Appeals Court Won’t Upset Jury’s Finding That Controversial Remedy Works

Friday, November 9, 2018

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Appeals Court Won’t Upset Jury’s Finding That Controversial Remedy Works

By a MetNews Staff Writer

—AP

The Ninth U.S. Circuit Court of Appeals yesterday found no basis upon which to upset a judgment in favor of the maker of a homeopathic remedy which a jury found, over contrary contentions, can relieve flu symptoms.

The Ninth U.S. Circuit Court of Appeals yesterday affirmed a victory for the maker of a homeopathic remedy, Oscillococciuum—or “Oscillo”—which some say is no more efficacious than a sugar pill, but which a jury found, in the latest case, to have some value.

Controversy over the alleged remedy, made from the heart and liver of ducks and highly diluted, has stretched over the years. A different Ninth Circuit panel on Feb. 24, 2015, rejected an objection to a $12 million settlement of a class action against the maker of Oscillococciuum, Boiron, Inc.

The complaint in the case dealt with yesterday was filed Dec. 29, 2011. It alleges:

“Defendants’ Oscillo does not provide relief from flu-symptoms. Clinical cause and effect studies have shown that the sole ‘active’ ingredient in Oscillo, Anas Barbariae Hepatis ct Cordis extractum 200K (“Anas Baibariae”), does not work as represented by Defendants and, in particular, it does not temporarily relieve flu-symptoms. Furthermore…, the process by which Defendants make Oscillo results in the Anas Barbaraie being diluted to such a degree mat even if it were effective in relieving flu symptoms - which it is not - the odds of even a molecule of Anas Barbariae extract being in a dose of Oscillo is mathematically impossible. Thus, Oscillo is, unbeknownst to consumers, essentially water and sugar.”

Suit was brought under California’s Consumer Legal Remedies Act and Unfair Competition Law.

Seven-Day Trial

A seven-day trial took place, with Neil Spingarn, who has a Ph.D. from Yale in pharmacology, testifying for Boiron, over the objection that he had not been disclosed as an expert witness. Reference to the $12 million settlement was barred.

The jury sided with Boiron on June 16, 2016, in connection with the Consumer Legal Remedies Act, finding that Boiron’s representations are not false. Addressing equitable claims under the Unfair Competition Law, District Court Judge Andre Birotte Jr. of the Central District of California said in a Jan. 3, 2017 decision:

“[T]he Court is bound by the jury’s implicit and express findings inasmuch as Plaintiffs’ UCL claim is based on the same facts as the CLRA claim decided by the jury. Considering the jury’s findings, in addition its own finding that Plaintiff failed to prove Defendants’ representations were untrue, misleading, or likely to deceive the reasonable customer, the Court concludes that Plaintiffs UCL claim fails.”

Memorandum Opinion

A three-judge panel affirmed in a memorandum opinion which says:

“Boiron presented sufficient evidence from which the jury could have concluded that Oscillococciuum (‘Oscillo’) actually treats the flu and is not a sugar pill….It appears that the jury believed Dr. Spingarn, Boiron’s clinical studies, and its anecdotal evidence more than it believed [plaintiff Christopher] Lewert’s expert. Because neither expert actually tested Oscillo to see if it contained any therapeutic ingredient, this was a battle of the experts for the jury and not one that Lewert can relitigate on appeal.”

The opinion adds:

“…Lewert’s sole theory why Boiron’s packaging was misleading or deceptive was that Oscillo was a sugar pill and ergo could not treat flu symptoms. When the jury found explicitly that Boiron’s representations were not false, it must have implicitly rejected Lewert’s argument that Oscillo was just sugar. The district court did not err in treating that factual finding as having preclusive effect on the UCL claims.”

The case is Lewert v. Boiron, Inc., No. 17-56607.