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.
Appeal from the United States District Court for the Western District of Pennsylvania.
Filed: July 14, 2009
Before: RENDELL, SMITH, Circuit Judges, and POLLAK, District Judge
Opinion by CUDAHY, Circuit Judge.
For Appellant: Kathryn L. Clark, Eckert, Seamans, Cherin & Mellott; Joseph P. Schilleci, Jr., Timothy M. Fulmer, Natter & Fulmer, P.C.; Edmund J. Novotny, Baker, Donelson, Bearman, Caldwell, & Berkowitz, P.C.