Sonner v. Schwabe N. Am., Inc.
911 F.3d 989
| 9th Cir. | 2018Background
- Plaintiff Kathleen Sonner sued Schwabe North America and Nature's Way alleging Ginkgold supplements (Ginkgo biloba EGb 761) were falsely labeled to improve "mental sharpness," memory, and concentration, violating California UCL, CLRA, and express warranty.
- Sonner supported her claims with expert testimony (Dr. Beth Snitz), meta-analyses, randomized trials, and reviews concluding Ginkgo is no more effective than placebo.
- Schwabe moved for summary judgment with contrary expert testimony (Dr. Alan Shatzberg) and studies supporting cognitive benefits of Ginkgo.
- The district court granted summary judgment for Schwabe, reasoning Sonner failed to meaningfully challenge Schwabe's studies and thus did not foreclose the possibility that the products worked.
- Sonner appealed; the Ninth Circuit reviewed de novo whether standard summary judgment principles apply to UCL/CLRA false-advertising claims and whether Sonner produced sufficient evidence to create a triable issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper summary-judgment standard for UCL/CLRA false-advertising claims | Apply usual summary judgment rules; producing expert evidence and studies creating a genuine dispute is enough to survive | A heightened standard should apply; plaintiff must not only produce evidence but also refute defendant's studies (relying on In re GNC approach) | Usual summary judgment rules apply; conflicting expert evidence creates a genuine issue for trial |
| Burden to defeat summary judgment | Sonner: show evidence that could satisfy preponderance at trial (expert testimony, trials, meta-analyses) | Schwabe: Sonner must foreclose any possibility that product benefits exist by undermining Schwabe's studies | Sonner met the burden to create a triable issue; district court erred by raising plaintiff's burden above the standard |
| Effect of competing expert testimony/scientific equivocality | Conflicting expert opinions produce a genuine dispute of material fact inappropriate for summary adjudication | Where scientific evidence is equivocal, summary judgment for defendant is appropriate because claims cannot be literally false | Conflicting experts go to weight, not admissibility; creates triable issue; summary judgment inappropriate |
| Whether Sonner's claims are improper "lack of substantiation" claims | Sonner: burden is on plaintiff to prove falsity by preponderance, not on defendant to substantiate | Schwabe: claims are effectively lack-of-substantiation, barred for private plaintiffs | Court rejects characterization as lack-of-substantiation; plaintiff bears burden of proof, so claims valid to pursue |
Key Cases Cited
- Anderson v. Liberty Lobby, 477 U.S. 242 (summary judgment standard; weighing evidence for genuine issues)
- Celotex Corp. v. Catrett, 477 U.S. 317 (burden to produce evidence to defeat summary judgment)
- Provenz v. Miller, 102 F.3d 1478 (generally inappropriate to grant summary judgment where an expert supports nonmoving party)
- In re GNC Corp., 789 F.3d 505 (Fourth Circuit decision advocating more exacting standard for literal falsity based on scientific disagreement)
- Paduano v. American Honda Motor Co., 169 Cal. App. 4th 1453 (California standard: plaintiff must prove falsity or misleading advertising by preponderance)