CVS opposes class certification in 'AirShield' case

Amelia Flood Jul. 9, 2009, 1:16am

The defendant in a suit over an off-brand version of the immune supplement Airborne claims more discovery time is needed before the class in a pending case can be certified.

Meanwhile, a hearing took place late last week in a nearly identical pending suit also pending in St. Clair County.

CVS Pharmacy Inc. filed its objections to proposed class representative Iean Finley's motion for a briefing schedule for class certification June 30.

St. Clair Circuit Judge Lloyd Cueto was set to hear the certification argument July 2 but will hear them Sept. 9 instead. That hearing is scheduled for 10:30 a.m.

Finley's suit against CVS's "AirShield," a generic of the popular Airborne, is nearly identical to another suit over an Airborne generic that is pending in St. Clair County against Minneapolis-based Target. That suit was brought by lead plaintiff and proposed class representative Brian Buehlhorn. Both suits were brought in 2008 and feature the same attorneys at the plaintiffs' and defendants' tables.

St. Clair Circuit Judge Patrick Young is presiding in the Buehlhorn case.

Finley seeks to represent those who bought AirShield on or before Sept. 3, 2003 up to the present. He alleges the product does not work and is deceptively packaged. His complaint contends CVS is guilty of unjust enrichment from the sales of the product.

Finley is suing for damages of not more than $75,000 per class member, costs and attorneys' fees.

In its June 30 objection, CVS argued that more time was needed for discovery and without it, the company would be unable to address the class certification issue.

Cueto ordered the re-setting of the certification hearing July 2.
Finley is represented by Kevin Hoerner of Belleville, Richard Burke of St. Louis and Paul Weiss of Chicago. CVS is represented by Robert Bassett and others.

Hoerner, Burke and Weiss are representing the lead plaintiff and proposed class in the Target. Bassett and others are representing Target.

In the Target matter, a hearing had been set before Young July 1. The documents from that hearing were not available as of Wednesday in the case file.

Buehlhorn is suing Target over its "Immunity Supplement" and what he claims is its ineffectiveness. Buehlhorn is also seeking damages of not more than $75,000 per class member, costs and attorneys' fees.

The CVS case is St. Clair case number 08-L-0616.

The Target case is St. Clair case number 08-L-0667.

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