Recent Products Liability Decisions

Rader v. Teva Parenteral Medicines, Inc.

Goodwin Procter attorneys defeated a motion for class certification in a case brought on behalf of approximately 60,000 former patients of two Las Vegas endoscopy centers who alleged they were exposed to (but not infected by) blood-borne diseases including Hepatitis C due to the centers' alleged mishandling of Teva's prescription anesthetic, propofol. Rader v. Teva Parenteral Meds., Inc., 276 F.R.D. 524 (D. Nev. 2011). Among other reasons for denying class certification, the court held that the plaintiff was not an adequate class representative under Rule 23(a)(4) because his decision to abandon emotional distress claims created an "insurmountable conflict between his own interests and that of the class" in that class members would be bound by the plaintiff's decision not to bring emotional distress claims in the event of a later final judgment. The court also held that there were individualized causation issues as well, including the need to evaluate whether any individual was treated with Teva's propofol, the injection practices used to administer the propofol to each person, and whether the person was actually exposed to a blood-borne pathogen.

Ratliff v. Merck & Co., Inc. -- Nicole S. Naghi On February 10, 2012, a Kentucky Appellate Court reversed the certification of a class of Vioxx purchasers who alleged that the drug's manufacturer, Merck, falsely advertised Vioxx's safety to doctors when it knew the drug was dangerous. Ratliff v. Merck & Co., Inc., 2012 Ky. App. LEXIS 31 (Ky. Ct. App. Feb. 10, 2012). The plaintiff sought a class consisting of Kentucky residents "who have purchased and taken Vioxx and who, upon recommendation of the FDA, have contacted or will contact their physician seeking advice regarding their use of Vioxx." The proposed class sought to assert claims for violation of the Kentucky Consumer Protection Act and for fraud and unjust enrichment. Merck challenged the trial court's decision to certify a class because, among other reasons, damages for fraud could not be determined without individualized fact finding. The plaintiffs argued that the trial court had correctly applied a "fraud upon the market" theory wherein certain elements of fraud, including "reliance, ascertainable loss and causal nexus," could be presumed. Merck argued that this theory did not apply in the prescription drug context. The Court of Appeal agreed with Merck. The court rejected the application of the...