Theranos, Walgreens Blood Test Class Action Lawsuit Must Be Amended

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Following a judge’s dismissal, plaintiffs in a Theranos, Walgreens class action lawsuit have a few weeks to fix the defects in their pleadings.

U.S. District Judge H. Russel Holland pared away several of the plaintiffs’ claims in this consolidated Theranos class action lawsuit. Plaintiffs are challenging the accuracy and reliability of automated blood testing offered by defendant Theranos at several “Wellness Centers” set up in defendant Walgreens’ retail locations.

Judge Holland will allow plaintiffs a chance to amend defects in their pleadings related to seven discrete claims. Several other claims were dismissed with prejudice.

Judge Holland found the plaintiffs’ fraud-based claims, including a claim under the Arizona Consumer Fraud Act, weren’t pleaded with the specificity required by federal court rules. The judge noted that in some allegations, plaintiffs neglected to specify which defendant issued which alleged misrepresentation.

On the other hand, the judge noted that the defendants had made representations about their products and services that cannot be dismissed as mere “puffery” – the normal exaggeration that companies often use to promote their products with, which is generally considered not legally actionable.

Statements representing regulatory certifications and assurances that Theranos participates in proficiency testing programs can’t be dismissed as mere puffery, the judge said. Statements about the reliability of Theranos’ blood tests also may be more than puffery, as the reliability of a blood test can be measured and quantified.

Judge Holland dismissed claims for battery and medical battery, finding that the plaintiffs consented to the blood draws at issue and that they understood the nature of the invasion.

Plaintiffs have until July 13 to file an amended complaint restating the claims that were dismissed without prejudice.

According to the judge’s order, defendants Theranos and Walgreens contracted to run “Wellness Centers” at Walgreens retail locations throughout California and Arizona. Theranos would equip these centers with what it calls an “Edison” system. This system allows Walgreens customers to submit blood samples for testing, without having to visit a doctor’s office or a lab.

Plaintiffs allege Walgreens agreed to invest over $50 million in Theranos to install Wellness Centers in more than 8,000 Walgreens retail locations.

But according to the plaintiffs in these Theranos, Walgreens class action lawsuits, the test results were too inaccurate to rely on. In his Theranos class action lawsuit filed in May 2016, plaintiff Casey Jones alleges that Theranos marketed the Edison device prematurely in its rush to get the system to market, before proper testing could be completed.

As a result, Walgreens customers who used the Edison device at Walgreens Wellness Centers ended up being the guinea pigs for Theranos’ beta testing, the plaintiffs claim.

They also accuse Theranos of voiding or “correcting” tens of thousands of test results gathered using Edison blood test devices, after the Center for Medicare and Medicaid Services cited the company’s lab in Newark, Calif. for numerous deficiencies.

The current Theranos blood test litigation is a consolidation of five separate actions brought by 10 individual plaintiffs, one from California and the others from Arizona. Judge Holland consolidated these Theranos class action lawsuits in October 2016.

The plaintiffs are represented by attorneys Michael W. Sobol, Roger N. Heller and Melissa Gardner of Lieff Cabraser Heimann & Bernstein LLP, Laurence D. King of Kaplan Fox & Kilsheimer LLP, Joseph G. Sauder and Joseph B. Kenney of McCuneWright LLP, and Lynn Lincoln Sarko, T. David Copley, Gretchen Freeman Cappio, Mark D. Samson, and Christopher Graver of Keller Rohrback LLP.

The Consolidated Theranos Blood Test Class Action Lawsuit is In re: Arizona Theranos Inc. Litigation, Case No. 2:16-cv-02138, in the U.S. District Court for the District of Arizona.