In re Bisphenol-A (BPA) Polycarbonate Plastic Products Liability Litigation

276 F.R.D. 336, 2011 U.S. Dist. LEXIS 73375, 2011 WL 2634248
CourtDistrict Court, W.D. Missouri
DecidedJuly 5, 2011
DocketMDL No. 1967; Master Case No. 08-1967-MD-W-ODS
StatusPublished
Cited by41 cases

This text of 276 F.R.D. 336 (In re Bisphenol-A (BPA) Polycarbonate Plastic Products Liability Litigation) is published on Counsel Stack Legal Research, covering District Court, W.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Bisphenol-A (BPA) Polycarbonate Plastic Products Liability Litigation, 276 F.R.D. 336, 2011 U.S. Dist. LEXIS 73375, 2011 WL 2634248 (W.D. Mo. 2011).

Opinion

[338]*338 ORDER AND OPINION DENYING MOTIONS FOR CLASS CERTIFICATION

ORTRIE D. SMITH, Senior District Judge.

I. INTRODUCTION

This case arises from Defendants’ use of Bisphenol-A (2, 2-bis (4-hydroxyphenly)-propone), more commonly referred to as “BPA,” in baby bottles and sippy cups. On August 13, 2008, the Judicial Panel on Multidistrict Litigation (“the Panel”) centralized fourteen cases in this district and assigned the ease to the undersigned. Thereafter, the Panel has continued to transfer cases from around the country. In addition, a number of eases were filed in this District; the Panel does not address intra-District transfers, and on its own the Court has combined those cases with the multidistrict case. At present, there are approximately twenty-four cases left in this litigation and there are six remaining defendants: Handi-Craft Company (“Handi-Craft”), Gerber Products Company (“Gerber”), Playtex Products, Inc. (“Playtex”), Evenflow Company, Inc. (“Evenflow”), Nalge Nunc International Corporation [339]*339(“Nalge Nunc”), and RC2 Corporation (“RC2”).

Plaintiffs seek certification of various classes. In support, they have filed (1) an Omnibus Motion to Certify and (2) six separate motions to certify for each of the remaining Defendants. In connection with their Omnibus Motion, Plaintiffs also provided a Trial Plan and Proposed Instructions. The Court has reviewed all of these materials and, having done so, denies all motions (Does. # 539, 544, 546, 548, 550, 552, and 554) to certify a class.1

Plaintiffs’ primary position posits certification of three multi-state classes.2 In the alternative, they ask the Court to certify separate state-wide classes against each of the Defendants. In the interest of simplicity, the Court will address Plaintiffs’ alternative position first. However, a cautionary word is in order: the Court does not deem it necessary to address each and every contention raised by the parties and instead has focused on the issues it deems most significant. The Court’s silence with respect to an issue should not be construed as an opinion of any sort.

II. PLAINTIFFS’ ALTERNATIVE PROPOSAL — SINGLE STATE CLASSES

Plaintiffs’ alternative proposal is to certify separate classes comprised of those who purchased a defendant’s product in a particular state, based on the states where the named plaintiffs purchased their products. For example, with respect to Defendant Playtex, Plaintiffs propose “separate statewide unjust enrichment classes in the states where Named Plaintiffs purchased or acquired their products — Arkansas, California, Georgia, Kansas, Missouri, South Carolina and Washington.” Docket # 555 at 31. Plaintiffs do not offer much explanation as to why this alternative approach satisfies Rule 23. All that is said is that the “same reasons” that support Plaintiffs’ multi-state plan will also support certification in individual states— but, to consider the Plaintiffs’ alternative position means the Court has rejected the multi-state groupings, so those “same reasons” are not necessarily helpful in ascertaining the viability of the single-state classes.

More importantly, the alternative request misapprehends the transferee court’s role in an MDL. When pretrial proceedings have concluded, the eases transferred by the MDL Panel are to be remanded to the originating court. 28 U.S.C. § 1407(a). The transferee court lacks the authority to transfer the case to itself for trial purposes. Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 118 S.Ct. 956, 140 L.Ed.2d 62 (1998). The only way the transferee court could effectively conduct a trial (which necessarily happens after pretrial proceedings) in the transferred cases is if the transferee court concludes that all such cases should be part of a class action. This does not mean, however, that all pretrial matters need to be — or even should be — resolved by the transferee court. Matters related to the administration of individual trials — or matters that relate to only a few cases — should be decided by the court that will actually conduct the trial. The purpose of an MDL is to foster efficiency by having a single judge address and decide issues that will apply to all (or at least a significant number of) the transferred cases. Plaintiffs essentially ask the undersigned to decide, for instance, that a class of Washington consumers should be certified for trial in the Western District of Washington. This issue affects only a few cases, and relates to the manner in which the case will be tried. It is not an issue that the undersigned should dictate to the transferor courts, but is an issue that is more appropriately decided by the judges charged with presiding over the trial. Therefore, Plaintiffs’ request to certify individual state-wide classes is denied without prejudice.

III. PLAINTIFFS’PRIMARY POSITION — MULTI-STATE CLASSES

A. Introduction

Plaintiffs principal position involves the certification of multi-state classes, [340]*340and the Court’s analysis begins by recognizing the legal framework created by Rule 23. Rule 23(a) sets forth four prerequisites all class actions must satisfy. The class must then qualify under one of the categories described in Rule 23(b). Plaintiffs bear the burden of demonstrating Rule 23’s requirements are satisfied. E.g., Coleman v. Watt, 40 F.3d 255, 258 (8th Cir.1994). The Court is required to conduct a “rigorous analysis” that entails looking behind the pleadings and ascertaining the nature of Plaintiffs’ claims as well as the nature of the evidence. The Court is not permitted to resolve the merits, but “[fjrequently that ‘rigorous analysis’ will entail some overlap with the merits of the plaintiffs underlying claims.” Wal-Mart Stores, Inc. v. Dukes, — U.S. -, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011); see also Elizabeth M. v. Montenez, 458 F.3d 779, 786 (8th Cir.2006).

The Court’s discussion will focus on three of the components required for certification: commonality, predominance, and superiority. The Court has elected to focus on these issues because they present the most insurmountable obstacles to Plaintiffs’ request and because they are related issues. The Court will also address one issue related to adequacy, but notes the issue is one that (unlike the others) theoretically can be cured.

Commonality is one of the four prerequisites required for all class actions, and it exists when “there are questions of law or fact common to the class.” Fed.R.Civ.P. 23(a)(2).

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Bluebook (online)
276 F.R.D. 336, 2011 U.S. Dist. LEXIS 73375, 2011 WL 2634248, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bisphenol-a-bpa-polycarbonate-plastic-products-liability-litigation-mowd-2011.