United States: False Advertising: California Court Of Appeal Rules That Plaintiffs' Expert Witness' Failure To Test Homeopathic Remedy Was Not Grounds For Excluding Opinion On The Remedy's Effectiveness

A California Court of Appeal has reversed a trial court's decision to strike plaintiffs' expert witness who opined on the efficacy of an anti-snoring medicine without testing a sample of the product. The trial court entered judgment for the defendant after striking the plaintiffs' expert witness.

In Rosendez et al. v. Green Pharmaceuticals, the plaintiffs sought to recover for false advertising, unfair competition, and violations of California's Consumers Legal Remedies Act. The plaintiffs alleged that the defendant, a pharmaceutical company, had falsely claimed that its homeopathic snoring remedy was effective at preventing snoring. The plaintiffs' expert, a pharmacologist, opined that according to the ingredients (and their concentrations) listed on the defendant's product label, the medicine central to the case could not be expected to have any effect on a patient's snoring. The defendant successfully moved to strike the expert on the ground that because he did not actually test a sample of the defendant's drug, he had no basis to opine on the drug's efficacy. After striking the plaintiffs' expert, the trial court entered judgment for the defendant because the class could not prove its case without expert testimony.

The Court of Appeal reversed the trial court's ruling, stating that the expert was entitled to rely on the package's labeling when analyzing the effect the ingredients would have; testing samples was not necessary. The Court of Appeal further ruled that the plaintiffs' expert provided sufficient evidence to permit the fact finder to have found for the plaintiffs, and that because the trial court had correctly stricken the defendant's expert, the opinions of plaintiffs' expert were unrebutted by the defendant. The Court of Appeal accordingly remanded the case to the trial court to determine the measure of damages to which the plaintiff class was entitled.

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