Metropolitan News-Enterprise


Thursday, December 14, 2017


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Ninth Circuit:

Studies Support Health Drink’s Claims

Opinion Affirms Dismissal of Action Challenging Representations as to Efficacy of Ensure


By a MetNews Staff Writer


The Ninth Circuit has held that studies pointed to by the plaintiff show that a product containing “Revigor’ aids muscle strength of the elderly.

The Ninth U.S. Circuit Court of Appeals has largely exonerated Abbott Laboratories in an action in which the plaintiff contended that the multinational health care company lied about the efficacy of its product Ensure, a chocolate health drink, in rebuilding muscle strength in the aging.

The appeals court’s action was taken Tuesday in a memorandum opinion of a three-judge panel. The narrow issue before it was whether U.S. District Judge Stephen V. Wilson of the Central District of California properly snipped from the complaint an allegation that the company’s claims were “literally false.”

In his order of dismissal, Wilson reviewed four medical studies cited in the complaint and declared, at the pleading stage, that they did not support the allegation of literal falsity. He did, however, give the green light to continuation of the action based on Abbott’s failure to disclose that the product does not work on persons—such as plaintiff Michael D. Otto—who are Vitamin D deficient and that there was, according to Otto’s theory, deception through omission.

Otto dismissed what remained of his action after Wilson denied class certification.

Memorandum Opinion

The memorandum opinion declares:

“The determination that Otto failed to state a claim for literal falsity was proper. Viewed collectively and in full context, the sources cited by Otto reveal that Abbott’s products do help rebuild strength naturally lost over time, at least for those with normal vitamin-D levels. Otto has therefore failed to plausibly allege that Abbott’s representations were literally false.”

The panel—Circuit Judges Alex Kozinski and Michael Daly Hawkins, joined by Senior Circuit Judge Barrington D. Parker Jr. of the Second Circuit, sitting by designation—declined to decide whether Wilson was correct in denying class certification, citing the U.S. Supreme Court’s June 12 opinion in Microsoft Corp. v. Baker. There, Justice Ruth Bader Ginsburg wrote:

“Plaintiffs in putative class actions cannot transform a tentative interlocutory order…into a final judgment…simply by dismissing their claims with prejudice.”

Allegations of Complaint

The complaint, brought in 2012, alleged:

“Abbott capitalizes on the fears of a growing population of baby boomers and other individuals who are concerned about muscle loss. To gain credibility with consumers, Abbott touts the purported health benefits of these supposed miracle elixir Products with pseudo-scientific terms and proclamations like, the ‘#1 doctor recommended brand.’ In particular, the packaging for Abbott’s panacea boldly promises that the Products will ‘help rebuild muscle and strength naturally lost over time.’ According to Abbott, this astonishing scientific achievement comes from Revigor—Abbott’s ‘proprietary ingredient’—a source of ‘Amino Acid Metabolite HMB.’ ”

At oral argument in the case on Nov. 13, Otto’s lawyer, Mark P Pifko of the Encino law firm of Baron and Budd asserted that Wilson “conflated standards of pleading and proof,” insisting that the allegations were adequate but that the judge improperly shot them down by interpreting the studies relied upon by the plaintiff.

He said that for pleading purposes, it would suffice for a plaintiff to say, merely, “I bought this item and it did not work for me.” But the plaintiff in the present case, he said, went far beyond that, citing studies.

Kozinski said the plaintiff cited “snippets” of studies but that the judge looked at the studies as a whole and concluded they did not support the assertions.

He observed that the plaintiff is required “to come forward with something” and that “the district court looked at your ‘something’ and said it’s ‘nothing.’ ”

The judge advised:

“That’s the battlefield. You have to persuade us that ‘something’ is ‘something’ rather than ‘nothing.’ ”

Pifko insisted that Wilson “was not permitted…to go into that level and read the studies.”

Parker Questions Lawyer

This dialogue ensued:

PARKER: “Why not? You averted to the studies, right?”

PIFKO: “Well, we cited to them. I think the district court—”

PARKER: “Well, why can’t the district court read them?”

PIFKO: “Well, I think it’s appropriate for the district court to read them and—”

PARKER: “You’re saying that the district court could read them but made a mistake in reading them too closely?”

PIFKO: “Right.”

PARKER: “Should have just skimmed them?”

PIFKO: “Well, they should have. The district court had the ability to read the studies and see if they said the language we said. We said ‘It concludes X.’ The district court could read that and see if it’s not in there.”

PARKER: “Proofreading?”

PIFKO: “Yeah.”

PARKER: “The district court was limited to proofreading?”

PIFKO: “Right.”

Kozinski opined that the district court must “look at the whole thing and see if the report, in fact, supports you.”

Pifko also expressed doubt that a judge is “qualified” to understand scientific reports. Parker asked, rhetorically:

“You’d throw all these patent cases out of federal court?”

Arguing for Abbott, Christopher Landau of the District of Columbia office of Kirkland & Ellis LLP, said that Otto “cherry picked the studies” and cited them for broad propositions which are inconsistent with the actual conclusions.

The case is Otto v. Abbott Laboratories Inc.16-55394.


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