We’ve been noting the impending death of class actions in personal injury cases for some time. But apparently the death will be agonizing. One example of that is Brandner v. Abbott Laboratories, Inc., 2012 U.S. Dist. LEXIS 7017 (E.D. La. Jan. 23, 2012), a proposed personal injury class action involving a recall of the baby formula Similac. Abbot had instituted a nationwide recall of all Similac lots that it believed could have been contaminated after it found contamination in a finished batch of Similac at one of its plants. Id. at *3.
The plaintiff faced significant (we say insurmountable) hurdles, including FRCP 23(b)(3)’s requirements of predominance and superiority, to certifying a class of Similac purchasers with product liability claims. But rather than amaze us with inventive or even outrageous arguments, plaintiff’s counsel didn’t even seem to try. Their motion to certify a class offered no particulars to show how common issues could actually predominate over individual ones. They instead made a conclusory and simple argument that Abbot’s supposed bad conduct was “without a doubt the predominate issue.” Id. at *11. They had little more to say. But the court did.
It would have made a whole lot of sense for plaintiff’s counsel to have taken this into account before filing the case. A frank discussion between the expert and counsel could have saved the parties, lawyers and courts time and money.