Judge Denies Certification in Ensure Muscle Health Class Action

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Class certification was denied by a California federal judge in a class action lawsuit against Abbott Laboratories Inc., over allegations that its Ensure Muscle Health nutrition beverage contained misleading labels, after the judge said that there are flaws in the state and nationwide class designations.

U.S. District Judge Stephen V. Wilson ruled in the class action lawsuit that the state class was too broad and that the nationwide class included jurisdictions that were too different.

The Ensure class action lawsuit was filed against Abbott in August 2012 by plaintiff Michael Otto, alleging that Abbott omitted the fact that the benefits from its Ensure Muscle Health drink but not if a person is vitamin D deficient, which is not explained on the product’s label.

Specifically, Ensure Muscle Health’s blend of protein, vitamins and Revigor, which is an amino acid metabolite formula has helped rebuild muscle, but only in individuals when a person’s vitamin D levels are greater than or equal to 30 nano grams per milliliter.

“In this case, the omission was ‘obviously unimportant’ for swaths of the proposed [statewide] class,” Judge Wilson wrote.

However, “the omission of Revigor’s inefficacy among vitamin-D deficient consumers would be immaterial for a significant portion of the proposed class. And because the proposed class includes a substantial number of people who have no claim under the theory advanced by the named plaintiff, it is overbroad,” the California federal judge explained.

However, Judge Wilson said that Otto may filed another motion for class certification based on the state claims in the class action lawsuit, which addresses these issues and includes additional evidence and a more specific class definition.

As for the nationwide class, the California federal judge said that Otto did not show how such a class could be made into “more manageable subclasses accounting for conflicts in state laws, that a representing plaintiff could be obtained for each of these classes,” and that the subclasses would be the requirements for class certification.

The Ensure Muscle Health false advertising class action lawsuit was dismissed in March 2013 without prejudice, which meant that he was allowed to refile the class action lawsuit addressing the federal judge’s objections.

Judge Wilson had said that the class action lawsuit lacked scientific studies or any specific facts that supported Otto’s allegations.

Abbott had filed a motion to dismiss the Ensure class action lawsuit, which Judge Wilson denied in September 2013, saying that the class action lawsuit made a sufficient case for the economic loss claims.

Otto’s class action lawsuit over Ensure Clinical Strength and Ensure Muscle Health drinks alleged that the beverages, which are marketed for “people over 40 who are naturally losing muscle with age” are not effective with at least 60 percent of Abbott’s target market, only those without a vitamin D deficiency, but the company failed to disclose that fact on the products’ labels.

Otto is represented by Roland Tellis, Michael I. Miller, Natasha Mehta and Mark Pifko of Baron & Budd PC.

Abbott is represented by Gregg F. LoCascio, Jonathan D Brightbill, Ragan Naresh and Mark C Holscher of Kirkland & Ellis LLP.

The Ensure False Advertising Class Action Lawsuit is Michael J. Otto v. Abbott Laboratories Inc., Case No. 5:12-cv-01411, in the U.S. District Court for the Central District of California.