Gerber Probiotic Baby Food Class Action Gets 2nd Chance

A judge has dismissed part of a Gerber probiotic baby food class action lawsuit, yet most of it remains and the plaintiffs will have a chance to fix the remainder of the lawsuit.

Probiotics are supplements that according to some medical research improve the flora in the gastrointestinal system that play a role in the immune system. Gerber allegedly marketed its Good Start Protect Infant Formula, Good Start 2 Protect Formula and DHA & Probiotic Cereal based on those claims, according to the class action lawsuit.

However, according to the judge’s order approving in part the motion to dismiss the Gerber class action lawsuit, the Class alleges that “scientific studies … demonstrate that probiotic supplementation in infant formula does not support infant immunity” because it does not decrease bad bacteria, increase good bacteria or otherwise reduce infections. However, Gerber found several issues with the class action lawsuit.

One plaintiff had been removed from the Gerber class action lawsuit, and as a result, the baby food company argued that one of the products should be taken off the list. However, the order noted that “the products are closely related[,]… part of the same ‘Start Health, Stay Healthy’ line… [and] contain the same probiotic bacteria Bifidus BL.” Precedent notes that a motion to dismiss cannot survive merely because a plaintiff who bought a substantially different product has not been found yet, the judge wrote.

However, the plaintiffs in the class action lawsuit regarding the probiotic food will have to go back to the drawing board regarding New Jersey consumer protection law. The relevant statutes require that there be an actual economic injury. As a result, “Plaintiff’s allegations under the benefit of the bargain are sufficient, but for the lack of identity of some of the comparable products or the cost of any allegedly comparable product.”

If that is fixed, the Gerber class action lawsuit can continue as it will be possible for the judge and expert witnesses to figure out what prices customers should have paid if the facts of the case and other pre-trial motions merit such calculations.

The plaintiffs are represented by James E. Cecchi of Carella Byrne Cecchi Olstein Brody & Agnello PC, Blood Hurst & O’Reardon LLP, Bursor & Fisher PA, Complex Litigation Group LLC, Scott & Scott LLP, Faruqi & Faruqi LLP and the Law Offices of Ronald A. Marron.

The Gerber Probiotic Baby Food Class Action Lawsuit is In re: Gerber Probiotic Sales Practices Litigation, Case No. 2:12-cv-00835, in the U.S. District Court for the District of New Jersey.