To the surprise of precisely nobody, including – according to 360 (subscription required), the plaintiffs’ lawyers themselves – certification of a class action in the Yazmin/Yaz MDL has been denied. See In Re Yasmin & Yaz (Drospirenone) Marketing, Sales Practices & Relevant Products Liability Litigation,
MDL No. 2100, slip op. (S.D. Ill. May 4, 2011). “Relevant” product liability litigation? There must be a story behind use of that word in the caption of an MDL, but we don’t know what it is.
Anyway, it’s not strictly accurate to say that “certification” of a class has been denied. Things never got that far. Instead, the defendants moved to strike the class action allegations from the complaint before the plaintiffs ever got around to seeking certification. That the court chose to grant the motion to strike, rather than defer until the plaintiffs developed a full record, indicates just how much of a long shot class actions in personal injury actions are these days. Slip op. at 7-8.
As we’ve said before, since the AmChem and Ortiz class action opinions from the Supreme Court in the mid-1990s, there have been precisely zero personal injury class actions that have survived a contested appeal in the entire federal court system.
Yaz isn’t changing that tally one bit.
The plaintiffs didn’t even try all that hard, as there was no serious attempt to assert either a 23(b)(2) class or issue certification under Rule 34(c)(4). Slip op. at 9 n.8. To take one huge issue – all of the claims in the complaint were pleaded under the common law. The only purported class representative was from Louisiana.
Louisiana, doesn’t follow the common law, rather its product liability law is now entirely statutory. That alone makes the plaintiff an outlier. Slip. op. at 5.
All the other usual rationales that defeat class actions in personal injury actions were also invoked.
Individual issues predominate. Slip. op. at 10, 15.
Applicability of multiple states’ laws precludes certification. Slip. op. at 10-11.
Louisiana law can’t be applied to all the other plaintiff’s claims. Slip. op. at 11-13.
Factually, almost every element of a personal injury claim involves predominating individual issues. Slip. op. at 14.
Fraud involves predominating individual issues of materiality and reliance. Slip. op. at 14-15.
The Seventh Amendment precludes certification. Slip. op. at 19.
At some point, it’s going to become a Rule 11 violation to include class action allegations in a personal injury case – particularly national class action allegations. That time can’t come too soon.