By Stephen Gardner
The Bayer case (for Bayer's widespread deceptions about One-A-Day vitamins), where I was lead counsel until I left private practice (to set up an expert consulting practice), is set for jury trial February 19.
As far as I know, this is one of the few (if not the only) supplement fraud class actions to make it to trial, and it’s a doozy. For background on the case, see this CSPI press release.
In a Minutes Order issued on January 22, 2019, the Court ruled on several pending motions, most of them specious efforts by Bayer to avoid trial.
In this order the Court recognizes that “[g]iven the structure and requirements of the consumer protection claims at issue in this case, utilizing a presumption of reliance based on materiality and the need (for some of the claims only) to show reliance, there is no disconnect with the 'full refund' damages model and no Comcast problem.”
It is very significant that the Court agrees that it’s possible to presume reliance because the claims are material. And Court’s acceptance of the “full refund” damages model is also very good. This avoids needing an expert to parse out class damages, because the product is effectively worthless for most people.
Congratulations to Plaintiffs’ counsel at Stanley Law Group (my old firm), Tillotson Law, and Kaplan Fox on their victory in getting this case to trial!