67, 72.
FN37. Pls.’ Mem. at 22.
FN38. Id. at 23.
According to GSK, when Tonya was hospitalized for her suicide attempt, she
tested positive for PCP and amphetamines. She told her doctor that she did
not really intend to kill herself but had mistakenly taken too many pills.
[FN39] GSK suggests multiple other possible causes for Tonya’s behavior. It
points to Tonya’s “tumultuous childhood,” her extensive family history of
anxiety, depression and alcohol abuse, and her fear of crowds and panic
attacks. She also may have bipolar disorder, which, GSK asserts, could be the
cause of her behavioral changes that occurred after she started taking Paxil.
[FN40]
FN39. GSK’s Mem. at 14, 18.
FN40. Id. at 15, 16.
Tonya is the only pediatric patient for whom Dr. Lin, her family physician,
ever prescribed Paxil. Before prescribing Paxil for Tonya, Dr. Lin had
received two “Dear Healthcare Provider” letters from GSK about the FDA’s
ongoing analysis of pediatric suicidality data. Accordingly, she was aware
that Paxil was not approved for pediatric use. [FN41]
FN41. Id. at 15-17.
Just as there are between the two plaintiffs, there are numerous critical
factual and legal differences among the putative class members that preclude
typicality. Each class member took varying doses of Paxil, for varying
indications, at various times, at different developmental stages and for
different durations. Each has different medical, psychosocial, and
pharmaceutical histories. The prescribing physicians for each had different
specialities, varying levels of knowledge about Paxil and other SSRIs,
different clinical experience with Paxil and similar medications for pediatric
patients, and varying levels of contact with the patient. Based on these
differences, GSK can potentially raise unique defenses to each plaintiff’s
claim.
Any similarity in legal theories among the named plaintiffs and the proposed
class of plaintiffs is eclipsed by the individualistic defenses GSK can raise
to each plaintiff’s claim. “Where the defendant can raise unique defenses to
each plaintiff’s claim, typicality may not exist if the defenses could
threaten to become the focus of the litigation.” Jones, 234 F.R.D. at 98.
The danger is that the class representatives will be preoccupied with meeting
and defeating those defenses unique to them at the expense of those issues
that they share with the class members, a problem also implicating adequacy.
Therefore, because the individual circumstances of each of the named
plaintiffs are so markedly different from each other and those of the absent
class members, the plaintiffs have failed to meet the typicality requirement.
D. Adequacy of Representation
Rule 23(a)(4) aims to protect the interests of the class. There are two
parts to this test. The first goes to the competency of counsel, and the
second to the plaintiffs’ motivation and ability to protect the interests of
the other class members.
The first part of the adequacy requirement is not at issue. GSK does not
contest counsel’s competency to prosecute a class action. Class counsel have
litigated other class actions, have over a decade of experience with cases
involving SSRIs, and are presently counsel of record in other class actions
involving Paxil. [FN42]
FN42. Pls.’ Mem. at 32-33.
The second prong of the adequacy of representation requirement, which GSK
does challenge, tends to merge with the commonality and typicality
requirements of Rule 23(a). Jones, 234 F.R.D. at 98. As previously
determined, the plaintiffs have failed to meet the typicality requirement.
The same factual and legal differences among the named plaintiffs and the
unnamed class members that defeat typicality render plaintiffs inadequate
representatives of the putative class. The divergent interests and
circumstances will impair the plaintiffs’ ability to adequately protect the
interests of the class members. Therefore, the plaintiffs have failed to
satisfy the second part of the adequacy requirement.
VI. Rule 23(b)(3)–Predominance and Superiority
Meeting the four requirements of 23(a) satisfies only part of the
certification test. The action must also qualify as one of the types of class
actions described in Rule 23(b). In this case, plaintiffs have moved for
certification under subsection (b)(3), which requires that common questions of
law or fact predominate over questions affecting only individual class
members, and that a “class action is superior to other available methods for
the fair and efficient adjudication of the controversy.” Fed.R.Civ.P.
23(b)(3). Thus, the plaintiffs must satisfy both the predominance and the
superiority aspects of Rule 23(b)(3).
In determining whether the action fits within Rule 23(b)(3), the Rule
specifically directs the court to consider the interest of class members in
individually controlling the litigation, the status of ongoing litigation
brought by members of the class, the desirability of concentrating the
litigation in the particular forum, and likely management difficulties.
Fed.R.Civ.P. 23(b)(3)(A)-(D). In the end, it is the interests of the
individual members in controlling their own litigation that drives the
certification decision on predominance. The superiority analysis focuses on
the advantages and disadvantages of using the class-action device in relation
to other litigation methods.
A. Predominance and Rule 23(c)(4)(A)
There are two views of the interplay between the predominance requirement and
subsection 23(c)(4), which provides that: “[w]hen appropriate, an action may
be brought or maintained as a class action with respect to particular issues.”
One is that Rule 23(c)(4)(A) may be used to certify a class regardless of
whether the claim as a whole satisfies Rule 23(b)(3)’s predominance
requirement. See Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th
Cir.1996). The other view is that only after the predominance requirement of
23(b)(3) is satisfied may common issues be certified pursuant to 23(c)(4).
The latter approach considers Rule 23(c)(4) as a procedural tool to sever
common issues for trial and not as a vehicle to reach certification. Arch v.
Am. Tobacco Co., 175 F.R.D. 469, 496 (E.D.Pa.1997) (quoting Castano v. Am.
Tobacco Co., 84 F.3d 734, 745 n.21 (5th Cir.1996)).
The plaintiffs urge adoption of the former position. They contend that even
if common questions do not predominate over individual questions, the court
may isolate the common issues and perform the predominance evaluation solely
with respect to their proposed common issues. [FN43] I disagree.
FN43. Pls.’ Mem. at 35-36.
The better view is that issue certification under 23(c)(4)(A) does not
obviate the need to evaluate predominance. In other words, a predominance
determination is a prerequisite to certification under Rule 23(b)(3). Indeed,
the 1966 Advisory Committee Notes so instruct, stating that only where
predominance exists can the class action device be used. Fed.R.Civ.P.
23(b)(3) Advisory Committee’s Note. Using subsection 23(c)(4) to certify a
putative class that is otherwise improper for certification would bypass the
23(b)(3) predominance requirement. Castano, 84 F.3d at 745 n.21; Arch, 175
F.R.D. at 496. While some courts have noted that the purpose of Rule 23(c)(4)
is to provide “some flexibility in separating the distinct issues and classes
within the case in order to fashion a case suitable for class action treatment
.. and give courts the discretion necessary to advance judicial economy,”
those concerns have always been trumped when “the common issues are
inextricably tied to the individual issues.” In re Paxil, 212 F.R.D. at 543.
Therefore, only after the court has found that the cause of action satisfies
the predominance requirements of Rule 23(b)(3) may it certify common issues
pursuant to Rule 23(c)(4)(A). See Arch, 175 F.R.D. at 496.
B. Predominance and Rule 23(b)(3)
In a class action brought under Rule 23(b)(3), common questions of law or
fact must predominate over questions affecting only individual members and
must be a significant part of the individual cases. The predominance inquiry
is “far more demanding” than the commonality requirement of Rule 23(a). Amchem
Prods., Inc. v. Windsor, 521 U.S. 591, 623-24 (1997).
Subdivision [23](b)(3) encompasses those cases in which a class action would
achieve economies of time, effort, and expense, and promote uniformity of
decision as to persons similarly situated, without sacrificing procedural
fairness or bringing about other undesirable results….
It is only wh[en] predominance exists that economies can be achieved by means
of the class-action device.
Fed.R.Civ.P. 23(b)(3) Advisory Committee’s Note.
Predominance poses a problem for certification in drug product liability
cases. See, e.g., In re Prempro Prods. Liab. Litig., 230 F.R.D. 555, 567
(E.D.Ark.2005); Zehel-Miller v. AstraZenaca Pharm., L.P., 223 F.R.D. 659, 663
(M.D.Fla.2004); In re Baycol Prods. Litig., 218 F.R.D. 197, 204
(D.Minn.2003); In re Paxil Litig., 212 F.R.D. 539, 551 (C.D.Cal.2003); In re
Rezulin Prods. Liab. Litig., 210 F.R.D. 61, 65-68 (S.D.N.Y.2002); In re
Propulsid Prods. Liab. Litig., 208 F.R.D. 133, 144 (E.D.La.2002). Individual
issues in such cases invariably overwhelm common ones. This case is no
different.
As the court stated in In re Paxil in finding no Rule 23(b)(3) predominance:
[i]ndividual questions of fact regarding causation nevertheless subvert any
benefits to be gained through a class action proceeding. Whether, and to
what extent, Paxil causes discontinuation symptoms varies from patient to
patient. Not only do individual physiologies affect the causation issues, but
so too do the underlying illnesses and medical history of each individual
plaintiff.
212 F.R.D. at 551. See also Georgine v. Amchem Prods., Inc., 83 F.3d 610,
628-29 (3d Cir.1996) (finding no 23(b)(3) predominance where each plaintiff’s
exposure to product and lifestyle differed from one another in material
respects, and manufacturers could raise varying defenses to each individual
class member’s claim), aff’d sub nom., Amchem Prods. v. Windsor, 521 U.S. 591
(1997); In re Orthopedic Bone Screw Prods. Liab. Litig., MDL No. 1014, No.
Civ. A. 93-7074, 1995 WL 273597, at *10-11 (E.D.Pa. Feb. 22, 1995) (Bechtle,
J.) (finding lack of predominance where “there are simply too many individual
issues with respect to causation, liability and damages,” including different
defenses to be raised against different plaintiffs).
For the same reasons typicality and adequacy are lacking, so is predominance.
The number and complexity of the questions that must be resolved to determine
liability in each individual’s case predominate over any common questions.
For instance, the psychological and medical histories, the pharmacological
regimens, the roles of the physician and the physical characteristics in each
individual’s case vary. Depending on the individual’s home state, GSK’s
defenses may or may not be applicable, or may be applied differently. In
short, determining liability in each case will require an individual fact
intensive inquiry that will minimize any common questions.
C. Superiority
Not only do the plaintiffs fail to satisfy the predominance prerequisite,
they cannot meet 23(b)(3)’s superiority requirement which requires the
plaintiffs to prove that a “class action is superior to other available
methods for the fair and efficient adjudication of the controversy.”
Fed.R.Civ.P. 23(b)(3). The superiority analysis assesses the advantages and
disadvantages of using the class-action device in relation to other methods of
litigation. The Rule itself suggests various factors to consider in making
this assessment: the interest of class members in individually controlling
the litigation, the state of ongoing litigation brought by class members, the
desirability of concentrating the litigation in the particular forum, and
likely management difficulties. Id. [FN44]
FN44. Although the plain language of Rule 23(b)(3) directs the court to
consider these factors in evaluating both predominance and superiority,
in a majority of cases, the courts consider these factors solely with
respect to making a determination of superiority. Moore’s Federal
Practice, 23.44[1], 23.46[2][a] (3d ed.2006).
1. Material advancement of the litigation
Litigating the proposed common issues will involve scientific evidence,
voluminous documents, a multitude of witnesses and volumes of discovery.
According to the plaintiffs, many class members cannot individually afford the
expense of proving a prescription drug product liability case. This argument
overlooks the fact that most, if not all, cases of this type are litigated on
a contingency fee basis. Consequently, the individual plaintiff need not bear
the cost of proceeding during the pendency of the case.
In addition, given the multitude of different circumstances and defenses
among the class members, each individual trial will consume a significant
portion of each individual’s case. Hence, if costs were prohibitive, the
expense of litigating a case would impede each individual in any event.
As seen in considering typicality, the most significant portion of the
litigation parsing out causation will take place in the context of each
individual’s claim where liability will consume the fact-finding process.
Even though the issues proposed by the plaintiffs must be tried in each trial,
it may be more beneficial for a jury to assess the individual claims in the
context of these issues. Hence, although it may be more convenient for
counsel to pool resources, class treatment will not materially advance the
litigation.
2. Class members’ interest in individually controlling their lawsuit
Although it may be more efficient for counsel and the court to try the issue
of general causation in a class trial, it would sacrifice the individual
plaintiff’s interest in controlling the litigation. Any hope of efficiency
would be subverted by the individual and unique circumstances of each member’s
case which are inextricably intertwined with the general causation issue.
Whether putative class members have a significant interest in individually
prosecuting their own separate lawsuits is affected by the financial stakes
involved in each individual’s case. The greater the damages in one’s claim
vis-a-vis others’ claims, the greater the interest the individual has in
controlling the litigation. The lesser the potential damages, the less the
interest is because separate suits may be impracticable. See Fed.R.Civ.P.
23(b)(3) Advisory Committee’s Note.
Here, the individual claims are for wrongful death or serious personal
injuries. Consequently, because the potential value of each individual’s
claim is high, each has a compelling interest in controlling strategic
decisions throughout the litigation and having those decisions made by the
attorney of his or her choice. The highly personal and emotional implications
in each case militate against surrendering individual choices and decisions in
the litigation. Therefore, the strong interest class members have in
controlling their own lawsuits disfavors certification.
3. The extent of existing litigation
The existence of individual lawsuits filed in jurisdictions outside of the
forum generally weighs against certification. See Turner v. Murphy Oil USA,
Inc., 234 F.R.D. 597, 610 (E.D.La.2006); Cent. Wesleyan Coll. v. W.R. Grace &
Co., 143 F.R.D. 628, 640 (D.S.C.1992) (stating that the inquiry under this
portion of Rule 23(b)(3) is aimed at determining whether there is so much
preexisting litigation that a class would be unproductive), aff’d, 6 F.3d 177
(4th Cir.1993); Dirks v. Clayton Brokerage Co. of St. Louis, Inc., 105 F.R.D.
125, 137 (D.C.Minn.1985); In re Elec. Data Sys. Corp. Sec. Litig., 226 F.R.D.
559, 571 (E.D.Tex.), aff’d sub nom., Feder v. Elec. Data Sys. Corp., 429 F.3d
125 (5th Cir.2005); cf. In re Reliant Energy ERISA Litig., Civ. A.
H-02-2051, 2005 WL 2000707, at *4 (S.D.Tex. Aug. 18, 2005) (finding that the
absence of other litigation concerning the putative claims indicates that the
individual class members have little interest in pursuing independent
actions). To overcome this principle and the fact that there are many similar
suits pending elsewhere in various stages of litigation, the plaintiffs point
out that the plaintiffs in those other cases are represented by either
plaintiffs’ counsel or one other law firm–the Pogust firm. [FN45] The cases
being prosecuted by plaintiffs’ counsel are in the early stages. Those filed
by the Pogust firm have had general discovery. In those cases, little expert
discovery has been conducted and no dispositive motions have been decided.
FN45. The Pogust firm and its clients consent to the class action.
Pls.’ Mem. at 39.
On one hand, the state of the other litigation seems to favor certification
because the parties have not invested a substantial amount of litigation time
and class certification will not result in overlapping and redundant discovery
and motion practice. On the other hand, certification is not favored because
there are no dispositive rulings that will interfere with the presentation of
each individual’s case. Hence, the existing litigation factor is neutral.
4. Manageability of proposed class and choice-of-law impediments
In examining the manageability of the proposed class, two factors are
considered: the manageability of the plaintiffs’ proposed trial plan, and
whether there are choice-of-law conflicts in a putative nationwide class. In
re Prempro, 230 F.R.D. at 562. Choice-of-law principles present a significant
problem for class certification in this case. Conflicts among the laws of the
various jurisdictions render a class action as proposed by the plaintiffs
unmanageable.
A federal court sitting in diversity must apply the choice-of-law rules of
the forum state. Berg Chilling Sys., Inc. v. Hull Corp., 435 F.3d 455, 462
(3d Cir.2006). Accordingly, Pennsylvania law applies here.
Pennsylvania uses a two-step process to resolve choice-of-law questions.
First, the court must determine whether there is a real conflict. Second, if
there is an actual conflict, the court must then decide which state has the
greater interest in applying its law.
If after applying the respective law of each state to the same set of facts
the result is the same, there is no conflict. Phillips Petroleum Co. v.
Shutts, 472 U.S. 797, 839 n.20 (1985). In other words, there is no conflict
where the application of either state’s law renders the same result. Berg
Chilling, 435 F.3d at 462. A true conflict, on the other hand, exists when
the governmental interests of both jurisdictions would be impaired if their
law were not applied. Lacey v. Cessna Aircraft Co., 932 F.2d 170, 187 (3d
Cir.1991).
If there is a true conflict, the court proceeds to the second step and
decides which state has the greater interest in the application of its law.
LeJeune v. Bliss-Salem, Inc., 85 F.3d 1069, 1071 (3d Cir.1996) (citing Cipolla
v. Shaposka, 267 A.2d 854, 855 (Pa.1970)). This flexible inquiry uses the
Restatement (Second) of Conflict of Laws as a guide to evaluate the
significance of the contacts or relationship of the states to the parties and
the dispute. See Berg Chilling, 435 F.3d at 463; Garcia v. Plaza Oldsmobile
Ltd., 421 F.3d 216, 220 (3d Cir.2005). After characterizing the nature of the
issue as founded in contract, tort or a hybrid, the court uses the appropriate
Restatement section identifying the most relevant contacts for that type of
action to assess which state has the more significant relationship and
contacts to the issue. Berg Chilling, 435 F.3d at 463, 467; Garcia, 421 F.3d
at 220. The contacts are weighed qualitatively within the context of the
competing policies and interests of each state. Berg Chilling, 435 F.3d at
467-68; In re Estate of Agostini, 457 A.2d 861, 871 (Pa.Super.Ct.1983) (
citing Cipolla, 267 A.2d at 856). After balancing the respective governmental
policy interests of the affected states, the court applies the law of the
state having the greater interest in the determination of the issue. Garcia,
421 F.3d at 219-20.
The plaintiffs acknowledge that there are actual conflicts among the various
jurisdictions’ laws. Accordingly, I proceed directly to the greater interest
analysis.
Because this action sounds in tort, section 145 of the Restatement (Second)
of Conflict of Laws guides the analysis. That provision dictates that the law
of the state which has the most significant relationship with the occurrence
and the parties applies, and lists the following factors to consider: where
the injury occurred, where the injury-producing conduct occurred, the
domiciles of the parties, and the place where the parties’ relationship is
centered. Restatement (Second) of Conflict of Laws
Turning to this case, in light of these factors, I now evaluate the contacts
and relationship to the issue of liability–the issue implicated by the
plaintiffs’ proposed common questions. Each putative class member suffered
the injury in his or her home state. The tortious conduct took place not only
in Pennsylvania but in every state, including each class member’s home state,
where Paxil was delivered, marketed and taken. Although GSK is a Pennsylvania
corporation headquartered here, each plaintiff is presumably domiciled in his
or her state. The parties’ relationship is not centered in Pennsylvania.
Most if not all contacts with the class members, such as marketing,
prescribing and taking the drug, were in the home states. Thus, the state
having the most significant contacts and relationship to the liability issue
is each class member’s home state.
There is no way to apply Pennsylvania law to part of the liability
determination, as proposed by the plaintiffs, without disregarding the comity
afforded the other states whose interests are in protecting their citizens
from tortious harm caused within their boundaries. A state’s interest in
fixing liability for tortious harm caused within its boundaries goes to its
interests in protecting its citizens and regulating conduct there. Of course,
Pennsylvania has an interest in regulating its citizens’ labeling practices.
[FN46] When that conduct reaches and has consequences beyond the state’s
borders, it affects citizens of other states. When it does, the foreign
state’s interest in protecting its citizens outweighs Pennsylvania’s
regulatory concerns.
FN46. Plaintiffs argue that Pennsylvania has the greater interest in
applying its laws to the general liability issues, such as “general
causation” and “labeling decisions,” because it has a strong interest in
regulating its corporate citizens, pointing out that GSK’s decisions
regarding warnings, marketing, testing and distribution of Paxil
occurred in Pennsylvania at its headquarters.
To circumvent the conflicts between the differing states’ product liability
and negligence laws, the plaintiffs urge the court to invoke depecage, a
principle that applies the laws of different states to different issues in the
same case. Berg Chilling, 435 F.3d at 462. Specifically, they contend that
the court should apply Pennsylvania law to their proposed common issues of
general causation, GSK’s knowledge and its failure to warn: and then the law
of each individual class member’s home state will be applied to specific
causation and damages. Thus, the plaintiffs are proposing to apply
Pennsylvania law to determine general causation, and each class member’s home
state’s law to determine specific causation and damages.
The Third Circuit has not applied depecage to multi-state class action
claims. Nor has it applied different states’ laws to less than a complete
element of the claim, as plaintiffs are proposing we do here. Depecage
applies one state law to one entire claim and a different state law to another
claim in the same case. See, e.g., Berg Chilling, 435 F.3d at 463, 468
(applying Pennsylvania law to successor liability claim and applying New
Jersey law to contract claim); Zavecz v. Yield Dynamics, 179 F. App’x 116 (3d
Cir.2006) (upholding district court’s finding that California law applied to
contractual attorneys’ fees award claim and Pennsylvania law applied to the
tort law conversion claim).
The plaintiffs are actually asking that Pennsylvania law be applied to only a
part of the liability equation. However, the issue of liability cannot be
determined piecemeal. It must be decided by taking into consideration all
parts of the question, including defenses.
Plaintiffs assert that because the proposed common questions are so narrow,
the differences in the state laws are “inconsequential.” On the contrary, as
an unexhaustive survey shows, the variances in the laws of the various
jurisdictions are hardly inconsequential. In some states, a plaintiff may
recover; and, in another state, depending on the applicability of certain
legal principles, she may not based upon the same or similar facts. For
example, some states, like California, apply a strict liability standard to
prescription drug manufacturers for failure to warn of known or reasonably
scientifically knowable risks; others, like Pennsylvania, recognize
negligence as the only basis of recovery in cases involving prescription drugs
where a failure to provide a sufficient warning is alleged; and some, for
instance, Florida and Nebraska, have treated comment k to section 402A of the
Restatement (Second) of Torts as an affirmative defense to a prescription drug
strict liability claim. See Carlin v. Superior Court, 920 P.2d 1347, 1350- 52
(Cal.1996); Hahn v. Richter, 673 A.2d 888, 890-91 (Pa.1996); Adams v. G.D.
Searle & Co., 576 So.2d 728, 731-33 (Fla.Dist.Ct.App.1991); Freeman v.
Hoffman-La Roche, Inc., 618 N.W.2d 827, 840 (Neb.2000).
Differences in affirmative defenses also exist. For example, in some states,
assumption of the risk is a complete defense to a products liability claim;
in others, it involves a comparative fault analysis; and, in yet others, pure
comparative fault is used. Castano, 84 F.3d at 742 n.15. The learned
intermediary doctrine applies in some and not in other states.
Similarly, state laws differ with respect to the duty to warn and the
adequacy of the warning. State laws vary in how much knowledge a manufacturer
must have before a duty to warn arises. There are differences with respect to
whether warnings are required for the off-label use of a drug. Some states
require no warning, see Robak v. Abbott Labs., 797 F.Supp. 475, 476
(D.Md.1992), while others have varying levels of requirements for adequate
warning of an off-label use. Miles Labs., Inc. v. Superior Court, 184
Cal.Rptr. 98, 100 (Cal.Ct.App.1982) (manufacturer liable for failure to warn
of risks of off-label uses of its product if the manufacturer knew or should
have known of the off-label use and that use accounted for a significant
portion of the manufacturer’s sales of the drug); Peterson v. Parke Davis &
Co., 705 P.2d 1001, 1003 (Colo.Ct.App.1985); Reeder v. Hammond, 336 N.W.2d 3,
5-6 (Mich.Ct.App.1983) (intervening negligence of a physician precludes the
manufacturer’s liability for failure to warn of risks of off-label use).
Negligent infliction of emotional distress claims vary greatly among the
states. Some states require a physical impact or physical contact (see, e.g.,
Hammond v. Cent. Lane Commc’ns Ctr., 816 P.2d 593, 596-97 (Or.1991); Deutsch
v. Shein, 597 S.W.2d 141, 145-46 (Ky.1980); and others do not recognize the
cause of action at all (see, e.g., Allen v. Walker, 569 So.2d 350, 352
(Ala.1990)). These differences among the states’ laws are illustrative and
not exhaustive.
Plaintiffs propose two trial plans. In one plan, they state that the court
can conduct a class trial as to only the common issues without including any
issues that overlap with a class member’s individual case. Each class member
will return to his or her home state for a trial on the remaining disputed
issues. [FN47] In a second plan, plaintiffs propose to try each of the two
named plaintiffs’ cases to verdict on liability and damages. Using jury
interrogatories, the three proposed common issues can be decided and bind all
other members of the class in their separate trials to be conducted in the
individual’s original forum. [FN48] The plaintiffs offer no suggestion as to
how the verdicts in the plaintiffs’ cases would not be infected by the
individual facts and issues that are unique to them to ensure that the absent
class members would not be affected.
FN47. Pls.’ Mem. at 2-3.
FN48. Id. at 49-50; Hr’g Tr. at 8-9.
The plaintiffs have not demonstrated that their proposed class action is
superior to other available methods. As a threshold matter, the plaintiffs
have failed to devise a method of determining class membership without
individualized fact finding. Because an overwhelming number of individual
issues would remain unresolved for each class member, adjudication of the
proposed common issues would not materially advance a disposition of the case
as a whole. Moreover, the proposed class will be unmanageable because there
is no way to apply the varied state laws and, at the same time, guarantee
procedural fairness.
5. Appropriateness of forum
The only factor favoring this forum is that GSK is headquartered here.
Because many defense witnesses and documents are in this forum, it may be more
convenient for GSK. Yet, the defendant opposes certification and has moved for
the transfer of the plaintiffs’ cases.
The law governing liability and damages will be controlled by the individual
member’s home state’s jurisprudence. Furthermore, although there are some
liability witnesses in Pennsylvania, witnesses essential to proving liability
and damages in each individual’s cases are located in those other
jurisdictions. Thus, the forum factor does not lend to certification.
Conclusion
The proposed class does not satisfy the typicality and adequacy requirements
of Rule 23(a), nor the predominance and superiority requirements of Rule
23(b)(3). Therefore, the motion for class certification will be denied.
— F.Supp.2d —-, 2007 WL 178564 (E.D.Pa.)
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