In re Tetracycline Cases

107 F.R.D. 719, 1985 U.S. Dist. LEXIS 15392
CourtDistrict Court, W.D. Missouri
DecidedOctober 1, 1985
DocketNo. 83-0034-CV-W-0-A
StatusPublished
Cited by63 cases

This text of 107 F.R.D. 719 (In re Tetracycline Cases) 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 Tetracycline Cases, 107 F.R.D. 719, 1985 U.S. Dist. LEXIS 15392 (W.D. Mo. 1985).

Opinion

ORDER

ROSS T. ROBERTS, District Judge.

These consolidated proceedings are before the court upon a joint application by the plaintiffs in Adams v. American Cyanamid Company, et al., Case No. 83-0026-CV-W-0, and Bernard v. American Cyanamid Company, et al., Case No. 83-0034-CV-W-0, to certify a number of asserted common issues for class action treatment under Rules 23(b)(3) and 23(c)(4)(A), Fed.R. Civ.P.1 The class which has been proposed would consist of all persons who ingested, in Missouri before their eighth birthday, or whose mothers ingested, in Missouri during pregnancy with such persons, a drug of the tetracycline class or a combination drug containing a tetracycline class agent; but would be further limited to persons who were residents of the State of Missouri on any date from January 19, 1983 through the date of dissemination and publication of the class notice.

Following completion of discovery on the class action issues (which had been coupled with extensive merits discovery) and the parties’ oral arguments (June 27, 1985) on certain points presented by the application, the court indicated its intention to deny the application, subject to a written order on the matter. This order confirms and carries into formal effect that intent, and undertakes to explain the court’s reasoning in so ruling.

BACKGROUND OF THESE CASES

The original complaint in the Bernard case, naming Christopher Bernard as the sole plaintiff, was filed in this court on January 17, 1983. It contained no request for class certification of any sort. Such a request was presented two days later, however, as part of the Bernard plaintiffs’ first amended complaint. A second amended complaint, filed by leave of court on July 27, 1983, set forth additional class allegations, proposed numerous additional class representatives, and added a definition of the proposed class which the court subsequently interpreted as being limited in geographic scope to the State of Missouri. See Order of July 29, 1983.

The original petition in the Adams case was filed in the Circuit Court of Clay County, Missouri, on February 10, 1983. On that same day, prior to service of process and without any other form of notice to any defendant, the state court granted plaintiffs’ motion to certify a class action under Rule 52.08, Mo.Sup.Ct.R. The class certified was to consist of “all of those persons [residing in certain counties in Western and Northwestern Missouri] who have been administered prenatally during the last half of pregnancy or postnatally during the first ten (10) years of life the drug commonly known as tetracycline and its derivatives and who have suffered discoloration of or structural deterioration of the teeth and other similar change.” On February 15, 1983, still prior to service or any other notice to defendants, the state court granted plaintiffs’ motion to expand [722]*722the class to include the residents of certain other Northwestern Missouri counties.

On February 28, 1983, defendants Bristol-Myers and Pfizer removed the Adams case to this court, see Adams v. Lederle Laboratories, 569 F.Supp. 234 (W.D.Mo.1983), and moved that the class certified by the state court be vacated. Following an exchange of briefs on that motion, plaintiffs filed a motion on May 18, 1983, requesting that the class be expanded to encompass the entire State of Missouri. After the filing of additional briefs on the class issues, the court ruled from the bench during the course of a conference on July 14, 1983, that the class certified by the Missouri state court in Adams would be decertified. The court also entered an order on July 27, 1983, denying plaintiffs’ request for immediate certification of a conditional class pursuant to Rule 23(c)(1), but treating plaintiffs’ request for a statewide class as a continuing request. Plaintiffs’ first amended complaint in the Adams case, containing additional proposed class representatives and class allegations, was subsequently filed by leave of court on April 10, 1984.

On March 25, 1983, the court had entered an order consolidating the Adams and Bernard cases, along with a number of other individual actions involving tetracycline claims then pending in this district, for purposes of discovery and other pretrial matters. Plaintiffs’ joint application for class certification on common issues was subsequently filed on April 23, 1984.

Each of the named defendants is alleged to have manufactured and marketed a class of antibiotic drugs generically referred to as tetracycline. The ingestion of tetracycline by plaintiffs, either in útero or during childhood and prior to full tooth development (approximately the first eight years of life), is claimed to have resulted in permanent tooth discoloration and/or structural damage to their teeth due to the tendency of tetracycline to become a part of the calcification process through which teeth are formed. Plaintiffs seek to recover $40,000 per .individual as compensatory damages, and, in addition, pray for the recovery of punitive damages.

Plaintiffs’ second amended complaint in Bernard and the first amended complaint in Adams advance theories of recovery based on strict liability, negligence, and breach of express and implied warranties. Plaintiffs’ allegations include a failure by defendants prior to the marketing of tetracycline to test adequately the effect of the drug on tooth development, a failure prior to marketing to reveal to the Food and Drug Administration information then known about the effect of tetracycline on the calcification process, a failure to conduct post-marketing testing concerning the effect of tetracycline on tooth formation, a failure to include adequate precautionary labeling or otherwise to inform prescribing physicians or the public adequately as to the effect of tetracycline on tooth development, despite knowledge of that effect,2 the conduct of an active campaign to minimize the impact of knowledge concerning the effect of tetracycline on tooth development, and the over-promotion of tetracycline through false and misleading claims.3

II.

PREREQUISITES FOR CLASS CERTIFICATION

In order for these actions to proceed as a class action, plaintiffs must first meet the four prerequisites of Rule 23(a), namely, that:

... (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact [723]*723common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

In addition, it must be demonstrated that the proposed class action falls into one of the categories designated in Rule 23(b). Here, plaintiffs seek class certification pursuant to Rule 23(b)(3), which requires the court to find 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,”4 and pursuant to Rule 23(e)(4)(A), which provides that “an action may be brought or maintained as a class action with respect to particular issues.”

III.

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Cite This Page — Counsel Stack

Bluebook (online)
107 F.R.D. 719, 1985 U.S. Dist. LEXIS 15392, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-tetracycline-cases-mowd-1985.