The opinion of the court was delivered by: Greenaway, Jr., U.S.D.J.
This matter comes before this Court on the motion of Plaintiffs Kevin Clark and Willie Mae Wilburn (collectively "Plaintiffs"), individually and on behalf of all others similarly situated, for an order to show cause, requesting that: (1) Defendants Actavis Group hf, Actavis Totowa, LLC, Actavis Inc., Actavis Elizabeth, LLC, Actavis US, Mylan, Inc., Mylan Pharmaceuticals, Inc., Mylan Laboratories, Inc., Mylan Bertek Pharmaceuticals, Inc., and UDL Laboratories, Inc. (collectively "Defendants") provide urgent notice to unnamed class members and physicians; (2) this Court grant Plaintiffs' request for injunctive relief requiring Defendants to preserve evidence; and (3) this Court order the appointment of temporary interim class counsel.*fn1 For the reasons set forth below, Plaintiffs' motion is denied.
"On . . . April 25, 2008, the United States Food and Drug Administration ("FDA") announced a Class I Recall*fn2 of all lots of Bertek and UDL Laboratories Digitek(r)*fn3 ." (Compl. ¶ 50.) Plaintiffs, on May 9, 2008, filed this lawsuit against Defendants for
design, manufacturing, producing, supplying, inadequately inspecting, testing, selling and distributing dangerous, defective, misbranded and adulterated Digitek(r) (digoxin tablets, USP) . . . containing an amount of the drug's active ingredient, digoxin, exceeding the dose set forth on the label and in some cases exceeding the dose approved for medical treatment in humans.*fn4
On June 3, 2008, Plaintiffs filed an emergency order to show cause*fn6
seek[ing] notice to the class, and to physicians that prescribed digoxin, on an emergent basis to protect the health and avoid further damage from occurring;
request[ing] that the undersigned counsel be appointed temporary interim Class Counsel for the narrow purposes of implementing the notice;
seek[ing] an order requiring Defendants to cease and desist all efforts inducing consumers to return to Defendants, rather than preserving the drug and packaging themselves; and, an order requiring Defendants to preserve all Digitek(r) tablets and[/]or other items returned by consumers as part of the recall.
(Mem. in Supp. of Order to Show Cause and Emergency Mot. Requesting Defs. to Provide Prompt and Urgent Notice to Unnamed Class Members and Physicians, for Injunctive Relief to Preserve Evidence and Mot. of Counsel to be Appointed Temporary Class Counsel ("Pls.' Mot.") 4.)
Defendants argue that "Plaintiffs' request for injunctive relief improperly seeks to invade the province of the FDA in regulating product recalls[,]" and that the FDA has primary jurisdiction over all issues raised in Plaintiffs' motion. (Br. in Opp'n to Pls.' Req. for Order to Show Cause and Mot. Requesting Defs. to Provide Prompt and Urgent Notice to Unnamed Class Members and Physicians, for Injunctive ...