George Mckinney On Behalf of Himself v. Bayer Corp..

• Decision Date: 30 September 2010
• Docket Number: Case No. 10–CV–224.
• Citation: 744 F.Supp.2d 733
• Parties: George McKINNEY on behalf of himself and all others similarly situated, Plaintiff,v.BAYER CORPORATION, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

744 F.Supp.2d 733

George McKINNEY on behalf of himself and all others similarly situated, Plaintiff,

v.BAYER CORPORATION, et al., Defendants.

Case No. 10–CV–224.

United States District Court, N.D. Ohio, Eastern Division.

Sept. 30, 2010.

John R. Climaco, John A. Peca, Jr., Patrick G. Warner, Climaco, Lefkowitz, Peca, Wilcox & Garofoli, Frank E. Piscitelli, Jr., D. Scott Kalish, Cleveland, OH, Thomas J. O'Reardon, II, Timothy G. Blood, Bloodhurst & O'Reardon, San Diego, CA, for Plaintiff.Caroline H. Gentry, Joyce D. Edelman, Kathleen M. Trafford, Porter, Wright, Morris & Arthur, Columbus, OH, Julie L. Hussey, Ryan T. Hansen, Shirli Fabbri Weiss, DLA Piper, San Diego, CA, Tracey L. Turnbull, Porter, Wright, Morris & Arthur, Cleveland, OH, for Defendants.

MEMORANDUM & ORDER

KATHLEEN McDONALD O'MALLEY, District Judge.

Before the Court is Defendants' Motion to Dismiss Plaintiff's Complaint. (Doc. 6.) This Motion has been fully briefed and is ripe for adjudication. For the reasons set forth below, Defendants' Motion to Dismiss is GRANTED in part and DENIED in part. The Motion is granted as to the class claim under the Ohio Consumer Sales Practice Act, O.R.C. § 1345.01, et seq. (“OCSPA”), and as to Count IV. The Court denies the Motion as to Counts II, III, and as to McKinney's individual claim under the OCSPA, but will certify to the Ohio Supreme Court the question of whether a consumer has standing under the Ohio Deceptive Trade Practices Act, O.R.C. § 4165.01, et seq.

I. BACKGROUNDA. Factual Background ¹

Defendants Bayer Corporation and Bayer Healthcare, LLC (collectively referred to as “Bayer”) produce, market, and sell the “One–A–Day” line of vitamins, including the two products at issue in this case: One–A–Day Men's Health Formula and One–A–Day Men's 50+ Advantage vitamin products (referred to collectively as the “Vitamin Products”). According to Plaintiff George McKinney (“McKinney”), Bayer falsely advertises that the Vitamin Products “promote prostate health” and “may reduce the risk of prostate cancer” (“the Prostate Claims”). To the contrary, McKinney alleges, one of the key ingredients in the Vitamin Products, which Bayer claims provides these health benefits—selenium—“actually poses serious health risks when taken in the amounts recommended by Bayer.” (Doc. 1 at ¶¶ 1–2.) ²

McKinney alleges that “Bayer does not possess a single proper scientific or clinical study” supporting the Prostate Claims. ( Id. at ¶ 4.) He then cites to scientific studies to support his claims that selenium may, in some specific instances, actually increase the risk of aggressive prostate cancer. ( Id. at ¶¶ 36–54.) In addition, McKinney points to studies suggesting that selenium may increase the risk of diabetes. ( Id. at ¶¶ 38–39.)

McKinney contends that Bayer's statements regarding the prostate health benefits of the Vitamin Products “were widely disseminated” and appeared on package labels, on its website, and in its commercial advertisements. ( Id. at ¶¶ 2, 25.) With respect to the product packaging, McKinney points to language on the front label of One–A–Day Men's Health Formula which states that it “Supports Prostate Health,” and the back label which provides, in part, that “emerging research suggests Selenium may reduce the risk of prostate cancer.” ( Id. at ¶¶ 27–28.) The back of the package further states that:

One A Day Men's Health Formula is a complete multivitamin plus key nutrients including Selenium to support a healthy prostate.^* Selenium may reduce the risk of certain cancers. Some scientific evidence suggests that consumption of Selenium may reduce the risk of certain forms of cancer. However, FDA has determined that this evidence is limited and not conclusive.

(Doc. 1 at ¶ 28; Doc. 7 at 11–12; Doc. 9–1 at 1.) Similarly, the back of the product packaging for One–A–Day Men's 50+ Advantage states that it contains “nearly twice the Selenium in Centrum Silver to support prostate health.” (Doc. 1 at ¶ 29.)

With respect to commercial advertisements, McKinney alleges that, since 2008, “Bayer has run at least eleven versions of television advertisements and at least nine versions of radio advertisements repeating the same misrepresentations.” ( Id. at ¶ 25.) Specifically, McKinney alleges, and Bayer does not dispute, that Bayer ran the following television and radio commercials advertising the Vitamin Products:

• Radio Advertisement:

“Prostate cancer. It's an important subject. Did you know that there are more new cases of prostate cancer each year than any other cancer? And here's something else you should know. Now, there's something you can do that may help reduce your risk. Along with your regular doctor checkups, switch to One A Day Men's. A complete multivitamin plus selenium, which emerging research suggests may help reduce the risk of prostate cancer. One A Day Men's. Because staying healthy is serious business.”

• Television Advertisement:

“Did you know one in three men will face prostate issues? One in three, really? That's why One A Day Men's is a complete multivitamin with selenium which emerging research suggests can help prostate health. One A Day Men's.”

• Television Advertisement:

“To stay on top of my game after 50, I switched to a complete multivitamin with more. Only One A Day Men's 50+ Advantage has gingko for memory and concentration plus support for prostate and heart health. Safe. That's a great call. One A Day Men's.”

(Doc. 1 at ¶¶ 30–32.) Finally, McKinney points to Bayer's website, which repeats the Prostate Claims: “Did you know that 1 in 6 men will face prostate issues? Prostate cancer is the most frequently diagnosed non-skin cancer in men, and emerging research suggests Selenium may reduce the risk of prostate cancer.” ( Id. at ¶ 33.)

McKinney alleges that he saw and heard Bayer's television and radio commercial advertisements and purchased both Vitamin Products in reliance on the Prostate Claims contained therein. ( Id. at ¶¶ 34, 78.) The Complaint does not specify which of the advertisements McKinney allegedly saw or relied upon in making his purchases. Nor does it contain any allegations regarding when he purchased the products, the purchase price, or whether McKinney actually consumed the Vitamin Products at issue. McKinney does not allege that he suffered any physical harm from ingesting the Vitamin Products.

B. Procedural History

On February 2, 2010, McKinney filed a putative class action against Bayer alleging that its advertisements for the Vitamin Products, including the product packaging, “are unlawful, unfair, fraudulent, and unconscionable,” because they falsely claim that the Vitamin Products promote prostate health and reduce the risk of prostate cancer. (Doc. 1 at ¶¶ 1–3.) Specifically, McKinney's Complaint asserts the following four (4) claims for relief stemming from Bayer's promotion, advertisement, and labeling of the Vitamin Products: (1) violation of the Ohio Consumer Sales Practice Act, O.R.C. § 1345.01, et seq. (“OCSPA”); (2) violation of the Ohio Deceptive Trade Practices Act, O.R.C. § 4165.01, et seq. (“ODTPA”); (3) breach of express warranty; and (4) breach of implied warranty.

McKinney seeks to bring a class action on behalf of “[a]ll persons who purchased the Vitamin Products in Ohio. Excluded from the Class are Defendant's officers, directors and employees and those who purchased the products for the purpose of resale.” ( Id. at ¶ 63.) McKinney claims that he and the other class members were damaged because they: (1) purchased Vitamin Products “that were falsely advertised;” (2) “did not receive the Vitamin Product[s] as advertised and warranted and containing the claimed health benefits;” and (3) now face “an increased risk of serious health problems.” ( Id. at ¶¶ 1, 24, 109.)

On February 25, 2010, Bayer filed a Motion to Dismiss Plaintiff's Complaint (Doc. 6).³ McKinney filed an Opposition to the Motion to Dismiss (Doc. 21), and Bayer filed a Reply in Support (Doc. 22). McKinney sought and obtained leave to file a Sur-reply in Opposition to the Motion to Dismiss (Doc. 23) to address the Supreme Court's decision in Shady Grove Orthopedic Assoc., P.A. v. Allstate Ins. Co., ––– U.S. ––––, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010), which was decided on March 31, 2010. Bayer subsequently provided two notices of supplemental authority relevant to the Court's resolution of the Motion to Dismiss, and McKinney has filed responses. (Docs. 27–30.)

II. STANDARDS OF REVIEW

Bayer brings its Motion to Dismiss pursuant to Rules 12(b)(6) and 12(b)(1) of the Federal Rules of Civil Procedure.

A. Standard of Review Under Rule 12(b)(6)

The Court may dismiss a claim for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). The purpose of a motion under 12(b)(6) is to test the sufficiency of the complaint—not to decide the merits of the case.

It is well-established that a complaint need not set forth in detail all of the particularities of the plaintiff's claim. See Myers v. Delaware Co., No. 2:07–cv–844, 2009 WL 3446752, *2, 2009 U.S. Dist. LEXIS 98143, *6 (S.D.Ohio Oct. 22, 2009). Instead, Rule 8(a)(2) of the Federal Rules of Civil Procedure requires only a “short and plain statement of the claim showing that the pleader is entitled to relief.” Rule 8 does not, however, “unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Ashcroft v. Iqbal, ––– U.S. ––––, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). While legal conclusions can provide the framework for a complaint, all claims must be supported by factual allegations. Id. The Supreme Court has indicated that “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 1949; see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (“[A] formulaic recitation of the elements of a cause of action” is insufficient).

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