Montera v. Premier Nutrition Corporation

Background

This consumer class action alleges violations of New York General Business Law §§ 349 and 350 concerning Premier’s Joint Juice product. Before the scheduled May 23, 2022 trial, Mary Beth Montera and Premier filed motions in limine, which are requests to decide in advance whether particular evidence or arguments may be presented to the jury.

Montera’s Motions

1. Federal standards for drugs and dietary supplements. Premier stipulated that it would not argue that Montera or her experts were trying to enforce drug standards against Joint Juice, discuss standards governing drugs, or discuss federal requirements for selling or marketing dietary supplements. The court nevertheless held that Premier could present evidence about the Food and Drug Administration’s scientific standard for dietary supplements. The court found that evidence relevant because Premier was entitled to present a statutory safe-harbor defense under New York law. The motion was denied as to that topic.

2. Attorney retention and advertising. Premier agreed not to present evidence that the case was “lawyer-driven,” describe Montera’s counsel’s litigation strategy, disclose attorney work product or privileged communications, or address whether Montera or her counsel was paying litigation costs. The court granted the motion except that Premier could make a limited inquiry into how Montera became involved in the case and whether she was dissatisfied with Joint Juice before learning about the case through an attorney advertisement.

3. The Sonner appeal. Premier stipulated that, if Kathleen Sonner did not testify, it would not introduce information about the Sonner appeal. Because the court had excluded Sonner from testifying, it granted Montera’s motion to exclude reference to that appeal and the related dismissal.

4. Anecdotal consumer-satisfaction evidence. The court noted that Dr. Stuart Silverman’s anecdotal opinions about consumer satisfaction with glucosamine had previously been excluded. It denied the motion as to Dr. Kevin Stone’s experience hearing patients report joint-health benefits from glucosamine and chondroitin. The court found that testimony relevant to Stone’s decision to create Joint Juice and his decisions while working at the company, and not hearsay when offered to show its effect on Stone rather than the truth of the patients’ statements. Montera could raise the objection again at trial if Premier sought to use the testimony for another purpose.

5. Regulatory inaction, approval, and endorsement. Premier did not oppose excluding arguments that the Food and Drug Administration or Federal Trade Commission had approved or endorsed Joint Juice, its advertising or labeling, its uses, or its ingredients. The court denied the motion as to evidence concerning regulatory inaction because it could be relevant to Premier’s intent in complying with regulations. But the court stated that arguments implying that agency inaction meant the agencies had found Premier’s labels not misleading would be improper and would be excluded.

6. Damages, interest, and attorney fees. Premier stipulated that it would not present evidence or argument about attorney fees or interest on the judgment. Montera stated that she would no longer pursue actual, treble, or punitive damages as separate requested forms of relief. The court held that she still had to prove the amount of actual damages because that amount was needed to determine whether statutory damages were greater. The jury would determine the number of units sold and the amount of actual damages; the court would then decide whether actual or statutory damages should be awarded. The court granted the motion as to evidence and argument concerning statutory damages. It did not decide at that time whether due-process limits might apply to a potentially large statutory-damages award.

Premier’s Motions

1. Other Joint Juice lawsuits. The court granted Premier’s motion to exclude references to other lawsuits filed by Montera’s counsel. The court found those lawsuits irrelevant and stated that named plaintiffs from those cases would not testify. The court would give an instruction addressing references to those cases in documents such as expert reports.

2. Post Holdings, Inc. Premier, which the opinion describes as a subsidiary of Post Holdings, sought to exclude references to Post Holdings. The court denied the motion because Post Holdings’ name appeared on documents Montera wanted to introduce. Montera could refer to Post Holdings only as it related to documents that mentioned it.

3. Financial condition. Because Montera stated that she would no longer pursue punitive damages, the court found the financial condition of any party irrelevant and granted Premier’s motion to exclude that evidence.

4. Google AdWords. The court denied Premier’s motion to exclude evidence that it used Google AdWords to increase Joint Juice’s visibility in searches for terms such as “arthritis” and “pain.” The court found the evidence relevant and highly probative of Montera’s arguments about Premier’s marketing strategies, and not improperly prejudicial or cumulative.

5. Minimal clinically important difference. The court denied Premier’s motion to exclude Dr. Timothy McAlindon’s use of “minimal clinically important difference” and related terms such as “clinical significance” and “clinically meaningful.” The court stated that concerns about how scientists and physicians use those terms could be addressed through cross-examination.

6. Premier’s internal studies. The court denied Premier’s motion to exclude evidence and testimony about its consumer-preference studies. The court found the studies relevant to Premier’s marketing strategies and not unduly prejudicial. If Montera described the studies as evidence of consumer perceptions of the Joint Juice label, Premier could renew its objection at trial.

7. Medical experts and consumer perceptions. The court approved Montera’s stipulation that physicians would not testify about how they believed consumers or patients interpreted Joint Juice’s advertising or whether patients thought glucosamine or chondroitin worked. The court limited the exclusion concerning patients’ views to expert witnesses. Dr. Stone’s testimony about patient views was not excluded when offered for the limited purpose of explaining why he created the Joint Juice product.

Disposition

Judge Seeborg concluded that the motions in limine were denied and granted as described above. This order addressed trial evidence and arguments; it did not decide the parties’ underlying false-advertising claims.