On The Case

Lessons from a class action trial: Should Bayer’s big win embolden defendants?

(Reuters) - On Friday, Bayer and its lawyers at Wilkinson Walsh & Eskovitz routed class action claims by consumers in New York, Florida and California who alleged Bayer falsely represented that its One A Day multivitamins support heart health, immunity and physical energy. The nine-member jury could not have sided more decisively with Bayer: On the verdict form, jurors found that class counsel from Tillotson Law and Kaplan Fox & Kilsheimer not only failed to prove that Bayer’s representations were misleading or deceptive but also failed to establish that any of the three class representatives relied on the allegedly false statements when they bought One A Day vitamins.

Consumer class action trials are a rarity. For most defendants, the stakes are simply too high to risk. In this case, for example, plaintiffs’ damages model put Bayer’s exposure at about $600 million, and that was just for consumers in three states. Had Bayer lost at trial and failed to overturn the verdict on appeal, it doubtless would have faced copycat class actions by consumers in other states, escalating its potential liability into billions of dollars.

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Bayer was willing to take that risk, said defense counsel Sean Eskovitz of Wilkinson Walsh, because the company had faith in its extensive review process for its marketing statements. “Our client had important institutional concerns,” Eskovitz said. “If you believe what you did is right, you can’t just compromise and settle … If you cave, it invites more such litigation.”

Should other consumer class action defendants take heart from Bayer’s win and risk jury trials? Every case, of course, presents unique facts. But I spoke Tuesday to Eskovitz and Jeffrey Tillotson, lead trial lawyer for the One A Day class, about broad lessons from their case for other class action lawyers contemplating jury trials.

KNOW YOUR CLASS REPRESENTATIVES. Two of the three class representatives in the One A Day case had connections, through their husbands, to Kaplan Fox, the law firm that initiated the class action. One named plaintiff is married to a Kaplan Fox investigator whose duties include finding class reps; another is married to a lawyer who is of counsel at the firm. Those connections weren’t significant enough to preclude class certification, as U.S. District Judge William Orrick of San Francisco explained in a 2017 opinion certifying three statewide classes. But at trial, according to Tillotson – whose firm came into the case specifically for trial – Bayer’s lawyers were able to raise doubts about the origin of the case.

“That was a major theme – that this was all fishy and suspicious,” said Tillotson, who told me that, in retrospect, he should have spent more time explaining class actions to the jury of five men and four women. “You have to heavily vet and be comfortable with your lead plaintiffs,” he said. “In front of the jury, it’s all about the plaintiffs.”

Those Kaplan Fox ties weren’t the only problem for the lead plaintiffs, Eskovitz said. As Jenna Greene reported Tuesday for the Am Law Litigation Daily, Wilkinson Walsh partner Alexandra Walsh was able to establish that the lead California plaintiff still believes One A Day pills supply necessary vitamins and minerals to people who don’t get them through their diets. (The same plaintiff, a lawyer, testified that she didn’t contemplate suing Bayer or even asking for a refund until she heard from her husband that Kaplan Fox was planning a class action.)

Eskovitz said it was “telling” that jurors found none of the lead plaintiffs proved they relied on Bayer’s representations about One A Day vitamins. Jurors did not have to answer that question on the verdict sheet since they concluded Bayer’s statements were not deceptive. By signaling skepticism about the class reps, the jury gave Bayer an all-out win.

KNOW YOUR EXPERTS. Both Tillotson and Wilkinson Walsh came into this case after discovery concluded. (Sidley Austin represented Bayer in motions practice and discovery.) The key expert for the class, Edward Blonz, revealed in his deposition that he took a daily multivitamin and recommended that his wife also take a daily multivitamin. Despite that deposition testimony, Tillotson said, Kaplan Fox opted not to find a new expert but to rely on Blonz to establish the class theory that for most people, there’s no health benefit to daily multivitamin pills – an aggressive position but one that was critical to the class damages model, which called for consumers to receive a full refund.

Blonz was able to explain his own vitamin consumption because he takes other medication that affects his Vitamin D level. But he had no good answer to questions about recommending a daily multivitamin to his wife. “We knew about it all along but there wasn’t much we could do about it,” Tillotson said.

Eskovitz said that Bayer’s cross-examination highlighted the inconsistencies between Blonz’s words and actions. But in impeaching the class expert, he also managed to introduce scientific studies backing Bayer’s case. The plaintiffs’ expert turned out to be such a great witness for Bayer that after his testimony, Wilkinson Walsh lawyers decided not to call any defense witnesses. “That’s unusual in a civil trial,” Eskovitz said. “But we felt the jury had seen enough and there was no need to extend things.”

Judge Orrick had scheduled a two-week trial, but testimony ended up taking only three days.

FRAMING MATTERS. The class, according to Tillotson, wanted its case to center on Bayer’s alleged misrepresentations about particular health benefits. Bayer wanted to tell the story of its review process for marketing statements, which must comply with Food and Drug Administration regulations. Judge Orrick refused to grant Bayer summary judgment based on its preemption arguments, but Tillotson said Bayer won a significant advantage in the instructions the judge gave jurors.

Those instructions called for jurors to decide if plaintiffs had proved “that the nutrients or dietary ingredients in One A Day multivitamins do not support the health of the heart, support the immune system, or support physical energy.” In other words, Tillotson said, jurors could find for Bayer as long as they concluded that the vitamins and minerals in its One A Day pills merely supported those health considerations – not necessarily that the pills enhanced users’ health. “That was a low bar for Bayer,” he said.

Judge Orrick’s refusal to certify a nationwide class also affected the outcome of the case, according to Tillotson. Bayer, he said, was reluctant to settle a three-state case for fear of encouraging follow-on class actions by consumers in other states.

Eskovitz said Bayer was determined to defend its review process. “Our client had the courage of its convictions,” he said. “Bayer thought the class claims didn’t have merit and it was important to disprove them.”

The bottom line from Eskovitz: The jury verdict was a testament to Bayer’s resolve and proof that the fundamentals lawyers bring to individual cases – making expert testimony digestible, preparing exhaustively for cross-examination and trusting your instincts about when the jury has heard enough – apply in class action trials as well.

Tillotson said there’s plenty more litigation to come over allegedly deceptive vitamins and nutritional supplements. But he conceded that this case may encourage defendants to hang tough. “I think for the defense bar, the message is to tread carefully, but ... it’s safe to try some of these class actions,” he said.