A federal court in California has denied the motion to certify a class of purchasers of Vitamin E products allegedly misrepresented as beneficial to maintain a healthy heart, because the named plaintiff “misremembered” details about her product purchase and had a long-term relationship with class counsel thus putting into question whether she would put his interests above those of the class. Bohn v. Pharmavite, LLC, No. 11-10430 (U.S. Dist. Ct., C.D. Cal., decided August 7, 2013).

According to the putative class complaint, scientific studies do not support claims that Vitamin E benefits the heart. The plaintiff sought to certify a 17-state consumer class under California unfair competition law and two single state classes—California and Illinois—under their respective consumer fraud laws. Specifically focusing on the plaintiff’s adequacy to represent the class, the court discussed her deposition testimony, including that she purchased the product at Costco in late 2011 as an impulse buy and stopped taking it after a few weeks because she failed to notice any effect. At about the same time, the topic of Vitamin E arose during a dinner involving the plaintiff, her husband, class counsel and his wife, who had been friends for seven to eight years and got together about once a week.

The defendant questioned whether the named plaintiff could have purchased the product in November or December 2011, because it stopped selling the product to Costco in January 2009. The plaintiff then returned to Costco and obtained a receipt, showing that the purchase was made in 2009 and that it was purchased along with a different supplement than she had remembered when testifying. She conceded that she “misremembered when she made her purchase, who she was with, and what else she bought, but that she ‘is [still] certain’ she purchased the Vitamin E product and had read and relied upon the ‘helps maintain a healthy heart’ statement in making her purchase.”

According to the court, the plaintiff’s inconsistent testimony raised two issues: whether she actually relied on the heart health statement, when the product label also included statements about antioxidants and support of the immune system; and “she appears to have based her initial testimony on a memory that reconstructed the relevant events around her discussions with [counsel] and the filing of this suit, when, in fact, the purchase took place nearly three years prior.” The court was also concerned that her credibility would be “a significant issue at trial, undermining the interest of the classes.” The plaintiff’s close personal relationship with counsel only exacerbated these problems. In this regard, the court stated, the friendship and weekly gatherings “suggest that Plaintiff may have, at best, unduly relied on her close friend, or, at worst, have no real interest in prosecuting this action other than to assist her close friend in recovering a sizeable fee award relative to the small individual recoveries of the class members.”