Uncontradicted testimony that defendant’s claim lacks scientific support requires judgment for plaintiffs

Rosendez v. Green Pharmaceuticals, No. D071073, 2017 WL
4400011 (Cal. Ct. App. Oct. 4, 2017) (unpublished)
Plaintiffs alleged that Green’s SnoreStop, a homeopathic
remedy for snoring, was a sugar pill falsely advertised to stop snoring.
Although the trial court found the testimony of Green’s homeopathy expert was
not credible and gave it no weight, the court also concluded that plaintiffs
failed to meet their burden of proof on their UCL, FAL, and CLRA claims, noting
they “proceeded on the theory that there is no scientific basis for the
advertised efficacy of SnoreStop” but “provided no evidence of tests to determine
the efficacy of SnoreStop.” The court of appeals reversed, implicitly rebuking
a number of recent cases that have (wrongly) interpreted California’s
standard—which does not allow private plaintiffs to require substantiation from
defendants—as precluding claims by private plaintiffs that rely on evidence
that shows no scientific support for the defendant’s scientific claims.
Green claimed that a clinical study showed that 79.5 percent
of SnoreStop users reported noticeable improvements within the first five
nights, but the study, according to plaintiffs, didn’t support the findings
attributed to it and “is instead characterized by severe methodological
deficiencies.” SnoreStop allegedly “simply consists of a myriad of toxic
substances that are provided in such extremely diluted form that they have no
impact on the human body whatsoever.” 
Homeopathy relies on dilution, and of SnoreStop’s seven “purportedly
active ingredients,” five were diluted to one part per million, one of to one
part per ten thousand and one part per million, and one to one part per
trillion.
Plaintiffs’ expert was Dr. Lynn Willis, who has a Ph.D. in
pharmacology.  Willis testified about the
two fundamental principles of homeopathy—the law of similars (treat a disease
with substances that cause symptoms mimicking the disease) and the principle of
dilution (diluting drugs makes them more powerful).   Willis testified he was not aware of any
valid scientific support for dilution, which is in direct opposition to dose
response theory, the basic principle of pharmacology.  The theory of homeopathy is that tapping the
diluted solution against a hard surface causes a release of healing energy, but
this has never been detected.  Based on
his education, training, research, and scientific review of homeopathic
literature, Willis opined that the homeopathic law of similars is “not
compatible with conventional theories of how drugs and other medications work,”
and was contrary to proven scientific theory, as was dilution.  He also specifically addressed each of
SnoreStop’s seven “active” ingredients (including belladona) and their dilution
levels.  He testified that each
ingredient would not, in isolation, relieve snoring, and that he was unaware of
any credible scientific evidence to support the claim that the combination, at
that dilution level, would be able to shrink swollen tissues that block air
passages (as claimed by defendant).  He
further testified that defendant’s clinical study was unreliable: among other
things, it relied on snorers’ bedmates’ opinions, and it failed to include a
power analysis to figure out how many subjects would be needed to detect a real
difference.  The study also showed that
45% of the placebo group showed a reduction in snoring, meaning that the test
group was also likely responding due to placebo response.  The net improvement that should have been
attributed to the treatment group was thus 20.4%, and he concluded that the
study should not be relied on to claim efficacy for SnoreStop.
Plaintiffs’ evidence also included the named plaintiff’s
testimony about her own experience with SnoreStop and its inefficacy for her.
At the close of plaintiffs’ case, Green moved for judgment
as a matter of law, which was denied.  Green
called, as an expert on homeopathy, Gregory Dana Ullman, who testified that he
practiced homeopathy and had written hundreds of articles on homeopathy. He
testified that he believed all of the statements at issue on the SnoreStop
package label were accurately stated and correct.  After closing arguments, the court concluded
that plaintiffs failed to meet their burden of proof, because Dr. Willis
couldn’t testify to the product as a whole, and thus there was insufficient
evidence that the combined ingredients failed to work.  As to the study, the court found that Dr.
Willis hadn’t conducted counter-testing of his own or proved that the study was
flawed.  However, the court found
Ullman’s testimony not credible and entitled to no weight, in part because of
his support for the use of a radionics machine, whereby a physician puts a
picture of his patient on one side, and a few medicines on the other side, and
then sees which of the medicines the needle points toward.
When the trial court concludes that the party with the
burden of proof failed to carry that burden, the question on appeal is whether the
evidence compels a finding in favor of the appellant as a matter of law. This
requires a finding that appellant’s evidence was (1) “uncontradicted and
unimpeached” and (2) “of such a character and weight as to leave no room for a
judicial determination that it was insufficient to support a finding.”  A trier of fact isn’t automatically required
to give a verdict that conforms to expert opinion, even if unanimous; the value
of the expert opinion depends on the quality of the evidence the expert
provides.  The trier of fact can only be
reversed unless it could not, in light of the record, reasonably reject the
expert’s testimony, which was the case here.
 
“Willis’s expert testimony regarding the efficacy of
SnoreStop was uncontradicted and unimpeached and constituted ample proof that
SnoreStop is not an effective snoring remedy.” Willis had relevant training and
expertise; he testified that there was no valid scientific support for the
dilution theory, and that it contradicted dose response theory, “the basic
principle of pharmacology. Willis also testified that he had never detected any
evidence to support the homeopathic idea that striking a substance releases
healing energy, noting that ‘science has no way to measure this energy.’” Thus,
he opined that homeopathic theories were “contrary to proven scientific theory.”  This testimony was unimpeached and
uncontradicted; the trial court gave Green’s witness testimony no weight. And
uncontradicted and unimpeached testimony of an expert witness may not be “arbitrarily
disregarded” by the trier of fact. 
“Willis’s testimony about the inefficacy and scientific
implausibility of homeopathy in general alone was sufficient to satisfy
plaintiffs’ burden of proving the inefficacy of SnoreStop as a snoring remedy.”
Moreover, his testimony wasn’t limited to homeopathy in
general, because he also testified about the inefficacy of each of SnoreStop’s
“active” ingredients and the inefficacy of those ingredients in combination.
The trial court mischaracterized his testimony in stating that Willis “could
not testify as to the product as a whole.” But he testified that each
ingredient wouldn’t work, and that he wasn’t aware of  any credible scientific evidence that the combination
would work and that he was of the opinion that they wouldn’t.  Also, though the court stated that plaintiffs
didn’t prove that Green’s cited study was flawed, Willis testified about a
number of flaws in the study.  Contrary
to the trial court’s statement, plaintiffs provided scientific evidence to
support their theory that there is no scientific basis for the advertised
efficacy of SnoreStop.
The trial court based its holding largely on plaintiffs’
lack of tests on the actual SnoreStop tablets. But Willis “was entitled to
accept the information on the label and could competently testify that given
that information, there is no scientific basis to conclude that SnoreStop could
have any effect on snoring beyond a placebo effect.” An expert’s opinion is not
unreliable simply because the expert’s opinions are based on data collected by
others. Because Willis’s reasoning, qualifications, or credibility were
unchallenged, the rejection of his opinions was arbitrary.
“Given the uncontradicted and unimpeached evidence that the
fundamental principles of homeopathy have no basis in science and that
SnoreStop in particular is not an effective remedy for snoring, the court
should have found for plaintiffs on both of their causes of action and awarded
the appropriate relief requested in plaintiffs’ complaint.”  In a footnote, the court noted that one older
California appellate case suggested that if a homeopathic product is listed in
the Homeopathic Pharmacopoeia of the United States (HPUS), its efficacy is
sufficiently established under the FDCA to avoid false advertising liability. However,
unlike non-homeopathic OTC drugs, homeopathic OTC drugs are not evaluated by
the FDA at all, and the FDA explicitly says that a homeopathic drug’s
compliance with the requirements of the HPUS “does not establish that it has
been shown by appropriate means to be safe, effective, and not misbranded for
its intended use.” So inclusion in the HPUS or compliance with FDA guidelines
regarding the HPUS “does not establish, much less guarantee, the product’s
efficacy.”

Finally, the trial court’s apparent decertification of the
class was in error; there was no indication that the requirements for
certification were no longer satisfied at the time of trial. The trial court was
directed to determine the damages, restitution, and other relief to which the
plaintiff class members were entitled. 

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