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At this blog, we root for the drug industry.

Film at 11.

So the California Court of Appeal’s recent decision in Johnson v. GlaxoSmithKline, No. B199453, slip op. (Cal. Ct. App. Sept. 19, 2008) (link here), left us a little depressed.

Several different groups of plaintiffs have sued GlaxoSmithKline pleading that GSK deceptively advertised Paxil as nonhabit-forming.

In 2002, plaintiffs filed a motion in federal court to certify a subclass of “[a]ll persons who have used Paxil and who reside in 3 states, including California, [with laws] identical to California’s [unfair competition law] where plaintiff need not show reliance, causation or damage.” Slip op. at 5. The federal judge held that individual issues in that case, such as whether the putative class members “had seen the advertisements,” barred class certification. Id.

In 2003, the federal plaintiffs filed a second motion seeking, among other things, to certify a class of California residents prescribed Paxil after 1992 who sought an injunction prohibiting certain GSK advertising statements and to recover restitution. The federal judge again denied certification because, among other things, “some plaintiffs may never have seen or heard the statements sought to be enjoined.” Id. at 6.

So Kevin Johnson filed a new class action — this time in state court — on behalf of “all California residents, who are not deceased, who have been prescribed, and have taken Paxil at any time after 1992 until the present.” Id. at 3.

Under a recent California appellate decision, “the doctrine of collateral estoppel permits a prevailing party to enforce a ruling denying class certification, made in a prior action, against an absent putative class member seeking to pursue a class action.” Id. at 7 (citing Alvarez v. May Dept. Stores Co., 143 Cal. App. 4th 1223 (2006)). GSK thus moved for summary adjudication to preclude Johnson’s lawsuit from proceeding as a class action.

The trial court granted that motion, but the Second District Court of Appeal reversed. The appellate court held that the previous federal class certification decisions “were litigated before the voters approved Proposition 64 . . . which significantly restricted the previously broad standing requirements for pursuing a private cause of action” under the California unfair competition laws. Id. at 16. The state court class action, in contrast, relied on the narrower concept of standing recognized after Proposition 64 passed. Because the earlier decisions denying class certification did not resolve the identical issue that Johnson raised in his later case, the appellate court reversed the grant of summary adjudication.

But don’t be too depressed. Although Johnson’s motion for class certification is not barred by collateral estoppel, it may yet be denied on other grounds. The appellate court was “not deciding Johnson has established the existence of both an ascertainable class and a well-defined community of interest among class members.” Id. at 22. Nor did it “hold that Johnson’s claims . . . are typical of the class or that Johnson has proved he can adequately represent the class.” Id.

Those arguments will be available to GSK on remand.

And, naturally enough from our vantage point, we think they ought to be plenty to defeat class certification.

Oh, happy day!