Rosendez v. Pharmaceuticals

RACHEL ROSENDEZ et al., Plaintiffs and Appellants, v. GREEN PHARMACEUTICALS, Defendant and Respondent.

D071073

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

October 4, 2017

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. CIVDS1108022)

APPEAL from a judgment of the Superior Court of San Bernardino County, Bryan F. Foster, Judge. Reversed with directions.

Newport Trial Group, Pacific Trial Attorneys, Scott J. Ferrell, and Ryan M. Ferrell for Plaintiffs and Appellants.

Carlos F. Negrete; The Lampel Firm and Eric P. Lampel for Defendant and Respondent.

Plaintiffs in a certified class action filed by representative plaintiff Rachel Rosendez¹ against defendant Green Pharmaceuticals (Green) appeal from a judgment after a court trial in favor of Green on their causes of action for violation of the Consumers Legal Remedies Act (CLRA, Civ. Code, § 1750 et seq.) and violation of the unfair competition law (UCL, Bus. & Prof. Code, § 17200 et seq.) and false advertising law (FAL, Bus. & Prof. Code, § 17500 et seq.). Green manufactures and markets SnoreStop FastTabs (SnoreStop), a homeopathic remedy for snoring. In their complaint, plaintiffs' allege SnoreStop "is a sugar pill that . . . Green . . . falsely advertises has the ability to stop snoring. In reality, [SnoreStop] consists of a simple blend of highly diluted ingredients that have no impact on snoring."

Although the trial court found the testimony of Green's homeopathy expert was not credible and gave it no weight, the court concluded plaintiffs failed to meet their burden of proof on both of their causes of action, noting they "proceeded on the theory that there is no scientific basis for the advertised efficacy of SnoreStop" but "provided no evidence of tests to determine the efficacy of SnoreStop." Plaintiffs contend the court should have entered judgment in their favor and awarded them relief because they met their burden of proof on both of their causes of action through expert testimony and other evidence that the court improperly ignored. They also contend the court abused its discretion by decertifying the class. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Rosendez filed a class action complaint in June 2011 against Green that included a first cause of action for violation of the CLRA and a second cause of action for violation of the UCL and FAL. The complaint alleges that Green produces and sells SnoreStop and makes numerous false claims about the product's efficacy. For example, the front of the SnoreStop packaging bears the product name in bold letters directly above the statement, "Thanks, now I'm back in the bedroom!" The back of the packaging includes representations that SnoreStop shrinks the swollen soft tissues that block air passages in the back of the throat and dries mucus that blocks nasal passages. Green's website contains the statement that SnoreStop "has been proven to stop or reduce snoring for a great majority of snorers."

The complaint further alleges that Green claims a clinical study showed that 79.5 percent of SnoreStop users reported noticeable improvements within the first five nights, but in reality, the study does not support the findings attributed to it and "is instead characterized by severe methodological deficiencies." SnoreStop allegedly "has no effect on snoring or any other efficacy," and "simply consists of a myriad of toxic substances that are provided in such extremely diluted form that they have no impact on the human body whatsoever."

The complaint sets forth the following basic explanation of homeopathy from Green's website under the heading "Principles of Homeopathy": "The term homeopathy is derived from the Greek words homeo (similar) and pathos (suffering from disease). The first basic principles of homeopathy were formulated by the German physicianSamuel Hahnemann in the late 1700s. Curious about why quinine could cure malaria, Hahnemann ingested quinine bark and experienced alternating bouts of chills, fever, and weakness, the classic symptoms of malaria. From this experience he derived the principle of similars, or 'like cures like': that is, a substance that can cause certain symptoms when given to a healthy person can cure those same symptoms in someone who is sick." The complaint alleges "there is no legitimate scientific basis for this belief."

The complaint lists SnoreStop's seven "purportedly active ingredients" and their dilution levels, five of which are specified on the SnoreStop label as being diluted to one part per million, one of which is specified as being diluted to one part per ten thousand and one part per million, and one of which is specified as being diluted to one part per trillion. Rosendez allegedly purchased SnoreStop because she hoped it would stop her snoring, but she did not experience any benefit from the product despite consuming it as directed.

In September 2013, the trial court granted Rosendez's motion for class certification and certified a class consisting of "[a]ll persons located within California who purchased SnoreStop . . . for personal use at any time from June 28, 2007 to the present."

The case was tried to the court in September 2014. Plaintiffs called as an expert witness Dr. Lynn Willis, who has a Ph.D. in pharmacology, which is the study of drugs. Willis has extensive research and teaching experience in both pharmacology and the closely related field of toxicology, which is the study of poisons. The court grantedplaintiffs' motion to designate Willis as an expert on pharmacology, toxicology, and homeopathic theory.

Willis testified that there are two fundamental principles of homeopathy—the law of similars and the principle of dilution. The law of similars "is based on a very ancient notion that it's possible to effectively treat the symptoms of a disease with a medicine that given to someone who does not have that disease . . . will cause symptoms that mimic the symptoms of the disease." Willis explained that the objective of homeopathy is to give a sick patient with active symptoms a diluted form of something "that would produce the same symptoms in a healthy individual . . . , and then through some unknown mechanism, what is called the vital energy of the patient[] is released or activated and that's what is supposedly responsible for generating the healing response that occurs."

Willis explained that the second tenet of homeopathy, known as the law of infinitesimals, involves serial dilution and "a process by which an extract of . . . an herbal or mineral or organic substance that is part of the compendium of homeopathic medicines is put through a series of dilutions . . . in a process that is called potentiation, and is believed . . . to actually render the medication more powerful." Stated differently, the law of infinitesimals is "the idea that the therapeutic power of a drug increases when that drug is rendered progressively and exceedingly more dilute[.]" Willis testified he was not aware of any valid scientific support for that idea, which is in direct opposition to dose response theory—the basic principle of pharmacology. Willis explained that dose response theory "holds that as the dosage of [a] biologically active chemical is increased,the intensity of the response that is elicited . . . will increase, and as the doses increase, new responses may emerge as well, that will occur at the higher dosage."

Willis explained the part of the process of preparing a homeopathy remedy known as "succession" or "potentizing" as follows: "During the process of dilution, between each stage of dilution, the vial containing the solution that's being diluted or that may be containing the powder substance, is tapped a standardized number of times on the counter. And according to my understanding of what Dr. Hahnemann believed was happening here is that this tapping is in part causing the release of the healing energy of this medication that's being diluted." When asked if he had "ever detected any evidence to support the homeopathic idea of the release of healing energy by striking a substance[,]" Willis responded, "The simple answer is no. The reason I believe is because science has no way to measure this energy."

Willis testified that based on his education, training, research, and scientific review of homeopathic literature, he was of the opinion that the homeopathic law of similars is "not compatible with conventional theories of how drugs and other medications work," and is contrary to proven scientific theory. He was also of the opinion that the homeopathic law of infinitesimals and the homeopathic idea of succession and potentizing were contrary to proven scientific theory.

Willis then addressed each of the following seven active ingredients of SnoreStop specified on the product label and their dilution levels: belladonna 6x², ephedra vulgaris 6x, histaminum hydrochloricum 12x, hydrastis (golden seal) 6x, kali bichromicum 6x, nux vomica 4x and 6x, and teucrium marum 6x. As to each ingredient Willis testified the ingredient would not in isolation relieve snoring or shrink swollen tissues.

Plaintiffs' counsel then asked Willis to consider SnoreStop's active ingredients in combination. Counsel asked, "Is there any credible scientific evidence to support the idea that the combination of those seven ingredients at the dilution level listed on the label would have the capacity to shrink the swollen tissues that block air passages in the mouth and in the back of the throat?" Willis responded, "I'm aware of none." He was of the opinion that the combination of the seven active ingredients at the dilution levels specified on the SnoreStop label...