Proper Questions for Experts Subject of Disagreement in Herbal Supplements Litigation

In class-action litigation that is reliant on a 2015 investigation into dietary supplements by New York Attorney General Eric Schneiderman, attorneys can’t agree on what questions independent experts should answer.

John Darrah, a federal judge in Chicago, has identified two potential independent experts to testify in litigation pending against NBTY, Target, Walgreens and Walmart. But Amanda Groves, a Winston & Strawn LLP attorney representing the defense, said in an email that the judge “has not advised who the experts will be yet."

While the experts could be key witnesses in the case, the plaintiffs and defendants have proposed fundamentally different questions for them to answer. The questions concern the reliability of DNA testing and chemical-based testing in confirming the identity or absence of herbs in dietary supplements.

Schneiderman found through DNA barcode testing that dietary supplements sold by four retailers failed to contain many of the herbs declared on the bottles and were contaminated with undeclared ingredients. Industry representatives have said DNA may have been destroyed or degraded during the processing of herbal extracts, rendering inaccurate the attorney general’s findings.

Last year, Darrah encouraged the parties to test the products through an independent source.

More recently, the defendants have proposed asking the experts whether “a negative DNA test reliably establishes that the herbal dietary ingredient specified on the label is not present in the finished product." In relation to products that were tested by Schneiderman, they also proposed asking the experts whether there are tests or processes that “can reliably establish that the herbal dietary ingredient specified on the label is present in the finished product," and to explain their answer, according to an April 29 status report filed with the court.

“Negative DNA barcode test results … form the basis for plaintiff’s entire complaint," lawyers for the defense noted in the status report. “So plaintiffs must establish—at a minimum—the reliability of negative DNA barcode tests in determining the identity of each finished product at issue."

Plaintiffs have proposed different questions, including one that asks for a description of the difference “between DNA testing and chemical-based testing in relation to determining the ingredients in herbal supplements," according to the status report.

The other question proposed by plaintiffs asks, “Can chemical-based testing of herbal supplements, such as chromatography, conclusively establish that the ingredients in a given herbal supplement were derived from the plant identified on the bottle?"

“Plaintiffs’ proposed questions avoid putting the reliability of their own test directly at issue, and provide a comparison that will not be helpful to the court," the defendants’ attorneys wrote in the status report. “Compounding the problem with plaintiffs’ questions is that they do not tie in any way to the specific ‘accused products’ at issue in this case."

Two attorneys for the plaintiffs, with the class-action law firm Hagens Berman Sobol Shapiro LLP, did not immediately respond to requests for comment.

Last year, NBTY was one of the parties named in an amended consolidated class-action lawsuit because the company manufactures herbal supplements and sells them wholesale to a number of retailers including Target, Walgreens and Walmart, according to the 107-page complaint. GNC, the fourth retailer that was investigated by Schneiderman, was originally named in a number of class-action lawsuits, but several cases have been voluntarily dismissed against the company.

The litigation, In Re: Herbal Supplements Marketing and Sales Practice Litigation, 1:15-cv-05070, is pending in the U.S. District Court for the Northern District of Illinois.