By Samantha Joseph, From Daily Business Review

What happens when a class action plaintiff mixes street drugs and social media? Nothing good, especially if he’s trying to bring a national lawsuit claiming heart problems from an energy drink.

Adam Mirabella and Kristen Arrendell filed a federal suit in 2012 against Weston-based Vital Pharmaceuticals Inc., doing business as VPX, which manufactures energy supplements under the Redline brand.

The pair said Redline drinks sent them to emergency rooms with accelerated heart rates, chest pains and other symptoms.

But defense lawyers say a few minutes of browsing Facebook and other social media sites uncovered posts by Mirabella bragging about ecstasy use and attending raucous raves, while Arrendell’s updates showed a history of medical frailty.

The plaintiffs said VPX’s marketing material used inadequate labelling and misleading references to university studies to pitch the drinks as a safe way to increase mental focus and reaction time.

But instead of providing a rush of energy, they said the drinks sent them to the emergency room with chills, excessive sweating, vomiting, convulsions, chest pain and rapid heartbeat.

Their complaint included a report from the U.S. Food and Drug Administration’s Center for Food Safety and Applied Nutrition Adverse Event Reporting System, which collects post-market reports from consumers about symptoms and medical outcomes. It shows 10 reports from January 2005 to August 2008 linking Redline to chest pain, tremors, confusion, elevated blood pressure and nausea.

Mirabella and Arrendell said they paid a premium price for a dangerous product. They demanded a jury trial and charged VPX with unjust enrichment, violations of Florida’s Deceptive and Unfair Trade Practices Act, breach of implied warranty of merchantability and violation of the Magnuson-Moss Warranty Act on consumer products.

“This is an economic consumer protection action, not a personal injury claim,” the pair said in a complaint seeking equitable relief and economic damages, not tort relief, before U.S. District Judge William Zloch in Fort Lauderdale.

Instead of personal injury damages, they wanted a refund for themselves and everyone else who’d purchased Redline products, exposing VPX to an initial demand of $100 million, attorneys said.

Social Media Sleuth

But the manufacturer’s attorney bolstered his case by painting a picture of two unreliable plaintiffs.

Scott Knapp, a partner in Broad and Cassel’s Fort Lauderdale office, said Mirabella’s public Facebook page was “littered with molly” or MDMA references.

“Adam had a heart murmur. He also admitted that he was a regular user of ecstasy,” Knapp said.

Arrendell’s postings, meanwhile, showed a history of medical problems and a fundraising benefit to cover extensive expenses, Knapp said.

VPX used the social media posts to support its arguments that Redline did not injure Mirabella and Arrendell and the plaintiffs weren’t good class representatives.

VPX recruited Knapp after the plaintiffs moved for class certification.

The case pitted him against plaintiffs attorneys Joshua Eggnatz, Michael Pascucci and Benjamin Lopatin of Eggnatz Lopatin & Pascucci in Davie and San Francisco.

“I’m not surprised that those are the kind of things the other side would talk about. We disagree about any alleged drug use and pre-existing medical issues,” said Eggnatz, a partner at Eggnatz Lopatin. “There was no court ruling by the judge saying that this information was admissible. We believe that if it went to trial, it would not have been admissible because this is not a personal injury case. Regardless of whether the purchaser had any physical injury, the product was still wrongfully labelled.”

$5.49 Settlement

In February, Zloch denied class certification, ruling Mirabella and Arrendell did not meet their burden to successfully define the group of potential plaintiffs they sought to represent.

The plaintiffs sought to sue on behalf of all Redline consumers from 2008 to 2012, the period allowed by the four-year statute of limitations. They didn’t identify consumers of the products sold largely through convenience stores and other retailers and could not pin down purchase prices.

After the judge denied the plaintiffs’ request for reconsideration, the groups reached a settlement March 16 with VPX admitting no liability.

The settlement provided $2.50 for Mirabella and $2.99 for Arrendell—reimbursement for the purchase price of one Redline Xtreme drink—plus interest from the date of purchase through March 6. The agreement required each party to cover its own legal fees and costs.

Knapp also used social media to link the Eggnatz attorneys to a similar class action filed in Massachusetts against VPX. Knapp successfully argued the Florida case, which sought to form a national class, made the Massachusetts case superfluous. It also settled for purchase prices, bringing the combined settlement value to about $15.

“This outcome proves that one need not file a lawsuit and spend hundreds of thousands of dollars to simply report displeasure,” said VPX Sports CEO Jack Owoc.

IMAGE: Broad and Cassel attorney Scott Knapp – Melanie Bell

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