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January 26, 2016 Practice Points

Class Certification for Medical Personal Injury Cases Still Proves Difficult

By Laura Pizzitola

On November 4, 2015, the Northern District of Georgia continued the trend of denying class-action certifications for medical-related personal-injury cases under FRCP Rule 23. See Shepherd v. Vintage Pharm., LLC, ___ F. Supp. 3d ___, 2015 U.S. Dist. LEXIS 153115 (N.D. Ga. Nov. 4, 2015). The court in Shepherd unsurprisingly held that the class, and its four subclasses, failed because the members were unascertainable, they lacked commonality and typicality, and the questions common to the class were not predominant over questions affecting individual members. This decision falls in line with over 80 similar prescription-drug and medical-device cases that have also denied class certification for personal-injury cases for similar reasons. Shepherd once again confirms that it is difficult to achieve class certification for these cases because of the individualized nature of the injuries.

First, the court found that the members of the class were not ascertainable because it would not have been administratively feasible (a fair and easy process not requiring much individual inquiry) to determine who qualified for the class. Shepherd, 2015 U.S. Dist. LEXIS 153115 (citing Bussey v. Macon Cnty. Greyhound Park, Inc., 562 F. App’x 782 (11th Cir. 2014)). The court agreed with the defendants’ argument that because the defective products were sold to retailers and distributors and not to the individuals, the only way to identify the members of the class was through self-identification affidavits, which many courts have found unreliable. See Marcus v. BMW of N. Am., LLC, 687 F.3d 583 (3d Cir. 2012). The plaintiffs could have satisfied this factor if they had provided the court with a more reliable way to identify members. It might have been sufficient if the plaintiffs could have proved that class members purchased the defectively packaged drugs by showing that they had retained the packaging and their pharmacy receipts as proof. However, if the ascertainability of a class relies on physical symptoms alone, it is likely that a court will always find that the case is better suited for individualized scrutiny.

Second, the court found that this case also failed both the commonality and typicality factors. The plaintiffs claimed there was commonality because the conduct in question for all of the potential class members related to the recalled pills; however, the plaintiffs failed to answer the true question of commonality: how the claims of potential members coming from different states could generate common answers. The plaintiffs needed to show that regardless of the members being from multiple states, the court could produce an answer that would apply uniformly in all states and under all state laws. Additionally, the two class representatives failed to prove typicality. Because one plaintiff alleged that she became pregnant and delivered a baby and the other plaintiff allegedly got pregnant but failed to carry the baby to term, their claims are dissimilar to three out of the four subclasses. With typicality, it is crucial that a sufficient nexus exist between the claims of the named representatives and those of the potential class (or subclasses).

Even if ascertainability, commonality, and typicality were not issues, the plaintiffs still fell short of their burden because the plaintiffs failed to prove the legitimacy of their class under Rule 23(b)(3) as they could not show that the questions common to the class were “predomina[nt] over” the individualized questions. See Amchem Prods., Inc. v. Windsor, 521 U.S.591, 609 (1997). The potential plaintiffs would have had to show their individual physical symptoms and their medical history. Even the potential plaintiffs who were only claiming economic harm still would have had to show that they participated in the recall and how their pharmacist reimbursed them. Based on the foregoing issues, the Northern District of Georgia was once again able to strike down an attempt at attaining class certification for a prescription-drug personal-injury case.

Although it did not create new law in this area, the Shepherd case emphasizes the difficulty of establishing a legitimate class in medical-device and -products cases like this. It further illustrates the unwillingness of judges to create such a class when the claims are too individualized. As one of the latest in a string of similar cases, the Shepherd decision shows that although the burden in these types of cases has been insurmountable thus far, the key is having a clear plan for identifying class members, a narrow enough class that the named representatives are “typical” of the potential members, and claims that focuses more on the class than the individual.

Laura Pizzitola, Bressler, Amery & Ross P.C., Birmingham, AL

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