Illinois, the Land of Lincoln, is also quite well known for abusive class action practice, including though by no means limited to certification of “drive by” class actions in certain downstate counties. We’ve also practiced in Cook County, and that venue can be tough on defendants too.
But things have been looking up in Illinois lately, and the state’s most recent pharmaceutical class action decision, Jensen v. Bayer AG, ___ N.E.2d ___, 2007 WL 313320 (Ill. App. Feb. 2, 2007), continues the trend. We can’t talk too much about the Baycol specific aspects because we (one of us, anyway) are involved in this mass tort. Jensen, however, contains lots of nuggets to mine without mentioning any particular drug’s name.
Jensen was a opportunistic class action filed under the legal theory that any time a manufacturer withdraws a drug, there must be a tort somewhere. The plaintiff looked high and low and came up with three of them that he thought would tempt a court into certifying a class action and thus putting him (or his counsel) on the fast track to a fat settlement – consumer fraud (which seems to be becoming the cause of action of choice of the 21st century), implied warranty, and of course, the tort that doesn’t exist without a class action, medical monitoring.
It didn’t turn out that way. A funny thing happened on the way to the bank.
Class certification was denied. What happened after that is a cautionary tale
Dismissal of the consumer fraud claim is probably the most important nugget. Plaintiff didn’t bother with evidence (this was supposed to be a class action after all), rather his position was essentially “because you withdrew the drug, you must have misled people before when you were marketing it.” Thankfully, the court had none of it. There is at least some proof of bad conduct, even in consumer fraud:
Plaintiff’s sole piece of evidence, defendant’s announcement that it intended to remove Baycol from the market, does not indicate an intent to conceal. The most natural and unstrained interpretation of defendant’s statement, in our view, indicates that defendant’s ongoing monitoring of Baycol revealed that Baycol may no longer be safe to the public. This is not an admission, either implicitly or explicitly, that defendant concealed the safety of its product from the public.
Jensen, 2007 WL 313320, at *5 (emphasis original). The court then kicked the theory while it was down. “Under plaintiff’s interpretation of the [consumer protection] Act, any recall announcement. . . would provide a prima facie case for concealment. This result, in our view, constitutes an unsupportable and unreasonable extension of the Act.” Id.
“Evidence? – I don’t need no stinkin’ evidence!” Well for once, the plaintiff was wrong in that assertion. I suppose it’s a measure of the state to which pharmaceutical product liability law has fallen that we think it’s worth trumpeting to the world a court’s rejection of an argument that, before consumer fraud became the product liability theory du jour, would have been laughed out of any fair-minded court in the country.
The dismissal of the breach of warranty claim in Jensen is a fine example of a class action plaintiff being hoist by his own petard (a phrase that originally meant having something blow up in one’s face). The basis of the dismissal was rather anachronistic – privity – but entirely avoidable had the plaintiff been willing to plead a personal injury claim.
This being the class action world, however, personal injury is almost anathema, since few, if any personal injury class actions are likely to be certified any longer. In warranty cases, Illinois has dispensed with so-called “vertical privity” in personal injury litigation. Since plaintiff shied away from any class-busting personal injury allegations, he pleaded himself right back into the old privity rule – and his claim was dismissed as a result. Id. at *6. As a public service, we also note that many states have also done away with the UCC’s notice requirement in personal injury warranty actions, while retaining notice in other types of cases, thus presenting another opportunity for eliminating personal injury-averse class actions.
The medical monitoring claim failed because of another all-too-common characteristic of class actions – if the class is not certified, then all interest in proving the plaintiff’s original claims vanishes. The court was able to take a pass at the novel question of whether Illinois would permit a medical monitoring claim brought by an uninjured plaintiff, because the plaintiff was left high and dry. He had no expert opinions, in fact nothing but his own say-so as a layperson, to support the medical monitoring allegations. In particular, he had no medical proof of the likelihood of future harm. Id. at *8. Hasta la vista.
As for the class action itself, the court said, in effect, “why bother?” The plaintiff, after getting a conditional right to file an amended class action complaint, couldn’t be troubled with meeting those conditions. The only pleading changes were “conclusory and by no means illuminative,” and the bushes were not even beaten to drum up a new class representative, as ordered. Id. at *9.
If we thought this plaintiff had any plausible claim to start with, we might even feel sorry for him. But he didn’t, so we don’t.
We feel sorry for the defendant, though. It undoubtedly spent hundreds of thousands of dollars (at least) to defend what the opinion makes clear was a suit based upon a wing and a prayer (we’re being charitable here). At least in this instance there was not one cent spent on tribute.