We are writing about another tenofovir case.  But this is not a product liability case or a foray into how far California law can be expanded to discourage innovation.  See here, here, and here for some of the bad ones.  Instead, this is a class certification ruling on a proposed class of purchaser suing for alleged violations of the Missouri Merchandising Practices Act and common law unjust enrichment.

Two things we have pointed out that seem to recur in decisions where courts favor drug and device plaintiffs are that they omit meaningful discussion of the benefit of product and/or the burdens on the plaintiffs.  The decision in Searcy v. Gilead Sciences, Inc., No. 4:20-cv-1523-MTS, 2026 U.S. Dist. LEXIS 11787 (E.D. Mo. Jan. 22, 2026), does not have these failings.  It starts with an affirmative statement of the important role that tenofovir has played in reducing the mortality of HIV in general and in treating the purported class representatives in particular.  It also makes clear that plaintiffs bore the burden to establish every requirement of Fed. R. Civ. P. 23.  It also displays the sort of common sense we sometimes find missing in decisions where complicated cognitive contortions are necessary to reach a pro-plaintiff result in a bogus case.  Plaintiffs’ basic contention was that each purchase of prescription drugs containing tenofovir disoproxil fumarate for twelve years before tenofovir alafenamide came to market was automatically an overpayment because an alternative world allegedly existed where drugs containing the later version of tenofovir were approved and came to market much sooner.  This being a proposed class, the plaintiffs defined the class to exclude anyone who claimed to have suffered a personal injury of any sort.  Instead, purchasing any of the tenofovir-containing drugs for any price during the twelve years was supposedly an economic injury for each class member.

Even before getting to the requirements of Rule 23, the Searcy court was wise to look at standing.  Perhaps because cases involving medical products are getting more tenuous, it seems that we have been seeing quite a few over the last two years dismissed for lack of standing, often because the plaintiffs cannot plausibly allege an injury in fact.  See, e.g., here and here.  In the class context, it is not enough for a proposed class rep to have standing, but the entire proposed class must have standing.  That makes sense, because “a named plaintiff cannot represent a class of persons who lack the ability to bring a suit themselves.”  2026 U.S. Dist. LEXIS 11787, *6-7 (quoting Avritt v. Reliastar Life Ins. Co., 615 F.3d 1023, 1034 (8th Cir. 2010)).  While one of the plaintiffs alleged an injury in fact by overpaying for his prescriptions of tenofovir-containing medications, the class included people—potentially a majority of the class—who paid nothing themselves for their prescriptions.  Id. at *9-10.  You cannot overpay when you do not pay.  This is particularly so when the medications were acknowledged to have value in treating HIV, even if they were allegedly suboptimal compared to drugs containing a later version of tenofovir.  Id. at *11.  The court also rejected the argument—applicable to the statutory claim not the common law claim—that people who “paid nothing or miniscule amounts still suffered an Article III injury because Missouri law entitles them to benefit of the bargain damages,” distinguishing between the required injury in fact and the legal fiction of an injury created by a legislative act.  Id. at *11-12.

That was enough to end the class—the real reason for bringing a case like this—but the Searcy court went ahead and made it clear that plaintiffs did not carry their burden as to multiple Rule 23 requirements.  On the big requirement, “individual issues predominate [over common issues] because prescribing decisions are patient-specific and give rise to individual issues that are central to questions of causation and loss.”  Id. at *14.  It could not be assumed that all class members had certain expectations about the risks and benefits of the medications they were prescribed to make a further assumption that they would not have purchased the medications if the defendant had behaved differently.  Similarly, individual proof would be required to address the knowledge and decision making of both prescribing physicians and purchasing patients.  Id. at *16.  Even the named plaintiff who the court said had alleged an injury in fact had a record of prescription, purchase, and use of medications containing both versions of tenofovir that emphasized the importance of individualized proof (and undercut his core contentions).  This discussion of the record on Rule 23, which we have presented briefly, makes it clear that plaintiffs cannot find another route to class certification by tweaking their proposed class definition or offering some other late amendment.

While refraining from ruling on the admissibility of plaintiffs’ economics expert at trial, the Searcy court took pains to call out his “damages model for calculating class-wide benefit of the bargain damages.”  We have long found the use of economics/pharmacoeconomics/econometrics to establish injury or causation under the guise of opinions on damages to be a stretch, albeit one that occasionally gets some traction when courts struggle with the class action requirements.  See, e.g., here, here, and here.  A calculation of “the difference between the ‘as represented’ value of the product and the ‘as is’ or ‘actual’ value of the product” will inevitably be used to prove that there was a misrepresentation of value and that it caused an overpayment, issues the court had already rightly determined to require consideration of individualized evidence for prescription medications used to treat a potentially fatal condition.  Only with very firm limiting instructions should such flimflam be presented to try to establish damages only.  But, even when offered solely on damages, this model was flawed.  For one thing, because the model failed to account for out-of-pocket payments by the patient-purchasers versus payments by third-party payors, calculated losses could greatly exceed what the plaintiff actually paid.  Id. at *23-24.  It also determined the value of branded medications by looking to the price of much cheaper generic medications.  In addition to looking like a shameless attempt to inflate damages, it is ironic because plaintiffs claimed the alleged delay in bringing the later version of tenofovir to market was because the manufacturer wanted to use its patent exclusivity to delay the entry of generics.  In terms of class damages, though, this model was not designed to “measure only damages attributable to [plaintiffs’] theory,” so it could not be used to support class certification.  Id. at *26 (internal citation omitted).

Another irony here is that these massive failings do not end the case.  They just end any chance at certification of the class as alleged.  Searcy has been pending since 2020.  Surely, the amount of time and effort spent on a fundamentally flawed case, simply because it includes a class allegation, is out of whack.  After all, as the court asked up front,

Plaintiffs, two HIV-positive men, were prescribed and took medications, as directed by their healthcare providers, that Gilead manufactured. The medications they took worked exactly as prescribed, effectively managing their HIV. What is more, the medications did so safely; neither Plaintiff alleges that he suffered any personal injury from taking them. So why have they sued Gilead after taking its lifesaving medications without adverse effect?

Id. at *3.  We have not seen an answer that would justify the longevity of this case.