A Certified Class Action Is Decertified on the Cusp of Trial Because Individual Issues Predominate
Sometimes it takes until the eve of trial for a judge to really get it. There, with sleeves rolled up and mired in the exhibit lists, motions in limine, draft jury instructions, summary judgment motions and the like, epiphany can strike: "Gee, the nitty-gritty of these cases really is about individual issues, and even the few named plaintiffs whose claims are being tried here really are different. How can a verdict as to one of them bind absent class members consistent with due process?"
I'm not saying that's what happened in the Neurontin off-label-use class action down in Philadelphia this week. I'm not involved in the case and have no reason to know. But it's certainly one explanation for the order I'm reading. Gregory Clark and Linda Meashey v. Pfizer Inc. and Warner-Lambert Co., LLC, No. 1819, Control Nos. 061293/061291, Slip op. (Pa. Ct. Com. Pleas -- Philadelphia County Feb. 9, 2009). [If you'd like a copy, e-mail me and I'll shoot you a pdf.]
The Clark case was scheduled to go to trial on March 9 as a class action. But yesterday, the court granted summary judgment on the express warranty claim and decertified the class. It did, however, deny summary judgment on the individual claims for misrepresentation, negligence, and negligence per se, and kept the March 9 trial date for the two plaintiffs' individual claims.
The court's reason for granting summary judgment on the express warranty claim was simple: "Here, there is no evidence that plaintiffs saw, heard or in any way received any warranties that Neurontin could be used in circumstances not approved by the FDA. The alleged fraud on the medical profession which is the essence of plaintiffs' claims does not create any warranty." Slip op. at 4.
Importantly, the plaintiffs' individual proofs demonstrated that some class members actually received benefits from their off-label use of Neurontin. Indeed, Plaintiff Meashey's prescribing physician testified that, in his clinical judgment, Neurontin had been effective for five patients whom he had taken off of the medicine after a Dateline feature, but subsequently re-prescribed the medicine when they experienced worsening anxiety. Indeed, he even testified that Plaintiff Meashey herself "had gotten help with anxiety while on Neurontin." Slip op. at 3. Moreover, Plaintiff Clark's treating physician testified that he "continues to prescribe Neurontin for [certain off-label] conditions because in his clinical judgment it is effective" (slip op. at 3).
Faced with evidence that at least some class members benefited from the very use of the medicine that plaintiffs claimed was unlawful, the court granted summary judgment for defendants "as to those class members who benefited from prescribed off-label uses of Neurontin." Slip op. at 4.
Even more important, the court concluded that, for this reason, the class should be decertified:
Individual questions of fact exist as to each class member to determine whether their off-label prescription of Neurontin was beneficial. Whether an individual class member suffered a compensable loss is an inherently individualized question which predominates, making class resolution impracticable and possibly impossible.
Slip op. at 5.
