We can’t say much, because Herrmann’s on the road and Bexis is involved in the litigation, but a trial court in New Jersey just denied certification of an individual consumer economic loss class action, both nationwide and limited to New Jersey. The bases of the decision:
There is no predominance. “The causal nexus between the loss sustained by each member of the class and the consumer fraud. . .creates an insurmountable barrier to a class action.” Slip op. at 12. Consumers made “individualized decisions” to use the drug. Id. at 13.
Unjust enrichment is not a valid theory of liability in a case involving allegations of improper warnings/marketing of a product. Id. at 15.
There is no typicality because each class member “received a different benefit from the drug.” Id. at 16.
There is no superiority because “it would be unfair to [defendant] to certify a class and allow a jury to reach one uniform determination of liability where results [as shown by past outcomes] could vary from plaintiff to plaintiff.” Id. at 17.
The court did not reach choice of law. Id. at 18