Hughes v. Ester C Co., NBTY
2016 U.S. Dist. LEXIS 144918
E.D.N.Y2016Background
- Plaintiffs Hughes and Hodjat brought a putative class action alleging that defendants’ labeling of “Ester‑C” as “The Better Vitamin C” was false, deceptive, and misbranded, seeking a nationwide damages class plus California and Missouri subclasses.
- Claims: common‑law negligent misrepresentation and unjust enrichment (nationwide under New York law); California UCL/FAL/CLRA (California subclass); Missouri MMPA (Missouri subclass).
- Defendants moved to strike Plaintiffs’ damages expert (Colin Weir) under Daubert/FRE 702; the court applied Daubert at class certification but admitted Weir’s testimony for the limited purpose of the Rule 23(b)(3) predominance inquiry.
- The court found Rule 23(a) numerosity, commonality, typicality, and adequacy satisfied, but held the proposed class is not ascertainable because: (1) purchasers are unlikely to have receipts or labels and (2) Ester‑C was licensed to many companies, making self‑identification unreliable.
- On predominance, the court held Plaintiffs failed to show (a) that New York common‑law claims are sufficiently uniform across 50 states to support a nationwide class, and (b) that damages can be measured on a classwide basis consistent with Plaintiffs’ theory (Comcast), because the term “better” is amorphous and cannot be isolated from other label claims.
- The court denied both Defendants’ motion to strike (in part) and Plaintiffs’ motion for class certification, and denied certification with prejudice; it also denied Rule 23(b)(2) injunctive class certification for lack of standing and because the challenged label had been removed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of damages expert under Daubert at certification stage | Weir is qualified and his methods can show classwide damages | Weir lacks qualifications and his methods are unreliable | Court applied Daubert at certification, found Weir sufficiently qualified and admitted his testimony for the limited purpose of Rule 23 analysis (motion to strike denied as to that narrow use) |
| Ascertainability of the proposed class | Class members can be identified using objective criteria and self‑identification | Purchasers lack receipts/labels; Ester‑C sold by 150+ licensees makes reliable identification infeasible | Class is not ascertainable; this alone defeats certification |
| Predominance for nationwide damages class (multiple states) | Common issues predominate; reliance/causation can be proven classwide or presumed in some states | State law variations (negligent misrepresentation and unjust enrichment) and reliance rules differ across states prevent predominance | Nationwide class fails predominance because state law differences (and unjust enrichment variations) are material |
| Classwide damages methodology (Comcast conformity) | Weir’s models (hedonic regression, conjoint, contingent valuation) can isolate price premium attributable to the “Better” claim | Methods cannot isolate the value attributable specifically to the amorphous term “better” amid many co‑occurring claims; risk of individualized inquiries | Damages model fails Comcast: no workable method to measure classwide damages attributable solely to the “Better Vitamin C” claim; predominance not satisfied |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (qualifications and reliability gatekeeping for expert testimony)
- Comcast Corp. v. Behrend, 569 U.S. 27 (expert model must measure damages attributable to the plaintiff’s theory of liability for class certification)
- Wal‑Mart Stores, Inc. v. Dukes, 564 U.S. 338 (Daubert considerations at class certification and commonality standard)
- Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (predominance and superiority in class certification context)
- Roach v. T.L. Cannon Corp., 778 F.3d 401 (Comcast requires damages model to measure only damages from the asserted theory)