Oscillococcinum Class Action Receives Partial Certification

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A California federal judge has certified part of a false labeling class action lawsuit against Boiron, Inc., maker of the homeopathic drug Oscillococcinum and Children’s Oscillococcinum, alleging that the homeopathic flu remedies are not able to relieve flu symptoms as the company claims.

“The thrust of this case is that, although a spoonful of sugar may help the medicine go down, the sugar alone won’t help anything else,” U.S. District Judge Stephen V. Wilson wrote in his Nov. 5 decision.

Plaintiff Christopher Lewert is charging Boiron with violating California’s Unfair Competition Law and California’s Consumer’s Legal Remedies Act. This is the second time that Lewert has filed a motion for class certification.

Lewert wanted the class to consist of “‘all California residents who after who after July 27, 2012, up to the date of the first Class Notice in this action purchased Oscillococcinum and/or Children’s Oscillococcinum.'”

Judge Wilson said that Lewert had met the minimum standards needed to be considered the class representative even though there are accusations that the Oscilococcinum class action lawsuit has been manufactured by an act of collusion between himself and his attorneys and that there is a conflict of interest. The federal judge said at this point the accusations are “speculative.”

“While the court remains concerned regarding the bona fides of Lewert’s representations, the court finds that Lewert has minimally met his burden of showing his adequacy,” Judge Wilson said.

“However, the parties are reminded that the court may always review this determination based on subsequent discoveries and events,” he added.

Boiron has alleged that Lewert’s attorney, Joseph Spirut of Spirut PC is a personal friend and that Lewert bought Oscillo so he could join the class action lawsuit.

But Judge Wilson said that Boiron’s claims are overstated and that Spirut is not listed as the proposed class counsel.

He also said that it isn’t a sufficient argument to say that because Lewert purchased Oscillo to treat nausea and diarrhea that he shouldn’t be class representative.

However, the California federal judge did find two “problematic” allegations, which did affect the scope of the class — Lewert had not purchased Children’s Oscillo and he had purchased the homeopathic remedy before the packaging was changed as the result of settlement in 2012.

As a result of these two factors, Judge Wilson excluded Children’s Oscillo from the false advertising class action lawsuit and limited the class to those who had purchased Oscillo before Aug. 31, 2013

Judge Wilson denied class certification to the false advertising class action lawsuit in February because the former lead plaintiff Leonidas Jovel’s credibility was called into question after he gave gave testimony which the judge deemed was “inconsistent . . . on whether he actually relied on Oscillo’s label in purchasing the product.”

Jovel filed the Oscillococcinum class action lawsuit in September 2013.

Lewert alleges that Oscilococcinum is no more than a sugar pill and that if the homeopathic drug helps relieve any flu symptoms it’s because of the placebo effect.

“Homeopathic remedies use ‘natural substances, often in ultra-dilute doses’ to treat illnesses. The active ingredient in both Oscillo and Children’s Oscillo is an ultra-diluted solution of water and a combination of incubated duck hearts and livers,” the judge explains.

“Lewert claims that under well-established principles of chemistry,” that the process of creating homeopathic drugs in which the duck heart and liver are diluted that it creates “a solution so dilute that it cannot possibly contain a single molecule of the incubated duck hearts and livers.”

This “ultra-dilute solution” that is in Oscillo is placed “on sugar pellets.”

Because of this he alleges that “Boiron’s representations that Oscillo is capable of relieving flu-like symptoms are false and misleading.”

Lewert is represented by Elaine A. Ryan, Patricia N. Syverson, Lindsey M. Gomez-Gray and Manfred P. Muecke of Bonnett Fairbourn Friedman & Balint PC; Stewart M. Weltman LLC; Levin Fishbein Sedran & Berman; and Westerman Law Corp.

Boiron is represented by Valerie M. Goo, Christina Guerola Sarchio and Haven G. Ward of Orrick Herrington & Sutcliffe LLP.

The Oscillococinum Class Action Lawsut is Lewert v. Boiron Inc. et al., Case No. 2:11-cv-10803, in the U.S. District Court for the Central District of California.