A federal magistrate judge in California has ruled unreliable and inadmissible the expert testimony proffered by the defendant in a Federal Trade Commission (FTC) lawsuit alleging that the company, its owners and officers deceptively advertised two dietary supplements by claiming they effectively treat diabetes and insulin resistance. FTC v. Wellness Support Network, Inc., No. 10-4879 (U.S. Dist. Ct., N.D. Cal., order entered October 4, 2013).  

According to the court, the expert, a “Clinical Professor of Medicine with extensive experience in the study and treatment of diabetes,” failed to (i) address the specific allegedly false advertising claims in his report, (ii) show that the medical community embraced his methodology, including his exclusive consideration of “positive clinical studies” to support his opinions on diabetes treatments, or (iii) adequately support the arbitrary hierarchy he created to describe the level of “clinical effectiveness” of the ingredients used in the defendant’s products. As to the latter, the court noted that the expert apparently relied on Food and Drug Administration (FDA) “medical foods” regulations to support his classification system, thus underlining its irrelevance and lack of grounding in scientific principles. In this regard, the court said, “Even assuming WSN’s products were considered medical foods by the FDA—a question the Court need not reach—the degree of regulation they would be subjected to by the FDA simply is not relevant to the issues of this case.”