In re Bayer
Heathcare and Merial Ltd. Flea Control Prods., --- F.3d ----, 2014 WL 2209024 (6th
Cir. May 29, 2014)
In this
multidistrict litigation, the district court dismissed the claims after limited
discovery, and the court of appeals affirmed.
Defendants claimed
that their flea control products dispersed over pets’ bodies via the skin/hair after
being applied to one area. To streamline
the case, the district court framed it as turning on a single issue—whether these
claims were substantiated. Defendants
had the initial burden of producing studies to substantiate the claims, and
then plaintiffs would have to show that the studies were unreliable,
inaccurate, or incomplete. The
plaintiffs agreed to this case management plan, but then sought discovery on
additional issues. The district court
denied most of those request and granted summary judgment to defendants.
Defendants submitted
several studies, including a peer-reviewed study which applied Bayer’s product
on dogs, and tested dog hair and skin samples for distribution of the product’s
active ingredient and a doctoral dissertation that topically applied Merial’s
product on dogs, and tested dog hair samples for distribution of the product’s
active ingredient. Plaintiffs submitted
their own studies. The district court
concluded that defendants had a good faith basis for their claims; the parties
failed to reach settlement and defendants weren’t interested in commissioning a
neutral study as the district court suggested.
The district court then allowed discovery into consumer complaints, on
the theory that evidence that the companies had received a large volume of
consumer complaints would call into question Bayer and Merial’s good faith
reliance on their studies. After that
came the summary judgment ruling.
The court of appeals
first affirmed reliance on the case management plan, which treated the case as
having only one dispositive issue, and its associated discovery limits, to
which the plaintiffs agreed. “[A]lthough they gave up discovery and some of the
claims in the case, they got something in return. They no longer shouldered the
initial burden of disproving the defendants’ advertisements; the defendants
instead shouldered the initial burden of substantiating them.”
Then the court of
appeals agreed that defendants met their burden, and plaintiffs didn’t
successfully refute their studies.
Plaintiffs argued that their studies showed the presence of the products
in animals’ bloodstreams, “which when considered in isolation might suggest
that the products spread internally rather than by translocation.” But the study also detected active
ingredients in the pets’ hair twenty-four hours after application. Plaintiffs’
study asserted that its protocol was superior to the protocol used in Bayer and
Merial’s studies, but it did not attack the basis of Bayer and Merial’s
studies. At best, this was a conflict,
but that didn’t meet plaintiffs’ burden of showing that defendants couldn’t
rely on their own studies in their advertising.
More than mere assertion that defendants’ studies weren’t as good was
required. “By requiring the plaintiffs
to submit studies that demonstrated why Bayer and Merial’s studies did not
provide a good faith basis for their claims, the district court was able to
avoid a ‘battle of the experts’ and the attendant costs, which was another
objective of the case management plan.”
Plaintiffs argued
that the truth of the claims was at issue, but “if veracity was the central
issue in the case, one would expect the plaintiffs to bear the initial burden
of showing that Bayer and Merial’s claims are false.” Instead, the central
issue was whether the plaintiffs could cast doubt on Bayer and Merial’s good
faith basis for their advertising claims through expert studies. “The plaintiffs’ studies did not attack the
basis of Bayer and Merial’s studies; they merely asserted an opposing
conclusion.”
Comment: I would think that expert
analysis of the defendants’ studies, not (or not just) conflicting studies
would be required; otherwise there is, as the court of appeals says, just a
disagreement, not an explanation of which is better. The court's discussion of the plaintiffs' burden suggests that this is true, even though some of its language could be read as requiring plaintiffs to submit studies of their own. Since
plaintiffs failed to show that Bayer and Merial’s studies were unreliable,
inaccurate, or incomplete, summary judgment was appropriate.
The court of appeals
also rejected the plaintiffs’ argument that the defendants’ studies were never
subjected to Daubert analysis because
this argument was raised for the first time on appeal.
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