By Mike Curley

Law360 (March 17, 2021, 6:18 PM EDT ) A California man suing CVS Health with allegations that its hand sanitizer fails to live up to its promise of killing 99.99% of germs is asking a federal court for class certification, saying his claims are ideal for class treatment because they rest on questions common to the item's thousands of buyers.

Joseph Mier told the California federal court Monday the central questions in the case — whether the label on the products are misleading and whether reasonable consumers would rely on that labeling — are subject to class-wide evidence, which he proffered in the form of his expert witnesses.

His motion cites depositions from Philip M. Tierno Jr., a microbial expert who testified that the sanitizer does not kill 99.99% of germs, as well as marketing expert Bruce Silverman, who testified that consumers would find the claim material when deciding whether to purchase the product.

The motion seeks to certify a class consisting of all California residents who bought the hand sanitizer between four years before Mier filed his suit and the date of class certification. It also seeks to name attorneys from Wilshire Law Firm PLC as class counsel.

According to the motion, CVS has sold more than $7 million worth of the hand sanitizer during the class period, so Mier argued there is "clearly" a large number of people in the class and more than enough to justify class treatment.

In addition, everyone in the class was exposed to the same label, Mier argued, so the question of whether that label is misleading is class-wide and subject to class-wide evidence, without any individualized questions that would defeat class certification.

Nor would reliance pose an individual question, he added, as the reasonable consumer standard applies, and his expert witness has testified that buyers would indeed rely on the "99.99%" claim when buying hand sanitizer.

According to court documents, Mier first filed his suit in state court in May, and CVS removed it to federal court last week. Mier alleges the labeling on CVS store-brand hand sanitizers is misleading as it claims the product is effective against 99.99% of germs, but that there are a number of pathogens it cannot destroy.

In October, CVS moved to throw out the suit, arguing Mier was an "opportunist" who hasn't even said he used the product, let alone that he was injured by the so-called false advertisement. In its motion, the drugstore chain told the court no reasonable consumer would expect the hand sanitizer to kill 99.99% of all germs known to mankind, especially as the back of the label clarifies that it works on "99.99% of many common harmful germs & bacteria."

In Monday's motion, Mier argued CVS' claim is based on a study that only tested the sanitizer against 25 types of bacteria, and is no basis even for the claim when accounting for the disclaimer, as the company has not tested it against bacteria common to food preparation, like salmonella.

"We believe it's a strong case for class certification because the major issues at stake for each cause of action, whether the 99.99% statement is in fact false and whether it would be material to a reasonable consumer, are class-wide issues to be resolved by class-wide evidence," Thiago Coelho of Wilshire Law Firm PLC, representing Mier, told Law360 on Wednesday.

An attorney for CVS declined to comment Wednesday.

Mier is represented by Justin F. Marquez, Thiago Coelho, Robert Dart and Cinela Aziz of Wilshire Law Firm PLC.

CVS is represented by Carol R. Brophy, Danielle Vallone and Melanie Ayerh of Steptoe & Johnson LLP.

The case is Mier v. CVS Health, case number 8:20-cv-01979, in the U.S. District Court for the Central District of California.

--Editing by Janice Carter Brown.

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