A federal court in California has denied a motion for class certification in a suit alleging that certain Boiron homeopathic products labeled with claims that they can relieve flu-like symptoms deceive consumers because they do not work. Jovel v. Boiron, Inc., no. 11-10803 (U.S. Dist. Ct., C.D. Cal., order entered February 27, 2014).
According to the court, the named plaintiff lacked credibility as to a critical case element—whether he had read the product labels before purchasing the product. the court stated, “Jovel’s inconsistent deposition testimony places his credibility in issue on whether he actually relied on Oscillo’s label in purchasing the product. if a jury concludes that because of Jovel’s prior inconsistent testimony he cannot be believed when he states that he relied on Oscillo’s label before purchasing the product, Jovel will jeopardize the interests of all of the other class members.”
During his deposition, plaintiff Leonidas Jovel repeatedly testified that he did not read the product label until he finished using the product. He changed his testimony later in the deposition and even “relied on different justifications for why he changed his testimony. First stating that his earlier testimony had been misunderstood, and then later stating that his recollection about when he viewed the label had been refreshed by a discussion with his counsel.” accordingly, the court ruled that he would not be able to fairly and adequately protect the interests of the class.
The court also denied Boiron’s motion for sanctions and vexatious litigation, finding that (i) the evidence was insufficient to show that Jovel’s counsel knew when she filed the complaint that he had not read the label before purchasing the product, and (ii) the handful of other cases that Jovel’s counsel has filed against Boiron do not appear “to have been filed in bad faith.”