismissing Stone v. Walgreen Co., No. CV-11-0948, with prejudice. Signed by Judge Frederick J Martone on 7/6/11. (MAP) (Origianl Order filed in MDL-2096, Doc. 1492)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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IN RE: Zicam Cold Remedy Marketing,)
Sales Practices, and Products Liability)
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Litigation.
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THIS DOCUMENT RELATES TO:
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Britteny N. Stone v. Walgreen Co.,
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No. CV-11-0948
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No. 09-md-2096-PHX-FJM
ORDER

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The court has before it defendant Walgreen Co.’s motion to dismiss Stone v.

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Walgreen Co., CV-11-0948 (doc. 1467). Plaintiff has not responded, and the time to do so

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has passed. Defendant argues that plaintiff’s complaint should be dismissed either because

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it is duplicative of a previous action, or because it is an improper attempt to circumvent our

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scheduling orders.

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On March 11, 2010, plaintiff filed a complaint in the Virginia Circuit Court for the

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City of Hampton against Matrixx Initiatives, Inc. and Zicam, LLC, alleging that her use of

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Zicam nasal gel caused her to lose her sense of smell, and asserting products liability claims.

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See Stone v. Matrixx Initiatives, Inc., et al., No. CV-10-1196, Notice of Removal, ex. 1,

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“Complaint.” Defendants removed the action to the United States District Court for the

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Eastern District of Virginia, and it was consolidated with this MDL on June 7, 2010.

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On April 7, 2011, plaintiff filed another complaint in the Hampton Circuit Court, this

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time against Walgreen Co., alleging that the Zicam nasal gel she purchased at a Walgreen

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store caused her to lose her sense of smell, and asserting claims for products liability and

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breach of warranties. See Stone v. Walgreen Co., No. CV-11-0948, Notice of Removal, ex.

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1, “Complaint.” Defendant removed the action, and it was consolidated with the MDL on

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May 12, 2011.

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We may dismiss an action as duplicative if the “causes of action and relief sought, as

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well as the parties or privies to the action, are the same.” Adams v. California Dept. of

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Health Servs., 487 F.3d 684, 689 (9th Cir. 2007). To determine whether the causes of action

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are the same, we use the “transaction test,” and consider four criteria: “(1) whether rights or

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interests established in the prior judgment would be destroyed or impaired by prosecution

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of the second action; (2) whether substantially the same evidence is presented in the two

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actions; (3) whether the two suits involve infringement of the same right; and (4) whether the

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two suits arise out of the same transactional nucleus of facts.” Id.

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All four factors demonstrate that the causes of action in the two complaints are the

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same. The rights and interests at stake in the claim against Matrixx could be impaired by

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inconsistent determinations in the second action about whether the product caused plaintiff’s

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alleged injury. The same evidence about plaintiff’s medical condition, causation and

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damages would be presented in both actions. Both actions implicate plaintiff’s right to be

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free of injury from the Zicam product. Both actions arise out of the same facts: plaintiff’s

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purchase and use of the Zicam product. The relief sought, monetary damages, is also the

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same.

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Defendants Matrixx, Zicam, and Walgreen Co. are in privity. Parties may be in

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privity when one “virtually represents” the other. “The necessary elements of virtual

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representation are an identity of interests and adequate representation. Additional features

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of a virtual representation relationship include ‘a close relationship, substantial participation,

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and tactical maneuvering.’” Adams, 487 F.3d at 691 (quoting Kourtis v. Cameron, 419 F.3d

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989, 996 (9th Cir. 2005)). Defendants Matrixx, Zicam, and Walgreen Co. have identical

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interests. Walgreen Co. could only be liable for distributing a defective product if Matrixx

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and Zicam were found liable for manufacturing and selling the product. Additionally,

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Matrixx and Zicam have indemnified Walgreen Co., and are defending the action on the
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retailer’s behalf. See Declaration of K. Cosner, ¶ 3 (doc. 1468). Therefore, adequate

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representation between the parties exists, and they are in privity.

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Because we conclude that plaintiff’s second action is duplicative, we need not reach

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defendant’s argument that plaintiff has attempted to circumvent our deadline for filing

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amended complaints.

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IT IS ORDERED GRANTING defendant’s motion to dismiss (doc. 1467). IT IS
ORDERED DISMISSING Stone v. Walgreen Co., No. CV-11-0948, with prejudice.
DATED this 6th day of July, 2011.

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