Plaintiffs Challenging Gerber’s Probiotic Health Claims Must Provide Medical Records

A New Jersey federal court has granted Gerber’s motion to compel
discovery of medical records in a consumer putative class action alleging
that the company misrepresented its probiotic formula as capable
of improving infant immune systems. In re Gerber Probiotic Sales
Practices Litig., No. 12-835 (D.N.J., order entered April 10, 2015).

Gerber requested medical records for the children who ingested the
products, but the plaintiffs objected that the “overly broad” request
violated their rights of privacy and that the records were subject to
physician-patient privilege. The court agreed with Gerber, finding “a
legitimate need for medical records as there is no other source that
could test the actual effectiveness of the products that claim to produce
immune system health. Proof in the form of scientific studies and expert
testimony may not be sufficient,” the court said, so “actual facts or the
lack thereof may be essential.” Further, the medical records are relevant
to the effectiveness of the products and no other source could accurately
provide objective medical information, the court found.

Issue 562