It’s called “class action” litigation, but there’s no class. Why? Because of the individual issue of reliance/causation. While the court hasn’t ruled on class certification, the court just dismissed the claims of all but two of the supposed “class” plaintiffs for failure to prove causation as a matter of law. Seems that – surprise of surprises – the prescribing physicians relied on other stuff and didn’t abdicate their professional responsibility to what some sales rep might have told them. Here’s the opinion: In re Neurontin Marketing & Sales Practices Litigation, MDL No. 1629, slip op. (D. Mass. Dec. 10, 2010).
The court rejects inferences from aggregated “proof” – quotation marks deliberately added. Slip op. at 25-27.
If there’s a way to certify a class after already having throwing out most of the putative class reps on an inherently individualized issue, we don’t see it.
We’re pleased, but not surprised. We did essentially the same thing to a similar suit in Pennsylvania not very long ago. See Clark v. Pfizer, Inc., 990 A.2d 17 (Pa. Super. 2010).
One last thing – the individual suit that this decision was in has a 2004 docket number. That means this action has been pending for six years without a formal rejection of its purported class action status. This is exhibit A why there should never be class action tolling of the statute of limitations – for anything, anywhere, and certainly not in litigation such as this where the chances for class certification are slim and none, and Slim just walked out the door.