Alfred Westermajer v., Inc.

Alfred Westermajer v. Nutrex Research Inc, General Nutrition Centers Inc, GNC Corp., GNC Holdings Inc., Inc, DPS Nutrition Inc, Vitamin Shoppe Inc. Civ. No. 15-7326 (WHW) (CLW), United States District Court of New Jersey. December 15th, 2015.


Case Details

This lawsuit concerns two dietary supplements known as “Hemo Rage” and “Lipo 6,” both of which contain a compound called DMAA. DMAA belongs to a class of compounds known as sympathomimetics, which are “widely abused because of their perceived ability to enhance athletic performance and in some cases induce euphoria.” According to the FDA, DMAA can cause “heart attacks, strokes, high blood pressure, shortness of breath, chest tightness, seizures, nervous system disorders, psychiatric disorders, and liver failure.”

Plaintiff Alfred Westermajer claims that the labels for these supplements contained inadequate warnings and “clearly false” marketing statements. Hemo Rage stated that the supplement offered “tunnel-vision like mental focus and clarity” and Lipo 6 stated the capacity for “an ultra-concentrated fat destroying complex.” 

Case Timeline

Late 2011: The United States military removed DMAA products from on-base stores after a Department of Defense review concluded that “some individuals may be predisposed to severe health consequences after using DMAA.”

April 2012: The FDA published a warning letter stating that DMAA is not a natural compound and could not be the active ingredient in a dietary supplement under the relevant regulatory requirements. The FDA stated its right to seize products containing DMAA.

2011-2013: Plaintiff Alfred Westermajer purchased and consumed both Hemo Rage and Lipo 6. He was soon diagnosed with health symptoms that are alleged to be associated with the use of these products.

March 25th, 2015: Westermajer files a lawsuit against the companies involved with the packaging, distribution and sale of Hemo Rage and Lipo 6 that allegedly caused his health issues.

Plaintiff’s Arguments

  • Westermajer states that these companies did not recall DMAA supplements because they “had made significant investment in inventories of ‘Hemo Rage’ and ‘Lipo-6,’ such that they wanted to sell off this inventory after the FDA Warning Letters.”
  • Westermajer initially sought $40,000,000 in damages.
  • Westermajer filed claims for recklessness, negligence, strict product liability, design defect, failure to warn, and breaches of implied and express warranties. The recklessness and negligence claims were dismissed on August 21, 2015.

Defendants’ Arguments

The collective defendants maintain that Westermajer has no plausible case:

  • Westermajer’s purchase records list five retail transactions and four internet transactions at Vitamin Shoppe. However, the listed transactions include purchases of Lipo 6 but not Hemo Rage
  • Vitamin Shoppe did not record any Hemo Rage sales to Westermajer
  • Lipo 6 shown in the photograph provided by the Plaintiff did not contain any DMAA
  • When questioned, Westermajer could not accurately describe the products and ingredients in question and stated that the Court refer to the photographs provided

Summary and Conclusion

The collective Defendants claim that the two photographed Lipo 6 cans did not contain DMAA. However, they could not sufficiently prove that Westermajer did not buy any cans of Lipo 6 that contained DMAA during the time period in question. Therefore, the Plaintiff’s motion to remand is granted by the Court.