Thursday, October 5, 2017
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Plaintiffs Proved Allegations That Snore Cure Is Worthless, Court of Appeal Holds
Finds Trial Judge Improperly Disregarded Testimony of an Expert Witness;
Judgment for Defendants Is Unsupported
By a MetNews Staff Writer
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The Fourth District Court of Appeal yesterday found that a judge erred in discounting testimony of a pharmacologist that the homeopathic remedy SnopSnore is inefficacious, ordering that judgment be entered in favor of the plaintiffs in a class action brought under consumer protection statutes.
The opinion by Acting Presiding Justice Gilbert Nares of Div. One reverses a judgment, following a bench trial, by San Bernardino Superior Court Judge Bryan F. Foster.
Foster found the testimony by pharmacologist Lynn Willis to be sufficient to overcome defendant Green Pharmaceuticals’s motion for judgment at the close of the plaintiffs’ case—but then disregarded that testimony when granting judgment to the defendant. He granted judgment to the defendant despite finding that testimony by its witness, an expert on homeopathy, “to be not credible.”
“Plaintiff had the burden of proving that [Green] engaged in an unlawful business practice,” Foster declared, “and Plaintiff failed to do so.”
There was no such failure, Nares said.
‘Sugar Pill’
Class representative Rachel Rosendez alleged in the complaint—brought under the Consumers Legal Remedies Act, the Unfair Competition Law, and the False Advertising Law—that SnoreStop FastTabs packages proclaim the contents to stop snoring while each tablet is merely “a sugar pill” that “consists of a simple blend of highly diluted ingredients that have no impact on snoring.”
Beyond that, it alleges that each tablet “consists of a myriad of toxic substances that are provided in such extremely diluted form that they have no impact on the human body whatsoever.”
Willis’ testimony was that none of the ingredients, singly or in combination, could have any effect on snoring, except that the tablets could act as a placebo.
He also testified that there is no “valid scientific support” for the homeopathic notion that with progressive dilution of a substance, the therapeutic power will burgeon.
Testing Not Necessary
Nares wrote, in an opinion that was not certified for publication:
“This appeal presents a highly unusual situation in that although the court found plaintiffs’ evidence was sufficient to overcome Green’s motion for judgment at the close of plaintiffs’ case, the court ultimately concluded that plaintiffs failed to meet their burden of proof even though the court essentially rejected all of Green’s trial evidence.”
He stressed:
“Willis’s testimony was unimpeached and uncontradicted.”
Defendant’s Expert
Nares noted that the defendant’s witness, Gregory Dana Ullman, disputed Willis’s testimony that homeopathy is not grounded in accepted scientific principles, but the trial court found his assertions unconvincing.
“Willis’s testimony about the inefficacy and scientific implausibility of homeopathy in general alone was sufficient to satisfy plaintiffs’ burden of proving the inefficacy of SnoreStop as a snoring remedy,” the jurist said.
He went on to observe:
“The court based its determination that plaintiffs failed to meet their burden of proof largely on the fact that neither plaintiffs nor Willis tested the actual SnoreStop tablets. Given the list of active ingredients and dilution levels of those ingredients on the SnoreStop label, Willis did not need to test the actual product to offer an opinion about its efficacy; he was entitled to accept the information on the label and could competently testify that given that information, there is no scientific basis to conclude that SnoreStop could have any effect on snoring beyond a placebo effect.”
No Discretion
Foster was obliged to render judgment for the plaintiffs, Nares said, explaining:
“Considering that the court arbitrarily disregarded Willis’s uncontradicted and unimpeached expert testimony regarding the inefficacy of homeopathy in general and SnoreStop in particular, and expressly rejected Ullman’s testimony and Green’s evidence in general, we conclude the court erred in ruling plaintiffs failed to meet their burden of proof that SnoreStop is an ineffective snoring remedy. Given the uncontradicted and unimpeached evidence that the fundamental principles of homeopathy have no basis in science and that SnoreStop in particular is not an effective remedy for snoring, the court should have found for plaintiffs on both of their causes of action and awarded the appropriate relief requested in plaintiffs’ complaint.”
The case was remanded for a determination of “the damages, restitution, and other relief to which the plaintiff class members are entitled.”
Nares speculated that an order contained in the judgment denying class certification was “the result of mistake or inadvertence” given that the class was certified in 2013. The order was reversed.
The case is Rosendez v. Green Pharmaceuticals, D071073.
Scott J. Ferrell, and Ryan M. Ferrell of Pacific Trial Attorneys represented the plaintiffs. Carlos F. Negrete and Eric P. Lampel acted for the defendant, although Negrete’s participation ceased after he was involuntarily enrolled as an inactive member of the State Bar on June 14, 2016.
Attorneys Comment
Ryan Ferrell remarked:
“We are pleased with the decision by the appellate court. The decision now matches the underlying evidence.”
Lampel protested:
“The Court of Appeal in San Diego rendered an erroneous reversal of the trial court’s decision in Rosendez vs. Green Pharmaceuticals today. The Court of Appeal completely ignored the compelling lack of evidence that the trial court relied upon in dismissing plaintiffs’ claims.
“The San Diego appellate court also refused to follow binding authority in ignoring the King Bio case from 2003.”
2003 Case
Nares acknowledged the case, National Council Against Health Fraud, Inc. v. King Bio Pharmaceuticals, Inc., in a footnote. There, Div. Five of this district held that the listing of a product in the Homeopathic Pharmacopoeia of the United States overcomes an action for false advertising.
That decision was criticized in 2011 by the U.S. District Court for the Central District of California in Delarosa v. Boiron, Inc. Nares found the federal decision persuasive.
Lampel indicated that review will be sought in the California Supreme Court. He said:
“Green Pharmaceutical will appeal this unfortunate and error ridden decision by the San Diego Court of Appeal to the California Supreme Court. Green Pharmaceutical has been in business for decades with no complaints of any kind against it. It produces effective and superior products.”
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