A federal magistrate in Florida has decided that the opinion proffered by the plaintiffs’ expert in litigation challenging “brain health” marketing claims for algal-derived DHA Omega-3 fortified milk products is unreliable, thus granting the defendant’s motion to exclude it. In re Horizon Organic Milk Plus DHA Omega-3 Mktg. & Sales Practices Litig., MDL No. 12-2324 (U.S. Dist. Ct., S.D. Fla., order entered April 28, 2014). The ruling affects claims brought by consumers in six states alleging that the defendant violated state laws by falsely claiming that the DHA in its products “Supports Brain Health” and “Supports a Healthy Brain,” and that “competent, scientific evidence shows that these claims are false.”
While the court found that most of the defendant’s arguments in support of exclusion went to the weight of the testimony rather than its admissibility, it agreed that the expert failed to show how small studies involving 49 women and 658 children in the United Kingdom could be extrapolated to the putative class of consumers of the defendant’s milk products in the United States and for that reason was unreliable under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The court disagreed that (i) the studies did not fit the case, (ii) the expert cherry-picked the studies to support his conclusion, and (iii) the five studies on which the expert relied contained contradictory conclusions.