Although past history demonstrates the increasing futility of class action certification in pharmaceutical/medical device product liability litigation, the other side still plugs away, most likely for reasons we’ve discussed here.

The latest denial of class certification came in Solo v. Bausch & Lomb, Inc., slip op., where the plaintiffs sought recovery of purported economic losses from having to throw away allegedly defective product (contact lens solution). Along with the usual litany of reasons for denying class certification, though the court commented upon the testimony of the two class representatives, which it characterized as “muddled.” Id. at 12.

How muddled? Let’s see. On the critical question of whether the product was thrown away, the first representative changed her story about when she supposedly threw the product away “after returning from a break” in her deposition. Id. at 11. She also changed her story about how much she threw away (and contradicted what the complaint pleaded) “after a bathroom break.” Id. at 12. The other class representative was even worse, having “three inconsistent versions of when she purchased [the product] and when she discarded it.” Id. Ouch.

The court therefore reasoned that if the class representatives’ memories were so bad, the recall of the absent class members would be even worse:

With the named plaintiffs’ documented memory difficulties in mind, the court finds that determining the membership of plaintiffs’ proposed class would require countless factual inquiries into the individual circumstances of potential class members, most of whom will have long ago forgotten the details relevant to plaintiffs’ allegations. Moreover, it is hard to fathom how thousands of unnamed putative class members could possibly provide credible testimony about their class membership more than three years after the fact when the proposed class representatives themselves have presented conflicting testimony that changed over time. It is abundantly clear that the administrative burdens of certification greatly outweigh any
efficiencies to be gained by treating these claims as a class action.

Slip op. at 13-14 (footnote omitted). Certification denied.

There are a lot of reasons for vigorous cross-examination of class representatives, but sometimes the most basic reason is the best.