In re Phenylpropanolamine (PPA) Products Liability Litigation

214 F.R.D. 614, 2003 WL 21051683
CourtDistrict Court, W.D. Washington
DecidedFebruary 7, 2003
DocketNo. MDL 1407
StatusPublished
Cited by24 cases

This text of 214 F.R.D. 614 (In re Phenylpropanolamine (PPA) Products Liability Litigation) is published on Counsel Stack Legal Research, covering District Court, W.D. Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Phenylpropanolamine (PPA) Products Liability Litigation, 214 F.R.D. 614, 2003 WL 21051683 (W.D. Wash. 2003).

Opinion

ORDER DENYING PLAINTIFFS’ RENEWED MOTION FOR CLASS CERTIFICATION PURSUANT TO RULE 23(B)(3) FOR ECONOMIC INJURY CLAIMS

ROTHSTEIN, District Judge.

I. BACKGROUND

Plaintiffs’ claims stem from their purchase of medication containing phenylpropanolamine (“PPA”). The court outlined the essential history involved in plaintiffs’ cases and the PPA multi-district litigation (“MDL”) generally in previous orders, including one denying certification in these cases. See Order Denying Certif. at 2 (Sept. 4, 2002). It is enough to repeat here that defendants, along with other entities responsible for manufacturing and marketing PPA products, withdrew those products from the market following a November 6, 2000 Food and Drug Administration (“FDA”) health advisory and concomitant request for the voluntary removal of PPA-containing products from the market. See, e.g., Deck of Michael W. Hogue (“Hogue Decl.”), Ex. B (FDA public health advisory pointing to a recent study reporting an association between PPA and hemorrhagic stroke, recommending that consumers not [615]*615use any products containing PPA, and noting request for voluntary removal). As described in more detail below, plaintiffs primarily seek economic relief based on their continued possession of PPA-containing products as of November 6, 2000.

The court previously denied certification upon finding plaintiffs’ failure to demonstrate satisfaction of Federal Rule of Civil Procedure 23(b)(3). The court concluded that the laws of each state of purchase would apply to the proposed nationwide class and found that plaintiffs neither adequately demonstrated the predominance of common issues of law, nor provided the court with a trial plan suitable at the class certification stage. See Order Denying Certif. at 14-17. The court later found that plaintiffs only belatedly provided, in their motion for reconsideration, some of the arguments and information the court found lacking in the class certification briefing. See Order Denying Reeons. at 3-4 (Sept. 26, 2002).

In the renewed motion for class certification currently before the court, plaintiffs further address the court’s concerns relating to state law variations and submit a trial plan. They also address superiority-related issues the court raised in granting plaintiffs leave to file the renewed motion for class certification, along with the remaining requirements of Rule 23.

II. CLASS ALLEGATIONS

Plaintiffs seek class certification in six different PPA cases, each brought against a different defendant. They propose the following class:

Consumers (excluding those who assert personal injury claims and excluding residents of California) who purchased and still possessed unused portions of non-expired PPA products as of November 6, 2000, the date of defendants’ voluntary PPA product withdrawal (or thereafter, in the event PPA products were sold after the November 6, 2000 withdrawal).1

They seek refunds for class members under theories of unjust enrichment and breach of implied warranty. Each class would break down into at least three subclasses, including an unjust enrichment subclass, an implied warranty/privity subclass, and an implied warranty/non-privity subclass.

Class members claim they purchased an unmerchantable product and suffered economic injury in the amount of the price of the unused portion of the product possessed as of November 6, 2000. They seek a refund or disgorgement of defendants’ profits through restitution, the establishment of a fund supporting a medical research, education, and notification program, and injunctive relief in the form of notice to consumers still in possession of PPA-containing products.

The approximate size of the proposed class is unknown. However, from a PPA over-the-counter (“OTC”) cough, cold, and flu product market totaling some $440 million, plaintiffs proffer a value of unused PPA-containing product possessed by consumers on November 6, 2000 numbering in the tens of millions of dollars. From that total, putative class members seek refunds - averaging in the range of $3.00 per product.2

III. DISCUSSION

Federal Rule of Civil Procedure 23 governs class actions. Plaintiffs, as the party seeking class certification, bear the burden of demonstrating that they meet each of the four requirements of Rule 23(a) and at least one of the requirements of Rule 23(b). Zin-ser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186, amended by 273 F.3d 1266 (9th Cir.2001). A trial court must conduct a “.‘rigorous analysis’” in order to determine whether the party seeking class certification satisfies the prerequisites of Rule 23. Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, [616]*6161233 (9th Cir.1996) (quoting In re American Med. Sys., Inc., 75 F.3d 1069, 1078-79 (6th Cir.1996)). The trial court possesses broad discretion on the question of class certification, but must exercise that discretion within the framework of Rule 23. Zinser, 253 F.3d at 1186.

Plaintiffs seek certification pursuant to Rule 23(b)(3). Rule 23(b)(3) allows for class certification where “the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual 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). “Implicit in the satisfaction of the predominance test is the notion that the adjudication of common issues will help achieve judicial economy.” Valentino, 97 F.3d at 1234. “Where classwide litigation of common issues will reduce litigation costs and promote greater efficiency, a class action may be superior to other methods of litigation.” Id.

Plaintiffs assert that, outside of privity— which they account for through the above-described subclassing plan, no material variations in state unjust enrichment and breach of implied warranty laws exist as applied to the facts of the proposed class. They assert the predominance of common facts given that their claims relate to one product, and then-evidence commonly lies in the November 6, 2000 FDA advisory and defendants’ product withdrawal. However, even assuming relative uniformity in state laws and the ability to avoid individualized factual inquiries in establishing breach of warranty and unjust enrichment, the court finds the proposed class unsuitable for certification under Rule 23(b)(3).

A. Factors Relevant to Rule 23(b)(8) Predominance and Superiority Analysis:

Rule 23(b)(3) identifies a list of factors pertinent to the class certification analysis:

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Cite This Page — Counsel Stack

Bluebook (online)
214 F.R.D. 614, 2003 WL 21051683, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-phenylpropanolamine-ppa-products-liability-litigation-wawd-2003.