Rader v. Teva Parenteral Medicines, Inc.
Goodwin Procter attorneys defeated a motion for class
certification in a case brought on behalf of approximately 60,000
former patients of two Las Vegas endoscopy centers who alleged they
were exposed to (but not infected by) blood-borne diseases
including Hepatitis C due to the centers' alleged mishandling
of Teva's prescription anesthetic, propofol. Rader v. Teva
Parenteral Meds., Inc., 276 F.R.D. 524 (D. Nev. 2011).
Among other reasons for denying class certification, the court held
that the plaintiff was not an adequate class representative under
Rule 23(a)(4) because his decision to abandon emotional distress
claims created an "insurmountable conflict between his own
interests and that of the class" in that class members would
be bound by the plaintiff's decision not to bring emotional
distress claims in the event of a later final judgment. The court
also held that there were individualized causation issues as well,
including the need to evaluate whether any individual was treated
with Teva's propofol, the injection practices used to
administer the propofol to each person, and whether the person was
actually exposed to a blood-borne pathogen.
Ratliff v. Merck & Co., Inc.
--
Nicole S. Naghi
On February 10, 2012, a Kentucky Appellate Court
reversed the certification of a class of Vioxx purchasers who
alleged that the drug's manufacturer, Merck, falsely advertised
Vioxx's safety to doctors when it knew the drug was dangerous.
Ratliff v. Merck & Co., Inc., 2012 Ky. App. LEXIS 31
(Ky. Ct. App. Feb. 10, 2012). The plaintiff sought a class
consisting of Kentucky residents "who have purchased and taken
Vioxx and who, upon recommendation of the FDA, have contacted or
will contact their physician seeking advice regarding
their use of Vioxx." The proposed class sought to assert
claims for violation of the Kentucky Consumer Protection Act and
for fraud and unjust enrichment.
Merck challenged the trial court's decision to certify a class
because, among other reasons, damages for fraud could not be
determined without individualized fact finding. The plaintiffs
argued that the trial court had correctly applied a "fraud
upon the market" theory wherein certain elements of fraud,
including "reliance, ascertainable loss and causal
nexus," could be presumed. Merck argued that this theory did
not apply in the prescription drug context.
The Court of Appeal agreed with Merck. The court rejected the
application of the fraud-on-the-market theory in the context of a
prescription drug case. It also held that common issues did not
predominate because each Vioxx purchaser's claim required
individualized proof of liability and damages, stating that
"if the action were tried as a class, after the common
questions of Merck's representations in its marketing campaign
were decided, the case would essentially fragment into a series of
amalgamated 'mini-trials' on each of these individualized
questions." The court also found that each plaintiff had a
different experience with his or her doctor and "may have
experienced different effects from the drug as compared to its
risks," which meant that "individualized questions would
substantially overtake the litigation."
This decision is significant for defendants in prescription drug
actions both in its rejection of the fraud-on-the-market theory and
its conclusion that generalized evidence could not be used to
establish class-wide liability.
Brandner v. Abbott Laboratories, Inc.
--
Jennifer Kennedy Gellie
The U.S. District Court for the Eastern District of
Louisiana recently denied a motion to certify a class in a products
liability action concerning allegedly contaminated baby formula.
Brandner v. Abbott Laboratories, Inc., 2012 WL 195540
(E.D. La. Jan. 23, 2012). The plaintiff sued Abbott Laboratories
after it recalled Similac baby formula following its discovery of
beetles in a finished batch of formula. The plaintiff alleged that
her child suffered gastrointestinal problems after ingesting
formula from the recalled batch. She sought certification of a
class of Louisiana residents who had purchased Similac during the
recall period.
In denying class certification, the court made three holdings on
the issue of predominance that are important to defendants in
products liability actions. First, it held that under the Louisiana
Products Liability Act, the plaintiff had to show that "the
product was unreasonably dangerous when it left the
manufacturer's control," which could not be done on a
class-wide basis notwithstanding the existence of the recall
notice. Second, the court found that proximate cause could not be
proved with general evidence because in order to know whether a
particular child was injured as a result of drinking the formula, a
"highly individualized" assessment of factors such as
"family and medical history; age; gender; [and] diet" was
required, which was incompatible with class litigation. Finally, as
to damages, it noted that putting a value on the request for
emotional distress damages would require the type of
"mini-trials" that the Fifth Circuit advised against in
Bell Atlantic Corp. v. AT&T Corp., 339 F.3d 294 (5th
Cir. 2003).
In addition to her claims under the Louisiana statute, the
plaintiff also brought a redhibition claim under Louisiana law,
which allows a plaintiff to recover economic losses if a product
was useless for its intended purpose at the time of sale. The court
found that the redhibition claim failed the predominance and
superiority requirements of Rule 23(b)(3) because it required a
showing that each class member purchased a contaminated product,
which could not be determined without individualized fact
finding.
In re Ford Motor Co.
--
Kyle Tayman
In In re Ford Motor Co. E-350 Van Products Liability
Litigation (No. II), 2012 WL 379944 (D.N.J. Feb. 6, 2012), the
court refused to certify a putative class of individuals who sought
damages because their vans were allegedly defective due to the risk
of rollover. The plaintiffs asserted claims for breach of express
and implied warranties, violation of state consumer fraud statutes,
and unjust enrichment. In a lengthy opinion, relying in part on
Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011),
the court held that individual issues predominated and denied class
certification under Rule 23(b)(2) and (b)(3).
In conducting a "rigorous analysis" of the Rule 23(b)(3)
requirements, the court considered the substantive elements of the
causes of action and found that each van owner's claim raised
individualized issues as to the representations the person
received, reliance, causation and damages. For instance, the court
found that the rollover risk disclosed in manuals varied throughout
the class period so that different van owners received different
disclosures and relied on different information; certain plaintiffs
knew about the rollover risk and therefore could not prove
causation; and the injury requirement could not be proven on a
class-wide basis for certain claims. The court also said that the
claims of many van owners were likely time-barred or would require
individualized inquires to determine whether the applicable
limitations period was equitably tolled, which weighed against
class certification.
The court applied these same findings to deny certification of a
class seeking injunctive relief under Rule 23(b)(2).
Goodwin Procter LLP is one of the nation's leading law firms, with a team of 700 attorneys and offices in Boston, Los Angeles, New York, San Diego, San Francisco and Washington, D.C. The firm combines in-depth legal knowledge with practical business experience to deliver innovative solutions to complex legal problems. We provide litigation, corporate law and real estate services to clients ranging from start-up companies to Fortune 500 multinationals, with a focus on matters involving private equity, technology companies, real estate capital markets, financial services, intellectual property and products liability.
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