Dollar General $1.8 Million Infants’ Pain Drug Settlement OK’d

Dec. 3, 2021, 8:59 PM

A $1.8 million settlement resolving allegations that Dollar General Corp. duped consumers into thinking infants couldn’t safely use cheaper “children’s” pain relief products won final approval from a Florida federal court.

Previously, infants’ acetaminophen pain relievers had a stronger concentration of the drug than the children’s products. The difference in concentrations caused some consumers to accidentally provide the wrong dosage to their children.

In December 2011, the Food and Drug Administration said the concentration in both formulas must be the same, to prevent confusion and accidental acetaminophen toxicity.

Dollar General, which distributes its own brand of acetaminophen pain reliever and fever reducer under the “DG Health” label, was among manufacturers and retailers sued for allegedly portraying the infants’ product as the only type appropriate for very young children.

The settlement, approved Thursday by the U.S. District Court for the Middle District of Florida, covers individuals in the U.S. who bought DG Health Infants’ Acetaminophen after Sept. 15, 2016, for personal or household use.

But the plaintiffs’ attorneys saw their $600,000 fee request cut to $540,000, to align with the circuit benchmark range of between 20% and 30% of a fund.

The $60,000 fee difference is to be distributed to class members on a per-claim basis, Judge Timothy J. Corrigan said.

The court declined for now to grant a $5,000 service award to lead plaintiff David Levy, in light of the Eleventh Circuit’s decision in Johnson v. NPAS Sols., LLC, which said service payments are prohibited.

But the mandate in Johnson hasn’t issued, and a petition for rehearing is pending, the court here said. Class counsel may renew their request if Johnson is reversed, it said.

Dollar General also agreed to change the packaging of the infants’ acetaminophen product, to say the liquid medicine contains the same concentration of acetaminophen as the DG Health Children’s Acetaminophen.

Other retailers have seen similar suits thrown out.

Plaintiffs have appealed to the U.S. Court of Appeals for the Ninth Circuit following dismissal of a suit against Kroger Co., and one against CVS and Perrigo Co.

Rite Aid exited a suit when a New York federal court said consumers wouldn’t be misled by the labeling. Topco Associates LLC won dismissal on preemption grounds.

A suit against Walmart Inc. was voluntarily dismissed. Another CVS consumer dropped her appeal, and a Walgreens customer also dropped an appeal.

Pearson Simon & Warshaw LLP, Shamis & Gentile PA, Edelsberg Law PA, and Dapeer Law PA were appointed class counsel. McGuireWoods LLP represented Dollar General.

The case is Levy v. Dolgen Corp., M.D. Fla., No. 3:20-cv-01037, 12/2/21.

To contact the reporter on this story: Julie Steinberg in Washington at jsteinberg@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com

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