Today’s post is of the “this and that” variety − dealing with things we’ve come across that we haven’t yet blogged about this week.
As defense counsel appreciate, PMA preemption post-Riegel floats like a butterfly and stings like a bee. Anybody representing PMA medical device clients will
This month, we’ve seen a couple of cases dealing with class action settlements and neither of them, frankly, leaves us with much confidence in the process. We’re referring to Dennis v. Kellogg Co., ___ F.3d ___, 2012 WL 2870128 (9th Cir. July 13, 2012), and In re Budeprion XL Marketing & Sales Litigation, 2012 WL 2527021 (E.D. Pa. July 2, 2012).
The Ninth Circuit Dennis (we’d add “the Menace” to the name) case involved food, not drugs. It is a poster child for the abuse of “cy pres” distribution in a class action settlement − so much so that even the Ninth Circuit, notoriously liberal on such things, couldn’t stomach it. California has become a center of food class action litigation, and in this particular instance the charge was that the defendant advertised certain cereals as “scientifically proven to improve children’s cognitive functions for several hours after breakfast.” 2012 WL 2870128, at *1. For present purposes it doesn’t matter whether the allegation has any merit or not, since the action was settled.
But what a settlement:
According to class counsel, the total amount of refunds paid from the claims-made fund was $800,000. Id. at *2 n.1. Even though this figure was unverified and counsel had every incentive to overstate the payout, we’ll take it as face value.
Thus, of the nominal $9.75 million in value that purportedly changed hands (we’ll pass over the interesting discussion of the “value” of $5 million in-kind contribution, its tax deductibility, and whether the donation would have been made in any event, see id. at *7), all of $800,000 went to the supposed class. That’s a little more than 8%.
The attorneys for the class took home two and a half times more dollars than did the entire class. Divided by the hours the class attorneys spent, they received an hourly rate of $2100 − that’s right, over two-thousand dollars an hour. 2012 WL 2870128, at *1.Continue Reading Notes on Settlement Classes
About a year ago we reported on the dismissal of what we characterized as a “really bogus” attempted class action in In re McNeil Consumer Healthcare Marketing & Sales Practices Litigation, 2011 WL 2802854 (E.D. Pa. July 15, 2011) (“MCH”). We distilled the 2011 MCH opinion down into four “simple rules” for pleading:
Simple rule #1: If you didn’t buy the product, you can’t claim economic loss from purchasing it.
Simple rule #2: There has to be something wrong with the product before you can sue over it.
Simple rule #3: What you didn’t buy can’t cause you any injury from its mere purchase. See simple rule #1.
Simple rule #4: Don’t allege physical impossibilities.
We noted at the end of that post that the court in MCH had granted leave to amend, but speculated that the plaintiffs − even though enjoying the excellent representation characteristic of multidistrict proceedings − might well flunk TwIqbal again because they were more interested in alleging something that had a prayer of being certified as a class than they were in stating a claim in the first place.
It turns out we were right.Continue Reading Still Standing
The thing about personal injury claims is that they’re personal. Each case has distinctive details, such as why the plaintiff used the product, what she relied on, what harm resulted, and what caused the harm. That’s why personal injury claims are not fit for class treatment. They are almost never certified.
In fact, nowadays, they are not only rejected; they are rejected hard. That’s what happened in Haggard v. Endogastric Solutions, Inc., 2012 U.S. Dist. LEXIS 89767 (W.D. Pa. June 28, 2012). The defendant manufactures a device (EsophyX) that is inserted without an incision to treat GERD. The plaintiff had it inserted, choosing it over a competitor’s surgically implanted device (Nissen). When the device didn’t work, his doctor couldn’t completely remove it, and the plaintiff claimed that this eliminated certain other treatment options that had been available to him. He reluctantly tried the competitor’s Nissen device, but his symptoms got worse. Plaintiff then filed his class action, claiming that the defendant had misrepresented that the insertion procedure was reversible, when in fact it was only “revisable” (apparently something less than reversible). Id. at *1-3.
If this sounds like a situation rife with unique personal facts, that’s because it is. And so plaintiff’s attempt to put a class together failed miserably.
Plaintiff first tried to certify a class that consisted of everyone who had used the defendant’s device. The court rejected this class for a bunch of reasons, many of which are obvious. It failed the “typicality” requirement. The class rep had “marked” differences with the other putative class members as to the information received and relied upon, as well as the harm suffered, particularly given that plaintiff admitted that, unlike with him, the device worked for most of the class members:
Evidence of record indicates there would be numerous, inevitable questions regarding the information received by individual patients – from their physicians or other sources – and their reliance on particular representations. . . . More importantly for purposes of a typicality analysis, Plaintiff’s theory of harm because he was informed as to and relied on representations of its “reversibility” in electing a surgical procedure is harm of a fundamentally different nature – i.e., it is different in kind – from the inchoate harm, if any, of being subject to misrepresentations in the abstract.
Id. at *14, *17.Continue Reading Another Personal Injury Class Action Goes Down in Flames
Since we follow developments in Canada, and in particular Canadian class action litigation, we thought our readers would like to know about the significant defense win in Andersen v. St. Jude Medical, Inc., 2012 ONSC 3660, slip op. (Ont. Super. June 26, 2012).
However, because of ReedSmith’s involvement in the litigation, we’re
We’ve blogged before, occasionally, about drug/device developments north of the border. Most of these developments have involved class action practice, where Canadian law is considerably more liberal than the corresponding rules here in the USA.
But there’s a point at which class actions fail even under Canadian law. That point was recently reached in the parallel Seroquel litigation pending in Ontario. We’re pleased to report that, in Martin v. AstraZeneca Pharmaceuticals PLC, No. 06-CV-314632CP, slip op. (Ont. Super. May 7, 2012), the court flatly rejected class certification.
Unlike the Canadian judiciary (the opinion is 78 pages long, single spaced), we’ll try to keep this report brief.
The class was huge and undifferentiated – “all persons” in Canada who “ever used Seroquel.” Slip op. at ¶5. Likewise, the alleged injuries were everything under the sun. Id. ¶¶7-9. The claims are the same that we typically see in the USA, a hodgepodge of inadequate warning, off-label promotion, and fraud on regulatory agency allegations. Id. ¶¶11-13. Their experts were also eye-rollingly familiar to US litigators, Laura Plunkett and William Wirsching. Id. ¶¶26-28. As often happens in the US, Plunkett was ruled incompetent to offer any medical opinions. Id. ¶¶50. More interestingly, since it’s part of her schtick, Plunket was also held incompetent to testify about Canadian regulations, since her only background involved the American FDA. Id. ¶¶65-66. Contrary to the plaintiffs’ apparent position, Canada is not simply an appendage of the US.
Despite having sophisticated class action counsel, plaintiffs were really lousy pleaders. “It is plain and obvious that the causes of action as pleaded will fail.” Id. ¶108. Among other things, they “lump” differently situated defendants “together as a group” and allege that everybody’s liable for everything. Id. ¶109. Maybe we should call these pleading rulings “Canadian TwIqbal” or “CwIqbal” for short. Whatever it’s called, the plaintiffs couldn’t meet the standard and the entire complaint was pitched.
How can counsel who can’t or won’t satisfy the most basic pleading requirements possibly be considered “adequate” for class action purposes?
Just a thought.
Another interesting holding in Martin – at least to us, since we don’t know much Canadian substantive law – is that it’s essential in design defect cases to plead “a safer and economical alternative design.” Id. ¶¶136-37. That’s also the law in many US jurisdictions. Of course plaintiffs can’t plead an actual alternative design in most drug cases, so they just plead that somehow some other drug is safer. That didn’t cut it in Martin. Id. ¶136.Continue Reading Oh, Canada!
Over a decade ago, Bexis convinced the Fourth Circuit to predict that Virginia would reject cross-jurisdictional class action tolling – the notion that a meritless class action filed in one jurisdiction could suspend the running of the statute of limitations in another jurisdiction. See Wade v. Danek Medical, Inc., 182 F.3d 281 (4th Cir.1999). But what was won in Wade had a hard time staying won. Some federal courts, deviating from their federalist duty to construe state law conservatively, nonetheless made conflicting predictions that, maybe Virginia law (despite not recognizing class actions at all) would allow cross-jurisdictional tolling. See Torkie-Tork v. Wyeth, 739 F. Supp.2d 887 (E.D. Va. 2010); Shimari v. CACI International, Inc., 2008 WL 7348184 (E.D. Va. Nov. 25, 2008).
But not all courts. In In re Fosamax Products Liability Litigation, 694 F. Supp.2d 253 (S.D.N.Y. 2010), the court followed Wade in another multidistrict litigation (Wade had followed an MDL remand). The plaintiffs appealed, and the Second Circuit certified the question to the Virginia Supreme Court, which accepted the appeal.
Virginia’s highest court has now killed cross-jurisdictional class action tolling dead in that jurisdiction. Casey v. Merck & Co., No. 111438, slip op. (Va. Mar. 2, 2012). Good riddance, we say. It was a long enough time coming – as was the underlying Fosamax class action decision. The plaintiffs wanted over two years of tolling – just for filing a meritless complaint – because it took various courts (it was an MDL, after all) from September 15, 2005 until January 28, 2008 to dismiss the patently bogus personal injury class action.Continue Reading At Long Last – Virginia Definitively Rejects Class Action Tolling
We can’t say all that much about Merck & Co. v. Ratliff, ___ S.W.3d ___, 2012 WL 413522 (Ky. App. Feb. 10, 2012), because of our involvement in the Vioxx litigation, but we’d be remiss not to point out that the Kentucky appellate court joined the vast majority of other jurisdictions in rejecting “fraud