Kevin Simms v. Bayer Healthcare, LLC

752 F.3d 1065, 2014 WL 2209024
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 29, 2014
Docket13-3514
StatusPublished
Cited by28 cases

This text of 752 F.3d 1065 (Kevin Simms v. Bayer Healthcare, LLC) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kevin Simms v. Bayer Healthcare, LLC, 752 F.3d 1065, 2014 WL 2209024 (6th Cir. 2014).

Opinion

OPINION

McKEAGUE, Circuit Judge.

This case involves multidistrict litigation focused on whether defendants Bayer and Merial falsely advertised their flea-and-tick products for pets. In an effort to streamline the case, the district court framed the case as turning on a single issue, and crafted a case management plan in which Bayer and Merial would bear the initial burden of producing studies to substantiate their advertising claims. After *1068 Bayer and Merial met their burden, the burden would shift to the plaintiffs to refute the studies, showing how the studies were unreliable, inaccurate, or incomplete. The plaintiffs’ failure to carry their burden would result in dismissal of the case. The plaintiffs agreed to the case management plan, but then at the end of the process wanted to instead conduct discovery relating to issues besides the agreed-on disposi-tive issue. The district court denied most of the plaintiffs’ discovery requests, and granted summary judgment to Bayer and Merial. For the reasons stated below, we affirm.

I.

This case involves various flea-and-tick products for dogs and cats that Bayer and Merial manufacture and market. All of Merial’s products and all but one of Bayer’s products are considered “spot-on products” because their active ingredient works primarily through topical application to a pet’s skin rather than through the pet’s bloodstream. ' According to Bayer and Merial, after a small amount of their product is applied to one area of a pet’s skin, the product disperses over the rest of the pet’s body within one day of application via a process called translocation. Bayer and Merial advertise that this dispersal occurs because the product collects in the oil glands in the pet’s skin, and that the pet’s natural oils spread the product over the surface of the pet’s skin and “wick” the product over the pet’s hair.

The plaintiffs in this case are the named plaintiffs in ten actions filed in nine district courts, consolidated by the Judicial Panel on Multidistrict Litigation. The plaintiffs allege that Bayer and Merial made various false and misleading claims about their flea-and-tick products. In their briefing to this court, the plaintiffs summarize their false advertising claims against Bayer and Merial as follows:

[1] that defendants’ products are. self-dispersing and cover the entire surface area of the pet’s body when applied in a single limited spot; [2] that they are effective for one month and require monthly applications to continue to be effective; [3] that they do not enter the bloodstream of the pet and instead move across the pet’s coat and skin to cover and protect the pet; [4] and that they are waterproof and remain effective following shampoo treatments, swimming, and exposure to rain or sunlight.

Pl. Br. at 7.

On May 1, 2012, the district court conducted a case management conference. The district court discussed the plaintiffs’ claims with the plaintiffs’ attorneys, noting that the “first alleged false claim is that the defendants’ products are self-dispersing and cover the entire surface of the dog or cat’s body when applied in a single limited spot.” R. 16, 05/01/12 Tr. at 12, PagelD # 187. After discussing all four claims with the plaintiffs’ attorneys, the district court reasoned that there were “four claims, but there’s really only one claim.... We can tie everyone up for years in discovery, but we can cut through all that and do a couple tests, and the product either disperses or it doesn’t.” Id. at 35, PagelD #210. The district court also noted that “if this product didn’t work [the way that the defendants claimed that it worked,] it would be readily apparent ... within a few months.” Id. at 13, 15, PagelD # 188,190.

The district court summarized the dispute as a one-issue case several times during the case management conference. On one occasion, the district court stated, “boiled down, this case is very straightforward. The plaintiffs are alleging that the defendants’ product does not autodisperse across the surface of the pet’s body as the defendants claim.” Id. at 42-43, PagelD *1069 # 217-18. On another occasion, the court stated: “It’s taken an hour, I now understand the plaintiffs’ case ... it boils down to one basic contention, that they’re claiming that [Bayer and Merial] have misrepresented [their] product. And that is this self-dispersing mechanism, and that it covers the pet’s body, entire body, with a single application. So that’s what it boils down to.” Id. at 44, PagelD # 219. On a third occasion: “So the question simply is, does this product ... translocate over the pet’s body. If it does there is no case, if it doesn’t you have a problem with what you’re claiming, you have to stop claiming it.” Id. at 52, PagelD # 227. In another exchange, the plaintiffs expressly agreed with the district court’s categorization of the case:

JUDGE POLSTER: .... This is a one-issue case. Okay? I mean, does this product disperse over the pet’s body? If it does, there’s no case. If it doesn’t, we’ve got a false representation. That’s it. I mean, and it’s false for everyone, because that’s the only reason you would get the product. If it only works on the pet’s neck, who cares, it’s worthless.
MR. CLIMACO [counsel for plaintiffs]: Your Honor, we agree. That’s the basic simplicity of the case.

Id. at 32, PageID # 207.

The district court then crafted an evi-dentiary plan for handling the case. In so doing, the district court again expressed concerns about spending millions of dollars in discovery. The evidentiary plan was discussed as follows:

JUDGE POLSTER: If [Bayer and Merial have] a good study ... it will be up to the plaintiffs to demonstrate conclusively to me through experts what’s wrong with your study, or else they’re out. I’ll dismiss the claim, and they can go to the Court of Appeals, and then they’re not going to succeed. Okay? That will be as a threshold matter. If
... [Bayer and Merial produce the study,] then it’s up to the plaintiffs to show why [the] study was inadequate, incomplete, false, fraudulent, whatever they want to say, through some expert,
So do plaintiffs agree with that?
MR. CLIMACO [counsel for plaintiffs]: Yes, we do, Your Honor.

Id. at 48-49, PageID # 223-24.

Bayer and Merial expressed concern about the district court’s proposed eviden-tiary plan. They stated that “it seems like what we’re having here is almost a trial simply with comments by counsel, and no witnesses and no evidence^]” Id. at 43, PageID # 218. Bayer and Merial further requested an alternative procedure, which would have involved additional briefing on the scientific issues as well as expert affidavits. The plaintiffs’ attorney objected to Bayer and Merial’s suggestion, and was reluctant to adopt this alternative procedure:

MR. CLIMACO [counsel for plaintiffs]: Your Honor, it just seems to me that all we’re doing [if the alternative procedure is accepted] is opening up full-scale discovery.

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Bluebook (online)
752 F.3d 1065, 2014 WL 2209024, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kevin-simms-v-bayer-healthcare-llc-ca6-2014.