Thursday, December 27, 2018
Page 3
Ninth Circuit:
Plaintiff in Consumer Action Challenging Claim For Products Has No Heightened Burden
Summary Judgment for Defense Reversed Where Triable Issue of Fact Existed;
Opinion Says Plaintiff Need Not Demolish Defense Experts’ Evidence
By a MetNews Staff Writer
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The Ninth U.S. Circuit Court of Appeals yesterday ordered reinstatement of a consumer action against two companies that market and sell gingko products which, it is claimed—and the plaintiff disputes—aid cognitive functions. |
The Ninth U.S. Circuit Court of Appeals yesterday repudiated the view taken by some district courts in the circuit and by the Fourth Circuit that a plaintiff in a consumer’s action faces a heightened standard in overcoming a motion for summary judgment by a manufacturer in an action disputing the accuracy of claims for a product.
The plaintiff in the case, Kathleen Sonner, brought a putative class action under California’s Unfair Competition Law (“UCL”) and Consumer Legal Remedies Act (“CLRA”) against Schwabe North America, Inc. and Nature’s Way Products which market and sell “Ginkgold Advanced Ginkgo Extract” and “Ginkgold Max Advanced Ginkgo Extract Max.” The products purportedly improve “mental sharpness,” “memory,” and “concentration.”
Sonner’s July 7, 2015 complaint alleges:
“All available, reliable scientific evidence demonstrates that the Ginkgold Products have no efficacy at all. are ineffective in the improvement of cognitive health, and provide no benefits related to increasing the memory, concentration, or healthy functioning of consumers’ brains. Numerous scientifically valid studies, performed by independent researchers and published in reputable medical journals, have been conducted on ginkgo biloba. and they have universally demonstrated that ginkgo biloba does not improve brain function, and is not effective in the treatment or improvement of memory problems or cognitive health.”
Sonner’s expert declared, in connection with the defendants’ motion for summary judgment:
“Ginkgo biloba is no more effective than [a] placebo for improving cognitive functioning or preventing cognitive decline.”
The defendants’ experts vouched for the efficacy of the herb.
Chief Judge Virginia A. Phillips of the Central District of California found on Feb. 2, 2017 that “both sides have produced expert testimony and scientific research in support of their claims” but granted summary judgment to the defendants because Sonner’s evidence is “insufficient to allow a reasonable juror to conclude that there is no scientific support for [Schwabe’s] claims.”
Phillips was reversed in a per curium opinion by Circuit Judges Kim McLane Wardlaw, Jacqueline H. Nguyen, and John B. Owens.
“Today we clarify that UCL and CLRA claims are to be analyzed in the same manner as any other claim, and the usual summary judgment rules apply,” they wrote, declaring that Sonner merely had to show the existence of a triable issue of fact.
The panel rejected the Fourth Circuit’s view that the plaintiff in a consumer’s action challenging a product’s claim has a stiffer burden. It said in a 2015 decision that when a plaintiff alleges claims are false, as opposed to true but misleading, it must be shown that the representations are “literally false.”
“When litigants concede that some reasonable and duly qualified scientific experts agree with a scientific proposition, they cannot also argue that the proposition is ‘literally false,’ ” the opinion says.
Disagreeing, the Ninth Circuit said in yesterday’s opinion:
“We are unpersuaded by the notion that a plaintiff must not only produce affirmative evidence, but also fatally undermine the defendants evidence, in order to proceed to trial….If the plaintiff’s evidence suggests that the products do not work as advertised and the defendant’s evidence suggests the opposite, there is a genuine dispute of material fact for the fact-finder to decide. We see no reason to diverge from the usual summary judgment rules for UCL and CLRA claims.”
The case is Sonner v. Schwabe North America, 17-55261.
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