Magistrate judge says class action plaintiff and his attorney used shady doctor, might not have bought product at issue

By John Breslin | Jun 13, 2018

BROOKLYN, N.Y. (Legal Newsline) – A federal judge has raised serious questions over the actions of a plaintiff and his attorney in a class action against a major retail pharmacy chain that has since been dismissed.

Magistrate Judge Steven Gold in the Eastern District of New York ruled May 21 that a plaintiff in the action against CVS over its marketing and selling of a dietary supplement "has failed to demonstrate that he will fairly and adequately protect the interests of the class."

The judge was ruling on an objection by two plaintiffs, who sued separately, over a settlement reached between Mario Aliano and CVS over the sale of Algal-900 DHA, the packaging of which proclaimed a promise that it has "clinically shown memory improvement."

Aliano and CVS later jointly submitted a dismissal of the action June 4. Each party, they said, will pay its own costs and fees. 

CVS based the claim that the dietary supplement improved memory on one study of a "closely related product containing the same active ingredient," Gold's report and recommendation states. The Federal Trade Commission found this did not justify the memory improvement claims.

According to Gold's report, plaintiffs Jeffrey Worth and Robert Burns filed suit in New York federal court on Feb. 1, 2016. Aliano filed his complaint in Cook County Circuit in Illinois 10 days later. CVS removed the suit to the federal Northern District of Illinois.

Aliano reached a settlement in Illinois. The other plaintiffs claimed that it was not in the best interests of the class and managed to have the matter transferred to New York.

Worth and Burns questioned "Aliano’s standing and adequacy as a potential class representative," the report states. Gold sided with the pair and denied Aliano's motion for preliminary approval of the settlement.

"The facts reveal an unusually close and long-standing working relationship between Aliano and his attorneys in this action, Zimmerman Law Offices," Gold stated, adding the plaintiff and attorneys have been involved in 36 different lawsuits since 2007.

Further, the judge found, Zimmerman filed Aliano’s complaint 10 days after Worth, and it includes "virtually identical" allegations that cite same scientific research.

Zimmerman claims that it consulted with Dr. Bruce Livingston, a physician who has "substantial experience advising attorneys on the validity of medical claims," 35 years' experience as a physician and passed the Illinois Bar Exam, the report states.

"It turns out, however, that Dr. Livingston’s medical license has been suspended or revoked in several states and, in 1990, Livingston was convicted of numerous counts of Medicare fraud and mail fraud," Gold states, adding that Zimmerman did not reveal these facts, which were unearthed by the two other plaintiffs.

On the question over whether Aliano even bought the product, CVS revealed that on the day the plaintiff claimed to have bought the supplement, there were "no sales of the product made at the location identified by Aliano at his deposition," the report states.

Gold found, "The relationship between Aliano and Zimmerman is not the only reason adequacy is not met in this case; the circumstances under which Aliano came to bring this lawsuit, his decision to retain Dr. Livingston as a medical expert, questions about his own credibility, and the failure to seek concessions from CVS that it readily provided when asked also cut against finding Aliano to be an adequate representative of the class."

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