United States Third Circuit

District court grant of summary judgment upholding the FDA's Final Rule banning all supplements containing ephedrine alkaloids is affirmed where res judicata bars third party plaintiff Hi-Tech's arguments on appeal as Hi-Tech had two full opportunities to litigate its challenge to the Final Rule banning EDS in district court, and the Eleventh Circuit evaluated Hi-Tech's claims and determined them to be without merit.

Appellate Information

• Argued 10/23/2008
• Decided 07/14/2009
• Published 07/14/2009

Judges

• Before:  RENDELL, SMITH, Circuit Judges, and POLLAK, District Judge.

Court

• United States Third Circuit

Counsel

• For Appellant:
  
• Kathryn L. Clark, Esq., Eckert, Seamans, Cherin & Mellott, Pittsburgh, PA, Joseph P. Schilleci, Jr., Esq., [Argued], Timothy M. Fulmer, Esq., Natter & Fulmer, P.C., Esq., Birmingham, AL, Edmund J. Novotny, [Argued], Baker, Donelson, Bearman, Caldwell, & Berkowitz, P.C., Atlanta, GA, for Appellant Hi-Tech Pharmaceuticals, Inc.


• For Appellees:
  
• Christine N. Kohl, Esq., [Argued], Douglas N. Letter, Esq., United States Department of Justice, Civil Division, Washington, DC, for Appellees United States of America;  Andrew C. Von Eschenbach, M.D., Commissioner of the U.S. Food and Drug Administration;  Food and Drug Administration;  Michael O. Leavitt, Secretary of the Department of Health and Human Services;  Department of Health & Human Services.