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Friday, December 13, 2019

Bayer wants federal judge to toss class action over its probiotic products

By Jessica M. Karmasek | Aug 22, 2013


NEWARK, N.J. (Legal Newsline) -- Bayer Healthcare LLC, in a filing Tuesday, asked a federal judge to dismiss a class action lawsuit filed against the company over its probiotic products.

The plaintiffs' complaints allege that Bayer's packaging and advertising materials for its Phillips' Colon Health probiotics products are false and misleading. They argue that the ads are not backed by scientific evidence.

Bayer, in its 14-page brief in support of its motion to dismiss, said it wants Judge Esther Salas of the U.S. District Court for the District of New Jersey to toss the class action.

"Because plaintiffs have failed to plead their claims with adequate factual support, much less with the level of specificity required by the Federal Rules of Civil Procedure, their entire complaints should be dismissed," wrote Lorna Dotro of New Jersey law firm Coughlin Duffy LLP, who is representing Bayer in the suit. "Moreover, because claims for unjust enrichment are not cognizable under New Jersey law, such claims should be dismissed with prejudice.

"Finally, plaintiffs' failure to comply with the notice requirement for their claim of breach of the implied warranty of merchantability also requires dismissal with prejudice."

Plaintiffs Dino Rikos and Troy Yuncker filed lawsuits in May 2011 and June 2011, respectively.

Bayer moved to dismiss the cases pursuant to the first-to-file rule because of a lawsuit that was then pending in the U.S. District Court for the Southern District of California, Stanley v. Bayer HealthCare LLC. The court granted Bayer's motions.

After summary judgment was granted in Bayer's favor in Stanley, the plaintiffs' cases were reinstated.

The court then consolidated the plaintiffs' cases for pre-trial purposes.

In October 2012, Bayer moved to dismiss the two complaints, along with a third consolidated case, Worthington v. Bayer HealthCare LLC. In March, Worthington was voluntarily dismissed.

Accordingly, the court requested that the parties re-file their briefs pertaining to Bayer's motion to dismiss the remaining complaints.

Yuncker seeks to certify a class of all persons in the United States who purchased Phillips' Colon Health products, while Rikos seeks to certify a class of all persons who purchased Phillips' Colon Health until the date notice is disseminated.

The plaintiffs also seek to certify subclasses of persons who bought the probiotic products in Illinois and California.

They are seeking injunctive relief and monetary damages.

From Legal Newsline: Reach Jessica Karmasek by email at

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