This case based upon a wrongful death claim filed by Cora Erwin relating to the death of her husband after he was released from the hospital on July 15, 2004.  Cora Erwin filed a lawsuit on July 10, 2006, right before the expiration of the 2 year statute of limitations, naming Dr. Bryan, Union Hospital and five “john doe” defendants. After Dr. Bryan’s deposition on in June of 2007, Mrs. Erwin sought to amend her complaint to add Dr. Swoger as one of the “john doe” defendants. Dr. Swoger filed a motion for summary judgment to dismiss him as  a defendant because he was not identified until after the statute of limitations expired.

The Ohio Supreme Court ruled:

1. Pursuant to Civil Rule 15(d), a complaint against a party whose name is unknown must describe the defendant and a summons containing the words “name unknown” must be personally served on the defendant.
2. Civil Rule 15(d) does not authorize a claimant to designate defendants using fictitious names as placeholders in a complaint filed within the statute-of-limitations period and then identify, name and personally serve those defendants after the limitations period has elapsed.

The basic point is that plaintiffs may use a placeholder if they know who the defendant is but are not able to identify them prior to the expiration of the statute of limitations. However, plaintiffs are no longer going to be successful inserting place holder “john doe” defendants in hopes of identifying someone after the statute of limitations has run.

Defendants needs to be aware of this opinion if they were added as party to a lawsuit, based upon initially being named as a “john doe” defendant, after the expiration of the statute of limitations.

This is an interesting opinion and we will see how it works out in the trial and appellate courts.

The 8th District Court of Appeals in Ohio recently issued an opinion evaluating a claim made by a customer against Giant Eagle alleging that its advertisements relating to its prescription drug program violated the Ohio Consumer Sales Practice Act.

Giant Eagle is currently running a promotion where a 30 day supply of a list of prescriptions is $4.00 and a 90 day supply is $10.00. There program is displayed on their website available here.

The customer attempted to fill prescription for a 30 day supply of 20 mg tablets of Furosemide that her doctor prescribed for her to take 2 times per day. The customers prescription was for 60 tablets not 30 tablets since it was taken 3 times per day.

The customer then brought an action claiming that Giant Eagle violated the Ohio Consumer Sales Practices Act by not covering her 60 day supply and attached various copies of Giant Eagle’s advertisements.

Giant Eagle’s program provides a 30 day supply equal to 30 tablets of the 20 mg pills and notes that the ” $4 program covers medications for a 30-day supply of eligible drugs at commonly prescribed dosages.” This does not mean every possible combination of dosages.

The court ultimately ruled in favor of Giant Eagle and used good common sense. Customers  should not be successful in suing businesses for violations of Ohio’s consumer sales practice act if business (i) identify that a special program is subject to limitations, (ii) prominently direct the customer to the location of the limitations, and (ii) makes the limitations readily available in an easy to read format in paper and on the internet. There is not much more that a business can do.

The court’s opinion provides the following road map that businesses can follow when creating special program that is subject to limitations:

1. Clearly identify in advertisements that they are subject to limitations or other requirements (i.e. the fine print).
2. Place a prominent notice of the existence of limitations and other requirements on written materials using distinguishable font (italics) directly below and above the prices.
3. Direct consumers to a website were the terms and conditions of the program were available and clearly explained.

Thanks to Jackson on Consumer Class Actions & Mass Torts for posting and bringing this to my attention.

The rigorous enforcement of these marks by the NFL, the Olympic Committee and the NCAA is why we often hear about sales and special events referring to the Big Game.  Some limited use of these terms is permitted as nominative fair use in various circuits throughout the County.

Businesses should make sure to review their advertisements and marketing materials if they mention these events in light of these considerations.

This image is from j9sk9s and is used under the creative commons license. The image is available here and the attribution is available here. http://www.flickr.com/photos/j9sk9s/ / CC BY 2.0

On October 15, 2009, the FDA and FTC jointly issued a letter to a business marketing an “Immune Support Formula” and ordered the business to
“immediately cease marketing unapproved, uncleared, or unauthorized products for the diagnosis, mitigation, prevention, treatment, or cure of the H1N1 Flu Virus.”

The letter also states that the  “FTC staff strongly urge you to review all claims for your products and ensure that those claims are supported by competent and reliable scientific evidence.”

The letter gave examples of various claims that FTC and FDA believe are contrary to federal law. This letter is an example of the current position of the FTC and FDA with respect to claims made about nutritional supplements. This will also help business understand the current position of the FTC with respect to consumer products.

This has been picked up by various publications including NPR