Shepherd v. Vintage Pharmaceuticals, LLC

310 F.R.D. 691, 2015 U.S. Dist. LEXIS 153115, 2015 WL 6956767
CourtDistrict Court, N.D. Georgia
DecidedNovember 4, 2015
DocketCivil Action No. 1:11-CV-3805-SCJ
StatusPublished
Cited by2 cases

This text of 310 F.R.D. 691 (Shepherd v. Vintage Pharmaceuticals, LLC) is published on Counsel Stack Legal Research, covering District Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shepherd v. Vintage Pharmaceuticals, LLC, 310 F.R.D. 691, 2015 U.S. Dist. LEXIS 153115, 2015 WL 6956767 (N.D. Ga. 2015).

Opinion

ORDER

STEVE C. JONES, District Judge.

This matter is before the Court on Plaintiffs’ motion for class certification [144]; Defendants’ motion for oral argument [149]; and Plaintiffs’ motion for leave to file excess pages [150].

I. Background

A. Procedural History

This proposed class action products liability case was filed by Plaintiff Lauren Betanc-ourt in the State Court of Cobb County on September 30, 2011, seeking to recover damages for injuries arising from her purchase and consumption of allegedly defective birth control pills. The case was removed to this Court as a putative class action having federal diversity under the Class Action Fairness Act.

Plaintiffs, Lauren Betancourt and Angela Shepherd, filed a Third Amended Complaint against Defendants, Endo Pharmaceuticals, Inc., Endo Pharmaceuticals Holdings, Inc., Vintage Pharmaceuticals, LLC, and Patheon, Inc. on May 23, 2012. Doc. No. [43]. In their Third Amended Complaint, Plaintiffs allege that Defendants “designed, manufactured, packaged, sold, and distributed birth control pills,” (“the Recalled Products”) that were “defectively and dangerously designed, manufactured, packaged, sold, and distributed.” See Doc. No. [43], ¶¶ 10-11. Plaintiffs state the Recalled Products “purchased by the Plaintiffs were packaged such that select blisters found inside the pill box were rotated 180 degrees within the card, reversing the weekly tablet orientation” and as a “result of the packaging error, the daily regimen for the BIRTH CONTROL PILLS left women without adequate contraception and at risk for unwanted pregnancy.” Id., ¶ 12.

The parties engaged in mediation in an attempt to settle the case. Those efforts were unsuccessful and on December 17, 2014, the Court denied Defendant Patheon’s motion to dismiss for failure to properly serve and lack of personal jurisdiction. See Doc. No. [126]. The Court previously determined that discovery in this matter would be bifurcated into class action and merits issues. See Doc. No. [31]. The parties engaged in discovery on the class issues and Plaintiffs filed the instant motion for class certification.

During the time this action has been pending, Plaintiffs also moved before the United States Judicial Panel on Multidistrict Litigation for centralization of the ease. See In re Qualitest Birth Control Products Liability Litigation, 38 F.Supp.3d 1388 (J.P.M.L.2014). The Panel declined to centralize the cases because it found that “individualized facts — particularly relating to whether each plaintiff received an improperly packaged Qualitest birth control product and whether she became pregnant as a result of taking [694]*694the pills in the wrong order — will predominate over the common factual issues alleged by plaintiffs.” Id. at 1389.

B. Facts

In September 2011, Defendants issued a nationwide recall of eight different oral contraceptive products packaged by Patheon for Qualitest, a company which distributes pills to distributors and pharmacies. The recall was initiated when a pharmacist in Iowa returned three blister packs of Cyclafem 7/7/7 because one of the packs had been packaged upside down obscuring the lot number and expiration date. The Iowa package is the only known defective package received by a consumer. See Rajroop Depo., pp. 125-28.

Shortly after receiving notification from the Iowa pharmacist, Defendants issued a Recall Notice which stated that “select blister [packages] were rotated 180 degrees within the card, reversing the weekly tablet orientation and making the lot number and expiry date no longer visible.” Of the 507,-966 blister packs that were returned in the recall, only 53 were improperly packaged in the reverse order. Significantly, therefore, this is not a case where a single defect is contained within every identical product. Rather, the record shows the possibility that only a very small number of blister packs manufactured incorrectly might have been received by consumers.

When individual consumers called to ask about the recall and reimbursements, they were directed to their pharmacist. The reimbursement issue was handled on a phar-maeist-by-pharmacist basis. See Mallory Depo., at 67-68,158-59.

Plaintiffs’ counsel avers that in addition to the two named Plaintiffs, they represent 117 women, 113 of whom became pregnant, 94 of whom carried the babies to term, 17 women who did not carry the babies to term, and 4 who did not become pregnant. Counsel notes that these women live in 26 of the 50 states.

Plaintiffs assert claims of (1) strict liability, (2) negligence, (3) breach of express and implied warranty, (4) violation of state consumer protection statutes, and (5) unjust enrichment. Plaintiffs propose a nationwide class with four subclasses:

Class: All persons within the United States of America, who, within the applicable limitations period, purchased and/or ingested the defectively designed, manufactured, packaged, sold, and distributed birth control pills with the trademark names Cyclafem 1/35, Cyclafem 7/7/7, Em-oquette, Gildess FE 1.5/30, Gildess FE 1/20, Orsythia, Previfem, and Tri-Previ-fem.
Subclass A: Of those Class members as defined above, those persons who ingested none of the birth control pills and/or ingested the birth control pills and experienced no significant physical symptoms;
Subclass B: Of those Class members as defined above, those persons who experienced significant physical symptoms; Subclass C: Of those Class members as defined above, those persons who became pregnant, and the pregnancy was not carried to term;
Subclass D: Of those Class members as defined above, those persons who became pregnant; and, the pregnancy resulted in the live birth of a baby.

C. Contentions

As to the general class, Plaintiffs contend they sufficiently proffered evidence on nu-merosity, commonality, typicality, and predominance. Plaintiffs argue that courts have approved class actions brought against drug manufacturers by persons who did not suffer personal injuries, but who contended that the drug was defective and the plaintiffs did not receive what they paid for. Although Plaintiffs acknowledge they face a “heavier burden” with respect to the sub-classes alleging personal injuries, Plaintiffs nonetheless assert that class actions can also proceed on these theories.1

Defendants respond that Plaintiffs cannot satisfy the requirements of Rule 23 because the class and subclasses are not “aseertain[695]*695able.” Defendants further contend that Plaintiffs are not adequate class representatives because they have not kept informed of the litigation and have not directed and guided counsel. Defendants argue that Plaintiffs’ claims are not typical and Plaintiffs cannot satisfy the commonality requirement. As to Rule 23(b) issues, Defendants aver that Plaintiffs cannot establish predominance because there are complex choice of law questions with respect to all of Plaintiffs’ state law claims. Defendants argue that common issues of fact do not predominate, while individualized damage issues do predominate and under these circumstances a class action is not the superior method of adjudication.

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310 F.R.D. 691, 2015 U.S. Dist. LEXIS 153115, 2015 WL 6956767, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shepherd-v-vintage-pharmaceuticals-llc-gand-2015.