A federal court in California has granted partial certification to a class of purchasers of Boiron’s homeopathic flu remedies in a suit claiming that label statements about the relief of flu symptoms are false. Lewert v. Boiron, Inc., No. 11-108-3 (U.S. Dist. Ct., C.D. Cal., order entered November 5, 2014). The court earlier denied class certification because the named plaintiff, who has since been voluntarily dismissed, gave inconsistent deposition testimony as to whether he had actually read the product label before purchasing it. Additional details about that ruling appear in Issue 21 of this Report.

The new named plaintiff alleges that he purchased Oscillo®, relying on the label statement that it treats flu-like symptoms, and stopped taking it after two doses, because it did not relieve his symptoms. He briefly researched the product’s ingredients and learned that the active ingredient was “a very minute portion of a duck liver that is boiled in many hundreds of gallons of water and then extracted and done again.” He claims that “this process yields a solution so dilute that it cannot possibly contain a single molecule of the incubated duck hearts and livers” and that placing this ultra-dilute solution of sugar pellets makes it a sugar pill. Any relief that could be provided, he alleges, comes “solely from a placebo effect.”

The court rejected the company’s claim that the class is unascertainable because (i) it maintains no records of individual purchasers and “most consumers do not keep receipts for purchases of cheap products” such as Oscillo, (ii) the court would have to determine whether a particular purchase occurred after the close of a similar class action that was settled for $5 million and whether that settlement publicity had any effect on each class member, and (iii) the proposed class is overly broad due to the inclusion of people who benefitted from the product or received a full refund and those who bought the product on a physician’s recommendation rather than the company’s representations. The court noted that the exact purchase date will be important to avoid requiring the defendants to pay a double satisfaction, stating, “This may be problematic for purchases allegedly made within the first month or so of the proposed class period,” which follows the class period in the settled case, and further stated, “Nevertheless, this concern regarding the apportionment of damages is insufficient to defeat class certification.” The court also observed that it could determine which customers had received refunds and would be ineligible to recover damages because “Boiron presumably maintains records of the individuals to whom it pays refunds.”

The court briefly analyzed the Rule 23 class-certification requirements and found each one satisfied. But the court focused some attention on whether the new named plaintiff was credible and thus adequate to represent the class. Boiron had alleged that he was a manufactured plaintiff, had a relationship with an attorney who had brought other cases against the company and also had credibility problems. The court apparently required the attorney, the plaintiff’s brother and plaintiff’s counsel to submit declarations about their relationships and involvement in the litigation. The court had some reservations about “the bona fides” of the plaintiff’s claim, since he stopped taking Oscillo® after doing online research and deciding that the product was not going to work. The court stated that “he lacks a background in pharmacology, chemistry, or a similar field which would allow him to judge Oscillo’s efficacy based on its active ingredient.” The court determined, however, that its suspicions were not sufficient to render the plaintiff inadequate.

The court agreed with Boiron that the class could not include purchasers of Children’s Oscillo® because the named plaintiff had not purchased it, and that the definition needed additional modification to account for new packaging that Boiron used, as required by the other class-action settlement. Thus the court limited the class period to purchases made before the packaging with so-called Gallucci disclaimers was introduced into the stream of commerce. The class period is therefore relatively short, confined to purchases made after July 27, 2012, and up to August 31, 2013.