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Abbott Labs Escapes Class Cert. Bid By Ensure Drinkers

A California federal judge Wednesday sunk a class certification bid by customers of Abbott Laboratories Inc.’s Ensure health shakes who alleged the company didn’t say the drink has no benefit for Vitamin D-deficient people, ruling that the state and nationwide class designations were flawed.

In granting Abbott’s motion to deny class certification, U.S. District Judge Stephen V. Wilson ruled that the statewide class was overbroad and the nationwide class contained people in disparate jurisdictions.

Michael J. Otto had alleged deception by omission in that Abbott did not disclose on packaging for its Ensure Muscle Health drink that only consumers with normal levels of Vitamin D can expect to “rebuild strength,” as advertised. Each drink contains a blend of protein, vitamins and Revigor, Abbott’s proprietary formulation of an amino acid metabolite, which Otto said has been shown to rebuild muscle strength only in individuals with a vitamin D level of greater than or equal to 30 nanograms per milliliter.

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

However, the judge said Otto could make a renewed motion for class certification of his statewide claims based on additional evidence and a narrowed class definition.

For the nationwide class, Judge Wilson said Otto, who has the burden of demonstrating a realistic plan for trial of the class claims, did not demonstrate that the class could be divided into manageable subclasses accounting for conflicts in state laws, that a representative plaintiff could be obtained for each of these subclasses, or that each subclass meets class action requirements.

Wednesday’s class certification rejection is not the first setback for Otto, who filed the action in August 2012. Judge Wilson dismissed the complaint without prejudice in March 2013, ruling that Otto had failed to identify scientific studies or other facts to support his claims.

In September 2013, Judge Wilson rejected Abbott‘s bid to squash the case, finding that Otto adequately pled his claim that consumers could have suffered an economic loss.

Representatives for the parties did not immediately respond to requests for comment Friday.

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 case is Michael J. Otto v. Abbott Laboratories Inc., number 5:12-cv-01411, in the U.S. District Court for the Central District of California.