Top Defense Results: Gisvold v. Merck & Co. Inc. et al.

Within five months of being retained to defend Merck & Co. in a consumer class action accusing it of overcharging for sunscreen, attorneys at Reed Smith LLP convinced a federal judge to dismiss the case.

The plaintiff, who demanded $5 million, alleged that consumers associate higher SPF values with greater sun protection although products with SPF values of over 50 do not provide more clinical benefits, according to court documents.

"We did a very early motion to dismiss and we pointed out that the primary issue in the case is whether these products provide an increased clinical benefit," said David E. Stanley, a partner at the firm and lead attorney on the case. "That is something that the [Food and Drug Administration] would decide."

One challenge attorneys faced was that there were two other class actions, both involving sunscreen manufacturers, which judges allowed to proceed.

"In those cases, the judges denied the motion to dismiss," Stanley said. "That was the biggest obstacle... to get the court focused on our arguments and not rely on other cases."

They were able to do so by pointing out that the labeling on its Coppertone line of sunscreen products already complied with Federal and Drug Administration rules, and that the agency was in the process of rulemaking about the clinical benefits of sunscreen with SPF values over 50.

"They wanted the court to order the company to put something on the label clarifying what the numbers meant," Stanley said.

U.S. District Judge Dana M. Sabraw agreed with Stanley, citing the FDA regulations in his written decision. Gisvold v. Merck & Co. Inc. et al., 14-CV01371 (S.D. Cal., filed June 4, 2014).

"FDA has primary jurisdiction to make initial determination on issues within its statutory mandate, and will request a court to dismiss, or to hold in abeyance its determination of..." any issue that has not already be decided by the organization, Sabraw wrote in his November ruling.

- MELANIE BRISBON