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NJ Vioxx Class Certification Denial

By James M. Beck and Mark Herrmann

We can't say much, because Herrmann's on the road and Bexis is involved in the litigation, but a trial court in New Jersey just denied certification of an individual consumer economic loss class action, both nationwide and limited to New Jersey. The bases of the decision:

There is no predominance. "The causal nexis between the loss sustained by each member of the class and the consumer fraud. . .creates an insurmountable barrier to a class action." Slip op. at 12. Consumers made "individualized decisions" to use the drug. Id. at 13.

Unjust enrichment is not a valid theory of liability in a case involving allegations of improper warnings/marketing of a product. Id. at 15.

There is no typicality because each class menber "received a different benefit from the drug." Id. at 16.

There is no superiority because "it would be unfair to [defendant] to certify a class and allow a jury to reach one uniform determination of liability where results [as shown by past outcomes] could vary from plaintiff to plaintiff." Id. at 17.

The court did not reach choice of law. Id. at 18

Full post as published by Drug and Device Law on March 18, 2009 (boomark / email).