Johns v. Bayer Corp.

• Decision Date: 10 April 2013
• Docket Number: Civil No. 09cv1935 AJB (DHB)
• Parties: DAVID JOHNS, an Individual and MARC BORDMAN, an Individual, on Behalf of Themselves and All Others Similarly Situated and the General Public, Plaintiffs, v. BAYER CORPORATION, an Indiana Corporation and BAYER HEALTHCARE, LLC, a Delaware Limited Liability Company, Defendants.
• Court: U.S. District Court — Southern District of California

DAVID JOHNS, an Individual and MARC BORDMAN, an Individual, on Behalf of Themselvesand All Others Similarly Situated and the General Public, Plaintiffs,

v. BAYER CORPORATION, an Indiana Corporation and BAYER HEALTHCARE,LLC, a Delaware Limited Liability Company, Defendants.

Civil No. 09cv1935 AJB (DHB)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

DATED: April 10, 2013

ORDER:

(1) DENYING PLAINTIFFS'

MOTION TO EXCLUDE DR.

BLUMBERG'S EXPERT

TESTIMONY, (Doc. Nos. 141);

(2) DENYING DEFENDANTS'

MOTION TO EXCLUDE DR.

MILMAN'S EXPERT TESTIMONY,

(Doc. No. 142);

(3) GRANTING DEFENDANTS'

MOTION TO EXCLUDE DR.

MARONICK'S EXPERT

TESTIMONY, (Doc. No. 155);

(4) GRANTING DEFENDANTS'

MOTION FOR SUMMARY

JUDGMENT, (Doc. No. 172); AND

(5) DENYING AS MOOT

DEFENDANTS' MOTION TO

EXCLUDE MR. ELMORE'S

EXPERT TESTIMONY, (Doc. No.

157), DEFENDANTS' MOTION TO

STRIKE MR. ELMORE'S

SUPPLEMENTAL REPORT, (Doc.

No. 161), PLAINTIFFS' MOTION

TO EXCLUDE DR. DHAR'S

EXPERT TESTIMONY, (Doc. No.

162), AND PLAINTIFFS' MOTION

TO EXCLUDE DR. HUGHES'

EXPERT TESTIMONY, (Doc. No.

156).

Presently before the Court are Plaintiffs' motions to exclude Defendants' expert testimony and opinions, (Doc. Nos. 141, 156 & 162), Defendants' motions to exclude Plaintiffs' expert testimony and opinions, (Doc. Nos. 142, 155 & 157), Defendants' motion to strike the supplemental report of Plaintiffs' expert, (Doc. No. 161), and Defendants' motion for summary judgment, (Doc. No. 172). All matters were fully briefed.¹ On March 7, 2013, the Court heard oral argument on Defendants' motion to exclude Mr. Elmore's expert opinions and testimony, Defendants' motion to strike Mr. Elmore's supplemental report, and Defendants' motion for summary judgment.² Timothy Gordon Blood and Thomas Joseph O'Readon II appeared on behalf of Plaintiffs, and Julie LeMaye Hussy, Shirli Fabbri Weiss, and Ryan T. Hansen appeared on behalf of Defendants. (Doc. No. 226.)

For the reasons set forth below, the Court DENIES Plaintiffs' motion to exclude the expert testimony and opinions of Jeffrey B. Blumberg ("Dr. Blumberg"), (Doc. No. 141); DENIES Defendants' motion to exclude the expert testimony and opinions of Harry A. Milman ("Dr. Milman"), (Doc. No. 142); GRANTS Defendants' motion to exclude the expert testimony and opinions of Thomas J. Maronick ("Dr. Maronick"), (Doc. No. 155); GRANTS Defendants' motion for summary judgment, (Doc. No. 172); and DENIES AS MOOT Plaintiffs' motion to exclude the expert testimony and opinions of James W. Hughes ("Dr. Hughes"), (Doc. No. 156), Defendants' motion to exclude the expert testimony and opinions of Ravi Dhar ("Dr. Dhar"), (Doc. No. 162), Defendants'motion to exclude the expert testimony and opinions of David R. Elmore, Jr. ("Mr. Elmore"), (Doc. No. 157), and Defendants' motion to strike Mr. Elmore's supplemental report, (Doc. No. 161). The Clerk of Court is instructed to enter judgment and close the case.

BACKGROUND

This is a consumer class action brought by Plaintiffs David Johns ("Johns") and Marc Bordman ("Bordman") on behalf of themselves and a class of similarly situated California consumers (collectively, "Plaintiffs"). The Second Amended Class Action Complaint ("Second Amended Complaint") alleges that Defendants Bayer Corporation and Bayer Healthcare, LLC (collectively, "Bayer" or "Defendants") violated the Consumer Legal Remedies Act ("CLRA"), Cal. Civ. Code § 1750 et seq., and California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code § 17200 et seq., by making false and deceptive advertising claims regarding prostate health benefits in two of Bayer's men's One-A-Day ("OAD") vitamin products—OAD Men's Health Formula ("OAD Men's Health") and OAD Men's 50+ Advantage ("OAD Men's 50+ Advantage") (collectively, "Vitamin Products" or "Products"). (Doc. No. 22, SAC ¶¶ 74 & 83.) Specifically, Plaintiffs contend that despite mounting scientific evidence that the ingredients in the Vitamin Products do not support prostate health and do not reduce the risk of prostate cancer, Bayer marketed the Products as having such benefits, thereby engaging in deceptive marketing practices to capitalize on the growing awareness of prostate health concerns among men. (Id. at ¶¶ 43, 45, 48, 49 & 74.) As a result, Plaintiffs allege Bayer gained an unfair advantage over other vitamin manufacturers who did not engage in similar deceptive advertising practices. (Id.)

I. The Challenged Prostate Statements

Plaintiffs challenge two representations made by Bayer: (1) representations that the Products support overall prostate health ("Prostate Health Claim"); and (2) representations that emerging research suggests selenium may reduce the risk of prostate cancer("Prostate Cancer Claim") (collectively, "Prostate Claims").³ (Id. at ¶¶ 2 & 12-19; Doc. No. 172, Ackerman Decl., Exs. A-G, I & K.) Both Prostate Claims were made with respect to OAD Men's Health, whereas only the Prostate Health Claim was made with respect to OAD Men's 50+ Advantage. (SAC ¶¶ 17-19; Doc. No. 172 at 3.)

A. Prostate Claims Made with Respect to OAD Men's Health

Bayer first launched a men's gender-specific multivitamin in 1994. (Doc. No. 172, Ackerman Decl. ¶¶ 2 & 3.) At this time, Bayer began to advertise and market the multivitamin as specifically formulated for men, with representations relating to heart health and metabolism. (Id.) In 2002, Bayer reformulated and re-branded the men's gender-specific multivitamin to include representations that the product supports eye health, heart health, increases energy, helps lower blood pressure, and supports prostate health. (Doc. No. 172, Ackerman Decl. ¶ 5, Ex. A; Doc. No. 212, Blood Decl., Ex. 17.) This new product was labeled OAD Men's Health, and was one of many sub-brands within Bayer's OAD multivitamin line. (Id.)

In or around November 2006, some of the packaging for OAD Men's Health also included the following representation: "Complete Multivitamin Plus Moref † for Men - Did you know that prostate cancer is the most frequently diagnosed cancer in men and that emerging research suggests Selenium may reduce the risk of prostate cancer? One A Day® Men's Health Formula is a complete multivitamin plus key nutrients including Selenium to support a healthy prostate." (SAC ¶ 16; Doc. No. 172, Ackerman Decl., Ex. F, G, I & K; Doc. No. 212, Blood Decl., Ex. 17.) This representation was located on the back of the product package, and was highlighted, bolded, and italicized. (Id.) The images below depict examples of OAD Men's Health product packaging during the Class Period. (SAC ¶¶ 15, 17; Doc. No. 212, Blood Decl., Ex. 17.)

In addition to the Prostate Claims located on OAD Men's Health product packaging, Bayer ran multiple television advertisements that communicated the same or similar messages. (SAC ¶¶ 17 & 18; Doc. No. 212, Blood Decl., Exs. 5, 9, 15 & 16.) For example, one commercial, commonly referred to as the "Mustang" commercial, made the following representations through both dialog and visual depictions:

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 Lycopene, which . . . Harvard studies suggest may help prostate health.

(Doc. No. 212, Blood Decl., Ex. 15.) Another television commercial, commonly referred to as the "Striking Out Prostate Cancer" commercial, also communicated the Prostate Health Claim, which Plaintiffs allege was aired by Bayer a "a fully integrated marketing plan that aim[ed] at 'Manning Up' the brand and communicat[ing Bayer's] prostate health message." (Doc. No. 212, Blood Decl., Ex. G, Nunziata Depo. at 17:12-24 & 4345.) The Prostate Cancer Claim, which first appeared on OAD Men's Health product packaging in or around November 2006, never appeared in television advertisements, and was only made on the product packaging.

B. Prostate Claims Made with Respect to OAD Men's 50+ Advantage

Bayer first launched OAD Men's 50+ Advantage in or around May 2007. (Doc. No. 172, Ackerman Decl. ¶ 12; Doc. No. 212, Blood Decl., Ex. 18.) OAD Men's 50+ Advantage included the Prostate Health Claim, as well as representations relating to memory and concentration, heart health, healthy blood pressure, and eye health.⁴ (Id.) The product packaging for OAD Men's 50+ Advantage never included the Prostate Cancer Claim, or any other representation relating to prostate cancer. (Doc. No. 172, Ackerman Decl., Exs. H, J & L.) The images below depict examples of OAD Men's 50+ Advantage product packaging during the Class Period. (SAC ¶¶ 15 & 17; Doc. No. 212, Blood Decl., Ex. 17.)

C. Purchase of the Men's Vitamin Products

Plaintiff Johns allegedly purchased OAD Men's Health in July 2009 for the retail price of approximately $8.00 a bottle. (SAC ¶¶ 6 & 50; Doc. No. 73, Syverson Decl., Ex. 52, Johns Depo. at 11.) Plaintiff Johns read the representations on the product packagingfor OAD Men's Health, and contends he purchased the product for various reasons, including the Prostate Health Claim. (Doc. No. 73, Syverson Decl., Ex. 52, Johns Depo. at 22-25.) Plaintiff Bordman allegedly purchased several bottles of OAD Men's 50+ Advantage in 2008, each time paying the full retail price. (SAC ¶¶ 50 & 54; Doc. No. 73, Syverson Decl., Ex. 53, Bordman Depo.) In addition to the representations made on the Products' packaging, both Plaintiffs allege they have seen and heard television commercials advertising and marketing the Prostate Claims, and that they relied on such representations when deciding to purchase the Products. (SAC ¶¶ 51 & 55; Doc. No. 73, Syverson Decl., Ex. 52, Johns Depo., Ex. 53, Bordman Depo.)

II. Procedural History

Plaintiffs originally brought this action on September 3, 2009, alleging: (1) violations of the UCL; and (2) unjust enrichment. (Doc. No. 1.) Plaintiffs filed a First Amended Complaint ("FAC") as a matter of right on October 16, 2009, thereby adding a cause of action under the CLRA. (Doc. No. 10.) On October 30, 2009, Bayer filed a motion to dismiss and a motion to...