In stark contrast to the “MDL treatment” that the Valsartan plaintiffs received earlier this year, the decision in Post v. Amerisourcebergen Corp., 2023 WL 5602084 (N.D.W. Va. Aug. 29, 2023), was more mainstream. Class certification was denied for a variety of good reasons.
Unlike the result, the Post class action allegations, were relatively unusual. The members of the class were all patients of the same physician. Plaintiffs alleged that “defendants” “unlawfully made payments to [the physician] to induce him to misdiagnose” them so that they were eligible for the product at issue. Id. at *1 We’re not 100% sure, but only one of these “defendants” apparently was the product’s manufacturer. Plaintiffs sought “the return of every payment made from every source” for this treatment – essentially, they wanted after-the-fact (Post-hoc?) free medical care. Id. In addition, they demanded various damages for “invasion of privacy” and “negligence,” as well as punitive damages. Id.
And they wanted this all as a class action.
The Post reaction? No way.
Plaintiffs lost before even getting to predominance, ordinarily the most imposing hurdle for class actions in our drug/device sandbox. The class representative was neither typical nor adequate. Id. at *2. Her privacy related claims were all barred by the statute of limitations. Id. at *3. The privacy claims sound ridiculous, but they were brought on behalf of the entire class. When plaintiff lost on untimeliness, “[c]lass members are bound by this result” and that count of the complaint “is now extinguished for them.” Id. (citations omitted).
But that wasn’t the would-be class representative’s only problem. As our class action cheat sheets lay out in considerable detail, personal injury class actions are rarely, if ever, certified. The plaintiff in Post was well aware of that – she didn’t bring any personal injury claims in the class action complaint. Instead, she filed (and then settled) a separate complaint against the physician and non-diverse defendants, to make sure that it stayed separate in state court. That maneuver also made her atypical and inadequately representative of the purported class:
Plaintiff is atypical and inadequate because she has abandoned any claims and/or relief related to personal injury and related damages. The Second Amended Complaint alleges that she and putative class members suffered “physical and financial harm, injuries and damages”. . . . Despite these allegations, Plaintiff’s motion for class certification does not seek certification [of these claims]. Plaintiff’s decision to abandon these grounds for relief presents a conflict of interest and renders her an inadequate class representative.
2023 WL 5602084, at *3. These deficiencies were “even more apparent given that Plaintiff filed an individual lawsuit against [the physician] in state court, alleging in that case that she suffered physical and financial harm.” Id.
A third source of atypicality and inadequacy arose from the would-be class representative’s being a Medicare beneficiary. Her purported unjust enrichment claim was based on Medicare-specific grounds. Id. Since “a significant number of putative class members were not” Medicare recipients, again “typicality and adequacy are not satisfied.” Id.
Not surprisingly, this putative class action also flunked the predominance requirement of Fed. R. Civ. P. 23(b)(3). Indeed, plaintiff’s certification motion did “not address the elements of each cause of action or whether those elements are capable of being established through common, class-wide proof.” Id. at *4
Starting with negligence, Post pointed out the obvious, “[n]egligence claims generally require damages from property loss or personal injury.” Id. Whether “alleged negligence caused class members to suffer bodily injury due to unnecessary medical treatment requires proof through individualized medical evidence.” Id.
Plaintiff’s personal medical experience is specific to her. It is not common, class-wide proof to establish whether other individuals had [the condition being treated] or benefitted from [the product]. For the same reason, courts have previously rejected class certification in cases involving the appropriateness of medical treatment.
2023 WL 5602084, at *4 (citations omitted).
Individual issues also predominated as to plaintiff’s fraudulent concealment claim. Since “fraudulent concealment is a form of fraud,” it has “a reliance element” that “requires a plaintiff to prove that he actually, subjectively relied upon the fraudulent act and then that such reliance was justified and reasonable.” Id. at *5 (citations omitted). Reliance thus defeated class certification:
Because reliance is an individualized determination, it is well recognized that claims for common law fraud are not amenable to class certification. . . . [I]ndividual inquiries into reliance typically preclude a finding that common issues of fact predominate.
Id. (citations and quotation marks omitted).
Unjust enrichment also failed. Whether a defendant “was unjustly enriched by retaining the payment for the medical treatment is dependent upon whether each individual received a benefit from the treatment.” Id. at *6 (citations omitted). Therefore, like all of plaintiff’s other claims, unjust enrichment was “highly individualized and class treatment is not appropriate.” Id.
Finally, even as to Medicare recipients, plaintiff’s purported Medicare-specific unjust enrichment claim also failed – only in this instance on the merits. Plaintiff has no standing to assert such a claim “when there is clearly no private cause of action under that statute.” Id. at *7
Because the purpose of the [Medicare statute] is to protect the government, there is no private cause of action for violations of it, and private parties may only enforce it on behalf of the United States through the qui tam provisions of the False Claims Act (“FCA”). . . . An FCA action can only be brought in the name of the United States.
Id. at *6 (citations omitted). This statute simply did not support class action allegations – period. Plaintiff got too greedy. She sought to rely upon the statute to argue that “even if the . . . treatment was medically necessary and appropriate, Defendants must refund money collected because the referrals from [the physician] were ‘prohibited.’” Id. Her attempt to avoid individualized medical facts ended up with her outside the scope of any permissible cause of action.
Thus, in real-world – i.e., non-MDL – litigation, Post only underscores how out in left field (heck, out in the parking lot beyond the left-field fence) the Valsartan decision was, and is. Class actions still properly have no place in prescription medical product liability litigation.