Jury verdict in favour of homeopathic remedy

Jury verdict in favour of homeopathic remedy

Ninth Circuit affirms jury verdict in favour of homeopathic remedy for flu-like symptoms

ARTICLE BY

Lawrence I Weinstein

Tiffany Woo

Originally published in The National Law Review (December 12, 2018)

On November 8, 2018, the Ninth Circuit affirmed a jury verdict in a consumer class action deceptive advertising case in favour of Defendants Boiron Inc. and Boiron USA, Inc. (together, “Boiron”), the sellers of a homeopathic treatment for flu-like symptoms called Oscillococcinum (“Oscillo”). Although the Ninth Circuit’s memorandum decision is marked “Not for Publication” and therefore is non-precedential under Ninth Circuit rules, the decision is still worth noting, as jury verdicts in class action false advertising cases are rare.


Oscillo’s active ingredient

According to the appellate briefs, Oscillo’s active ingredient is a compound (extracted from the heart and liver of the Muscovy duck for those foodies in our readership) that is subjected to a homeopathic dilution process. The diluted compound is then sprayed onto specially-manufactured granules.

Plaintiff argued that, due to the homeopathic dilution process, Oscillo was essentially “water sprayed on sugar,” which could not provide the relief from flu-like symptoms that Boiron advertised. Plaintiff claimed that Boiron had therefore violated two California deceptive advertising statutes, the Unfair Competition Law (“UCL”) and Consumers Legal Remedies Act (“CLRA”).


Conclusion

At the conclusion of a one-week trial in the Central District of California, the jury found in Boiron’s favour that its representations that Oscillo relieves flu-like symptoms were not false. On appeal, the Ninth Circuit affirmed, finding that the jury verdict did not constitute plain error because Boiron presented sufficient evidence from which the jury could have concluded that Oscillo actually works against flu-like symptoms.


Battle of the experts
This was a “battle of the experts” for the jury, the court wrote, that could not be relitigated on appeal. And the jury appeared to have believed Boiron’s expert, clinical studies, and anecdotal evidence more than it believed the plaintiff’s expert, according to the court.


The Ninth Circuit further noted that in explicitly finding that Boiron’s claim that Oscillo treated flu-like symptoms was not false, the jury must have implicitly rejected Plaintiff’s argument that Oscillo was merely a sugar pill or water sprayed on sugar. Nor did Plaintiff offer a theory of how Boiron’s representations could be false if the product did indeed treat flu symptoms.

The case is Christopher Lewert v. Boiron Inc., et al., No. 17-56607 in the Ninth Circuit.

© 2018 Proskauer Rose LLP.

Message from the ECH General Secretary

Message from the ECH General Secretary

Dear colleagues,

The Symposium “Homeopathy in the 21st Century”, jointly organised by ECH, IAVH and the Association of Homeopathic Physicians in Bulgaria, was a great success. It was attended by more than 400 medical doctors, veterinarians and pharmacists from 27 countries.

The lectures and presentations discussed the integration of conventional and homeopathic medicine and showed practical examples. Dr Gheeta Krishnan Gopalakrishna Pillai, Technical Officer at the Traditional, Complementary, and Integrative Medicine Unit at the World Health Organization presented the WHO Traditional Medicine Strategy 2014-2023.

The Symposium that took place in Sofia on 17 and 18 November was preceded by Workshops on Research and Provings, a Veterinarian Seminar and the ECH General Assembly. The General Assembly elected Dr Tiziana di Gampietro as new Research Coordinator and re-elected Dr Sara Eames, as Vice-president, Dr Arlette Blanchy, as Treasurer and Dr Ilse Muchitsch, as Pharmacy Coordinator.

The press conference attracted many journalists from both the health and mainstream press. The Bulgarian media published interviews with Dr Raj K. Manchanda, Director General of the Central Council for Research in Homeopathy of India, Dr Hélène Renoux, ECH President, Dr Edward de Beukelaer, IAVH President and Dr Sigrid Kruse from the University Children’s Hospital in Munich.

The Symposium was accredited by the Bulgarian Medical Board, the Bulgarian Medical Association and the Bulgarian Pharmaceutical Union.

We are very grateful to the Association of Homeopathic Physicians in Bulgaria, and specially to Dr Dora Pachova, Chairperson of the Association, for the great amount of time and effort devoted to make this Symposium a success.

We are also grateful to all speakers and participants, specially to the big number of Bulgarian general practitioners and specialists that attended the Symposium, because they showed that homeopathy can help to improve quality of care, patients’ safety and cost-benefit in health care.

Dr Jaume Costa

ECH General Secretary

Read more from ECH Newsletter

Death of Dr Peter Fisher

Death of Dr Peter Fisher

It was with great shock and sadness that we received news of the death of the Faculty President, Dr. Peter Fisher, in a road accident near the Royal London Hospital for Integrated Medicine (RLHIM), London, UK, on 15th August 2018.

Our thoughts go out to his family first of all at this dreadful time. They have lost a loved one, whilst we have lost a leader.

Dr. Fisher was Director of Research at the hospital, Europe’s largest centre for integrative medicine. He was also Physician to Her Majesty Queen Elizabeth II. The Royal family’s association with homeopathic medicine extends back to Queen Victoria, who admired and was treated by Dr. Frederic Quin, one of the founders of the London Homoeopathic Hospital in 1849; George VI permitted “Royal” to be suffixed to its name in 1948.


Long tradition

By long tradition one of the monarch’s physicians unofficially takes responsibility for homeopathic treatment, and it was this role that Peter took on in 2001. He modestly suggested that his appointment was “a matter of being in the right place at the right time” and praised both the Queen and the Prince of Wales for their open-mindedness.

A graduate of Cambridge University and a Fellow of the Royal College of Physicians and the Faculty of Homeopathy, he was a widely published expert in rheumatology and forms of complementary and alternative medicine. He was previously Honorary Consultant Rheumatologist at King’s College Hospital.

Dr. Fisher chaired the World Health Organisation’s (WHO) working group on homeopathy and was a member of WHO’s Expert Advisory Panel on Traditional and Complementary Medicine. He was awarded the Albert Schweitzer Gold Medal of the Polish Academy of Medicine in 2007.

He worked for more than 30 years at the Royal London Homeopathic Hospital (renamed the Royal London Hospital for Integrated Medicine in 2010) Dr. Fisher was the hospital’s Director of Research from 1996 and, in addition, its Clinical Director from 1998 to 2014.

Peter Fisher was one of homeopathy’s most devoted and convincing champions – articulate and authoritative as a writer and speaker. As the Faculty report says ‘it is no exaggeration to say that in Peter we have lost an irreplaceable talent, a giant in all his fields of professional endeavour – as a clinician, a researcher, an academic and a champion of medical homeopathy. It is a huge loss to his family and our community.


Peter Antony Goodwin Fisher

Peter Antony Goodwin Fisher was born on September 2, 1950, to Antony Fisher and his wife Eve. He was educated at Tonbridge School and Emmanuel College, Cambridge, before training at Westminster Hospital Medical School.

His first encounter with alternative medicine came when he went on a field trip to China while he was an undergraduate.

“I was astonished to see a woman having surgery on her abdomen without an anaesthetic,” he recalled. “

To manage the pain, all she had was three little acupuncture needles in her left ear. This was something I hadn’t been taught in any Cambridge lecture.”

He became ill himself as a medical student and, when his doctors told him that nothing could be done to alleviate his symptoms, he gave himself homeopathic treatment, with some success.

There were no opportunities at the time to be trained as a consultant in homeopathy, so he took a position as a research fellow in rheumatology at St Bartholomew’s Hospital. By good luck, a professor at the hospital shared his interest in homeopathy and they published one of the first serious studies of the discipline, in the British Medical Journal.

From 1986 he was the editor of the journal “Homeopathy”.

Peter Fisher was a Fellow of the Faculty of Homeopathy and had recently become its President; he was also elected a Fellow of the Royal College of Physicians in 1997. He traveled around the world as a lecturer, noting that homeopathy was taken more seriously in most other countries and suggesting that this was because, in the UK, patients are unusually submissive to the will of their doctors.

He died near the RLHIM when he was struck by a lorry while cycling.

Peter Fisher married, in 1997 to Nina Oxenham; they had two daughters.

Dr Peter Fisher, born September 2 1950, died August 15 2018.

Vice-President, Dr Gary Smyth, is to step up to the Faculty Presidency pro tem. All colleagues have the opportunity to mourn Peter’s loss and celebrate his life at Faculty Congress in Liverpool 11 – 14 October 2018.