Top Defense Verdict: Lewert v. Boiron USA Inc.

The plaintiffs in this consumer class action sought $10 million for claiming that France-based homeopathic medicine maker Boiron's flu-relief drug Oscillococcinum is merely a sugar pill and that the company misrepresented its health benefits. That allegedly violated California's Unfair Competition Law and the Consumer Legal Remedies Act.

At first, Orrick, Herrington & Sutcliffe LLP appeared to face a daunting task in defending the world's leading manufacturer of homeopathic drugs. The plaintiffs' false advertising allegation essentially put the homeopathic drug industry itself on trial.

But Christina Guerola Sarchio and her client had a good answer to the plaintiffs' claims, and the company chose to go to a rare jury trial to assert it. "We had two clinical trials that had been peer reviewed that showed that patients who used the remedy were, if fact, relieved of flu-like symptoms," she said. She argued that the plaintiffs failed to meet their burden of proof.

Of course, going to trial instead of settling — the customary course of action in mass tort cases — posed risks. "I've been practicing law for 20 years and this was my first consumer class action jury trial," Sarchio said. "Defendants usually get cold feet and settle, and this was a bet-the-company case. This client was willing to take the risk."

Oscillococcinum's active ingredient is an extract of duck heart and liver. In opening and closing statements, Sarchio said that over Boiron's 80-year history, the drug has been "trial-tested and trial-proven." Beyond decades of positive consumer feedback, there have been clinical studies and expressions of approval by pharmacists and physicians, she argued.

She was able to demonstrate that lead plaintiff Christopher Lewert — despite his claim that the drug didn't work — suffered a sore throat, congestion and diarrhea, felt sick and tired, and had a headache and some nausea. He took the drug that night and the next morning, then went out to lunch, ran an errand and went out to dinner and a movie.

"We had a physician expert who could evaluate the evidence," Sarchio said. "They had nothing to counter, and only one individual plaintiff to testify."

"The jury was incredibly attentive. They came back in two hours, and that included lunch." Sarchio also prevailed at a subsequent bench trial on the Unfair Competition Law claims. "The client was tremendously relieved and grateful," she said of the outcome.

In addition to Sarchio, partner Valerie M. Goo was a key member of the Boiron trial team.

— John Roemer