Unreported / Non-Citable
Background
Condalisa LeGrand sued Abbott Laboratories in the Northern District of California, alleging that statements on the labels of Abbott's Ensure nutrition drinks — such as 'nutrition shake,' 'Complete, Balanced Nutrition,' and '#1 Doctor Recommended Brand' — are false and misleading because the products contain between 9 and 21 grams of added sugar per serving. Her operative Second Amended Complaint challenges statements on three products: Ensure Original Nutrition Shake, Ensure Plus Nutrition Shake, and Ensure Complete Nutrition Shake. She asserts claims under California's Unfair Competition Law, False Advertising Law, and Consumers Legal Remedies Act, along with warranty and other claims, on behalf of a proposed class of California purchasers.
The case had a long procedural history before this order. The court earlier dismissed a New York co-plaintiff for lack of personal jurisdiction and partially dismissed certain label statements as preempted nutrient content claims. In August 2025, the court denied LeGrand's first motion for class certification, finding she failed to establish Rule 23(b)(3) predominance as to damages, and granted Abbott's motion in limine excluding the price-premium opinions of her experts, Steven Gaskin and Colin Weir. The court later granted LeGrand leave to file a renewed motion, which she supported with supplemental declarations from the same experts proposing a conjoint survey model. Abbott renewed its motion in limine, and after oral argument the court ordered supplemental briefing on whether LeGrand was pivoting to a 'net impression' theory, preemption concerns, and a potential Comcast damages-fit problem.
The Court’s Holding
The court granted Abbott's motion in limine, declining to give weight to the Gaskin and Weir price-premium opinions. Applying Rule 702 and Daubert, the court found the proposed conjoint model unreliable because it would test only two statements per product while LeGrand's theory targets the label's overall 'takeaway message,' and neither LeGrand nor her experts explained how results for a subset of statements could value the untested statements or the whole-label message. The court also found LeGrand failed to explain how the model would exclude damages attributable to label statements the court had previously ruled were preempted and could not serve as a basis for liability.
On the renewed certification motion, the court confined its analysis to predominance, the defect identified in its first order. It again rejected the full-refund model because LeGrand offered no evidence the products were devoid of value, and California law permits full restitution only when a product confers no benefit; the court noted her cited authorities arose under the FTC Act and New York law, not the California law governing her claims. It rejected the price-premium model because, with the expert opinions given no weight, LeGrand had no evidence that a price-premium approach could measure classwide damages. Because damages predominance failed, the court denied the renewed motion with prejudice and expressly declined to reach Abbott's other predominance arguments concerning deception, uniform exposure, reliance, and unjust enrichment.
Key Takeaways
- A conjoint analysis that tests only a subset of challenged label statements cannot support classwide damages when the plaintiff's theory rests on the label's overall misleading message, absent an explained methodology linking the tested statements to the whole.
- Plaintiffs pursuing a net-impression theory of food-label deception must show how their damages model excludes any price effect from statements that are preempted and therefore unavailable as a basis for liability.
- Under California law, a full-refund restitution model remains unavailable where the product provided consumers some benefit, and authority from FTC Act or other states' law does not fill the gap.
- When a court gives no weight to the plaintiff's damages experts under Daubert, a price-premium predominance showing collapses for lack of any supporting evidence.
- A renewed certification motion confined to a previously identified defect will be denied with prejudice when the plaintiff repeats the same damages theories without curing the identified shortcomings.
Why It Matters
The order illustrates how the Ninth Circuit's post-Lytle framework for unexecuted damages models interacts with Comcast's requirement that a damages model fit the plaintiff's actual theory of liability: a technically sound survey method still fails if it cannot isolate the harm caused by the challenged conduct. It also underscores the preemption trap in food-labeling cases, where a pivot to a whole-label 'net impression' theory can create, rather than solve, damages-fit problems.
Practically, the denial with prejudice ends the class-action vehicle after two attempts, leaving only the named plaintiff's individual claims. The decision is a useful data point for defendants challenging price-premium conjoint models that test proxy statements, and for plaintiffs' counsel on tying every surveyed attribute to a non-preempted theory of liability before seeking certification.