Lewert v. Boiron, Inc.
212 F. Supp. 3d 917
C.D. Cal.2016Background
- Plaintiff (class action) alleges Boiron’s homeopathic products Oscillococcinum (adult and children’s) are falsely labeled to relieve flu-like symptoms because the listed active ingredient (Anas barbariae 200CK) is diluted to essentially none.
- The product is prepared by Korsakovian 200CK serial dilution and then impregnated onto sugar granules; plaintiff’s expert (Dr. Kurdistani) calculates that no molecules of the original material remain.
- Defendants contend plaintiff’s expert is unqualified/unreliable and present their own experts and studies (including Ferley and Papp trials and unpublished Boiron studies) to support efficacy; they also argue potential preemption/primary-jurisdiction based on FDA/FTC review of homeopathy.
- The court considered competing Daubert challenges and motions to strike experts; much of the fight concerned admissibility, relevance, and adequacy of expert disclosures under Rule 26 and sanctions under Rule 37.
- The court denied both parties’ summary judgment motions (battle of experts), denied defendants’ motion to strike plaintiff’s expert (but ordered supplementation/deposition), and granted in part plaintiff’s motion to strike to exclude Dr. DuMont’s opinions about the reliability of the Ferley and Papp studies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Implied preemption / primary jurisdiction | State-law false advertising claims can proceed; they don't conflict with federal law | FDA/FTC are reviewing homeopathy; litigation should be deferred or preempted | Denied — no present conflict with federal law and primary jurisdiction not warranted absent agency guidance on the specific labeling issue |
| Admissibility of plaintiff's expert (Dr. Kurdistani) | His chemistry-based dilution calculations show 200CK leaves essentially no active ingredient; admissible | Unqualified for clinical/efficacy opinions; unreliable methodology; incomplete Rule 26 disclosures; biased | Denied motion to strike; expert qualified and methodology admissible; ordered supplementation and limited deposition for disclosure deficiencies |
| Admissibility of defendants' experts / anecdotal physician declarations | Anecdotal/physician declarations unreliable and inadmissible to prove efficacy | Anecdotal clinical experience and general homeopathy context are relevant and typical in practice | Denied plaintiff’s broad challenge; physician statements admissible (medical-diagnosis hearsay exception) and general homeopathy testimony allowed; late disclosure of one physician found harmless |
| Reliability of testimony on Ferley and Papp studies | Some defense testimony (DuMont) not qualified to opine on study reliability | Defendants’ experts (Isaacman) provide competent systemic review/rebuttal | Mixed — Dr. Isaacman admissible; Dr. DuMont excluded for lack of expertise to opine on study reliability |
Key Cases Cited
- Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (conflict-preemption standard)
- Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (district court gatekeeping for expert testimony)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (Daubert standard applies to all expert testimony; flexible factors)
- Wyler Summit P’ship v. Turner Broad. Sys., Inc., 235 F.3d 1184 (credibility and weight of conflicting expert testimony is for the jury)
- Clark v. Time Warner Cable, 523 F.3d 1110 (primary jurisdiction doctrine framework)
- Anderson v. Liberty Lobby, 477 U.S. 242 (summary judgment standard re: material disputes of fact)
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment burden-shifting)