Consumer Suits After Settlement Led Boiron to Go to Trial

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By Julie A. Steinberg

June 21 — Consumer class actions seldom go to trial.

But repeat litigation, following a pair of settlements, led homeopathic product maker Boiron Inc. to try a California class suit alleging a homeopathic flu remedy didn't work ( Lewert v. Boiron, Inc., C.D. Cal., No. 11-10803, verdict 6/16/16 .

A jury in the U.S. District Court for the Central District of California June 16 found for Boiron (see related story).

“What was unique about us is that we had settled before, and it's like the plaintiffs left us no choice,” Christina G. Sarchio, who represented Boiron, told Bloomberg BNA.

“The company said, ‘you know what, we feel good about our facts, we feel good about our evidence, we don't feel we've done anything wrong, and we'll leave it to the jury system to make that decision for us,'” Sarchio, with Orrick Herrington and Sutcliffe in Washington, D.C., said.

“It's otherwise going to be death by a thousand paper cuts. Let's just pull the band-aid off and see what happens,” she said.

Ordinarily, settlements happen pre-trial. In the area of class suits, settlement often happens after a class is certified.

Companies companies worry that a class action trial is “just too risky. Even in the most aggressive kinds of cases where defendants feel confident about the evidence they have, and the facts, I've had settlements at the courthouse steps,” Sarchio told Bloomberg BNA. “We've picked a jury, in some instances.”

Companies worries about ramifications if they lose, Sarchio said.

“This company was in a similar position; it had settled twice before,” she said.

Settlements

One was a nationwide settlement that included all Boiron homeopathic products over a 12-year period of time.

That settlement, in Gallucci v. Boiron, Inc., S.D. Cal., No. 11-2039, provided a $5 million fund to reimburse class members and called for label changes to make clear that the products' advertised uses hadn't been evaluated by the Food and Drug Administration (16 CLASS 200, 2/27/15).

The other settlement, in DeLaRosa v. Boiron, Inc., C.D. Cal. No. 10-1569, involved one Boiron product, Childrens' Coldcalm. The DeLaRosa settlement also provided monetary relief to class members and a similar label change.

But suits persisted, even with the settlements, she said.

In the case that went to trial, Christopher Lewert, representing a California class, alleged the company's Oscillococcinum (Oscillo) flu remedy was no more effective than a sugar pill.

Juror Observations

The flu product case was tried to seven jurors, one of whom spoke to the parties afterward, Sarchio said.

That juror said he felt the plaintiffs hadn't met their burden of proof, she said. “For them to allege the product didn't work as advertised, they should have demonstrated that it didn't actually work, and they hadn't done that.”

The juror also thought the named plaintiff didn't put on evidence relating to classwide harm—he testified but no other consumers spoke about the product, she said.

Could the outcome in this case perhaps prod more companies to take consumer class suits to trial?

“It depends on how aggressively some of the plaintiffs' bar goes after some of the companies,” Sarchio said. “And if they have repeat targets, then I think there's going to be fatigue and so they are just going to want to go to trial.

“So to the extent a company feels confident that they've done the right thing, hopefully this sends a message that they should be willing to stand up and try a case,” she said.

Here, Sarchio said, the parties went through mediation as required by the court, but without resolution.

Stewart Weltman, one of Lewert's attorneys, told Bloomberg BNA he doesn't comment on pending cases. Attempts to reach other attorneys for the plaintiff weren't successful.

Weltman is with Boodell and Domanskis LLC in Chicago. Bonnett, Fairbourn, Friedman & Balint, P.C. and Westerman Law Corp. also represented the plaintiff.

To contact the reporter on this story: Julie A. Steinberg in Washington at jsteinberg@bna.com

To contact the editors responsible for this story: Steven Patrick at spatrick@bna.com and Jeffrey D. Koelemay at jkoelemay@bna.com

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