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Gerald Godec, On Behalf of Himself and All v. Bayer Corporation

November 11, 2011

GERALD GODEC, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
BAYER CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: James S. Gwin, United States District Judge:

OPINION & ORDER: [Resolving Doc. Nos. 78, 102, 104, 118, 139]

Plaintiff Gerald Godec moves to certify as a class action his breach-of-express-warranty claim against Defendants Bayer Corporation and Bayer Healthcare LLC (hereinafter, collectively, Bayer). [Doc. 102.] Bayer opposes the motion.*fn1

I.

From 2005 through 2009, Bayer sold, among other things, multivitamins in Ohio. Two brands of those multivitamins are at issue in this case: (1) One-A-Day Men's Health Formula ("Men's Health Formula"), that Bayer sold in Ohio from 2005 through 2009; and (2) One-A-Day Men's 50 Advantage ("Men's 50 Advantage"), that Bayer sold in Ohio from 2007 through 2009.

In 2006, Godec-a long-time multivitamin purchaser-switched from his regular brand of multivitamin to Bayer's Men's Health Formula. Godec says that he made the switch because the packaging for the Men's Health Formula vitamins indicated that they were specially-formulated to promote prostate health, a particular concern of Godec's. For example, during most of 2006, the packaging for Men's Health Formula vitamins (1) described the vitamins as a "Complete Multivitamin for Men Plus More to Support," among other things, a "HEALTHY PROSTATE," (2) noted that the vitamins would "Support Prostate Health with a unique combination of Lycopene, Selenium, Vitamin E, and Zinc," (3) listed lycopene and selenium as "Key Ingredients" for a "HEALTHY PROSTATE," and (4) asked prospective purchasers whether they "kn[e]w that prostate health [was] among the top health concerns for men over 35," reassuring that "One-A-Day Men's Health Formula is a complete multivitamin plus Lycopene, an antioxidant which studies have linked to prostate health." [Doc. 91-1.]

Godec-who also remembered seeing advertisements touting the prostate-health benefits of And, in any event, "[t]he court should freely give leave [to amend a pleading] when justice so requires." Fed. R. Civ. P. 15(a)(2). The Court finds that Godec's amendment was not "brought in bad faith[ or] for dilatory purposes." See Colvin v. Caruso, 605 F.3d 282, 294 (6th Cir. 2010). Nor does it "result[] in undue delay or prejudice" to Bayer. See id. Indeed, any risk of prejudice is offset by the trial date: April 16, 2012. That's five months away. Accordingly, the Court DENIES Bayer's motion to strike the amended complaint, [Doc. 118], and DENIES Bayer's motion to strike the amended motion for class certification, [Doc. 104.] McKinney's original motion for class certification, [Doc. 78], is DENIED at moot.

Men's Health Formula-purchased and consumed the vitamins for more than three years. Then, in 2009, he read a news story suggesting that Bayer's vitamins did not promote prostate health. He stopped buying Bayer's vitamins, returned to his old brand, and joined this lawsuit.

Godec's claim-the one he seeks to certify for class treatment-is that Bayer created (and breached) an express warranty with the purchasers of its specially-formulated Men's vitamins when it promoted them as supporting prostate health. According to Godec, those vitamins do not in fact support prostate health.

He proposes a class of:

All persons who purchased One A Day Men's Health Formula and/or One A Day Men's 50 Advantage Vitamins ("Men's Vitamins") in the State of Ohio, from the date Men's Vitamins were first sold in Ohio to December 31, 2009 ("Class"). [Doc. 102, at 1.]

Because Godec made all of his vitamin purchases in Ohio, and because the proposed class is limited to persons who made purchases in Ohio, the parties apparently agree that every class member's claim arises under Ohio law. Thus, for Godec to prevail on his individual claim for breach of express warranty, he will have to prove (1) a warranty existed; (2) Bayer's vitamins failed to perform as warranted; and (3) that he was injured by their failure. See St. Clair v. Kroger Co., 581 F. Supp. 2d 896, 902 (N.D. Ohio 2008). In order to pursue his claim as a class action, however, he also must satisfy the requirements of Federal Rule of Civil Procedure 23.

II.

"One . . . member[] of a class may sue . . . as [a] representative part[y] on behalf of all members only if:

(1) the class is so numerous that joinder of all members is impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative part[y] are typical of the claims or defenses of the class; and

(4) the representative part[y] will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a).

In addition, "the court [must] find[] that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3).*fn2

Before the Court can certify a proposed class, it must conduct "a rigorous analysis" of the plaintiff's claims and their fitness for class-wide resolution. Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982). A decision on class certification is not, however, an adjudication of the merits of the case. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974). Rather, it is merely a determination "whether the requirements of Rule 23 are met." Id.

Nevertheless, before turning to the requirements of Rule 23, and at the risk of taking matters out of order, the Court identifies a glaring problem with the proposed class: Godec never purchased Bayer's Men's 50 Advantage vitamins; he purchased only Men's Health Formula vitamins. [Doc. 126-1.] A class representative must himself have standing to assert the claim he seeks to certify. See Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 40 n.20 (1976) ("That a suit may be a class action . . . adds nothing to the question of standing, for even named plaintiffs who represent a class 'must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.'" (quoting Warth v. Seldin, 422 U.S. 490, 502 (1975)). Because Godec never purchased Men's 50 Advantage, he has suffered no injury from any breach of any warranty with regard to that product. Accordingly, he lacks standing to make claims regarding the Men's 50 Advantage vitamins, and the Court DENIES the motion to certify a class containing persons who purchased only Men's 50 Advantage vitamins.*fn3

The Court will, however, consider whether it can certify a narrower class than the one Godec seeks, addressing ...


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