Wednesday, November 22, 2006

Vioxx Class Action Rejected

In the Vioxx MDL, the judge today rejected a class action for personal injury and wrongful death cases.  Judge Eldon Fallon denied the Plaintiffs' Steering Committee's motion to certify a nationwide class.  Here's a link to Judge Fallon's Nov. 22 order denying class certification.

This should come as little surprise, given the reluctance of courts to certify mass tort personal injury class actions in general, and the extent of individual issues in the Vioxx litigation in particular.  The court's order cites similar rejections of class certification in other recent mass torts including Prempro, Baycol, Propulsid, Rezulin, tobacco, and Firestone tires.

Applying New Jersey choice of law rules (because the class representatives originally filed the action in New Jersey before it was transferred to E.D. La. as part of the multidistrict litigation), Judge Fallon determined that he would apply the substantive tort law of each plaintiff's home state.  He emphasized that the application of multiple states' laws made class certification very difficult, citing the Fifth Circuit's opinion in Castano and the Seventh Circuit's opinion in Bridgestone/Firestone.

Beyond the choice of law problem, Judge Fallon emphasized the extent of individual issues in the Vioxx cases.  He concluded that although the class met the Rule 23 requirements of numerosity and commonality, it failed on typicality, adequacy, predominance, and superiority.  The court distinguished single-situs mass accidents, suggesting that class cert may be easier in such cases than in mass pharmaceutical products liability litigation.  Judge Fallon made it clear that this decision applies only to the personal injury and wrongful death class action, not to class actions for purchase claims or medical monitoring.


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