Blumer v. Acu-Gen Biolabs, Inc., Civil Number 06-10359-RCL (D.C. Mass. July 28, 2009).

On July 28, 2009, United States District Judge William G. Young of the District of Massachusetts handed down a memorandum and order on a plaintiffs’ motion to amend to file their third amended complaint.

This case arises from the sales and marketing of a product called Baby Gender Mentor Kit, which purportedly detects the gender of a fetus through genetic analysis of maternal blood samples. The plaintiffs alleged that the defendants falsely promoted the Gender Mentor product as being 99% accurate, caused customers consequential damages averaging $1,000 per customer, inflicted emotional distress, and failed upon request to provide customers with the 200% refund guarantee. 

The Gender Mentor Kit was sold online exclusively through two websites and retailed for $25.00. Once the user obtained a blood sample, the kit was mailed to the defendants with a cost of lab testing was $250.00. The websites guaranteed that all tests results would be absolutely 99.9% accurate and guaranteed that customers would be entitled to a 200% refund if the results were not correct.

The plaintiffs claimed that the defendants intentionally misrepresented the Gender Mentor’s scientific accuracy. The plaintiffs also alleged that women with incorrect test results could not obtain their refunds because of the defendants’ reasons including chromosomal abnormalities in the fetus, vanishing twin syndrome, and infant deformities. Based on the defendants’ reasons for incorrect results given to some of these women seeking refunds, the plaintiffs alleged that women feared for their babies’ health and undertook unnecessary and dangerous procedures including multiple ultrasounds, amniocentesis, and chromosomal testing.

One-hundred and thirteen (113) named plaintiffs filed a second amended complaint in October 26, 2006. When the Court granted the defendants’ motion to dismiss for lack of personal jurisdiction, the plaintiffs filed a motion to amend their complaint based in part on subject matter jurisdiction under the Class Action Fairness Act. 

The plaintiffs’ third amended complaint sought a putative class comprising all 6,521 purchasers of the Gender Mentor. Counsel for the plaintiffs submitted a supporting affidavit that the average out-of-pocket damage per class member was approximately $1,000 per person. The counsel stated that the calculation was based on their work product gathering information from class members. 

The Court held that based on the facts as alleged and supported by the counsel’s affidavit, the out-of-pocket consequential damages for a putative class of 6,521 members would reach a total of $6,521,000. The Court stated that based on the alleged consequential damages alone, the plaintiffs sufficiently exceeded the statutory minimum under CAFA. The Court allowed the plaintiffs to file their third amended complaint and instructed them to file their motion for class certification.