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denying certification of an OxyContin class
Summary of this case from Harris v. Purdue Pharma, L.P.Opinion
Civil Action No. 01-268-DCR
February 25, 2002
ORDER DENYING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
I. INTRODUCTION
By Order entered December 27, 2001, this Court scheduled a hearing on Plaintiffs' Motion for Class Certification to be held on February 12, 2002. However, prior to the scheduled hearing, the Court received letters from the parties' counsel addressing the issue of whether a hearing would be beneficial. The Court declined to cancel the hearing after receiving indication that it would be helpful.
Notwithstanding their expressed desire for a hearing concerning the certification issue, on February 7, 2002, Plaintiffs filed a "Notice of Withdrawal of Their Motion for Class Certification." As a result, the Court converted the class certification hearing into a scheduling conference. During the scheduling conference, the Court heard arguments concerning the Plaintiffs' Notice of Withdrawal.
On the same date, Plaintiffs' counsel sought to obtain class certification over this same putative group in a separate action pending in the United States District court for the Southern District of Ohio, Western Division. During the hearing held in this matter on February 12, 2002, Plaintiffs' counsel explained that their Notice of Withdrawl and corresponding motion to expand the prospective class in Ohio was due to their fear that this court would not address their class certification motion issue in a timely way. Thus, this Court's ruling meets Plaintiffs' expressed desire for a timely ruling on the class certification issue.
Defendants have objected to Plaintiffs' attempt to withdraw their motion, arguing that Rule 23 of the Federal Rules of Civil Procedure does not permit this withdrawal. They assert, instead, that the Plaintiffs' actions constitute improper forum shopping. Defendant Purdue Pharma L.P.'s (hereafter, "Purdue") February 8, 2002, memorandum outlines the alleged prejudice that will occur if Plaintiffs are permitted to withdraw their request for class certification at this stage of the litigation. It claims that this prejudice includes, but is not limited to, confusion in knowing whether it will be required to eventually defend class or individual claims at trial. [Record No. 78]
The Defendant points out that the attempted withdrawal is without prejudice and, therefore, could be raised at a later stage of the proceedings.
After considering the authorities cited by Purdue as well as Plaintiffs' proffered explanation for seeking to withdraw the motion, the Court finds that the interests of justice will be served and prejudice will be lessened to all the parties by expeditious consideration of the issue of class certification. In addition, the Court agrees with the position advanced by the Defendants that it is required to make a determination concerning class certification at the earliest practicable time. The Court, therefore, declines to accept Plaintiffs' attempt to withdraw the pending motion. Further, after reviewing the file of this matter, the Court concludes that it may address and resolve the issue of class certification without any further hearings.
II. PROCEDURAL HISTORY
This action was originally filed in Clay County Circuit Court on June 21, 2001, on behalf of fifteen plaintiffs alleging numerous causes of action against Defendants. Plaintiffs' claims are based upon alleged addiction to and/or damage from the prescription and use of OxyContin ® (Amended Complaint, ¶ 2-12) Plaintiffs seek to represent a proposed class composed of "all persons who have been harmed due to the addictive nature of OxyContin." (Amended Complaint, p. 4)
Through their Amended Complaint, Plaintiffs assert claims based upon: (1) fraud and violations of the Kentucky consumer Protection Act; (2) negligence and gross negligence; (3) products liability based on failure to warn; (4) products liability for manufacturing defects; (5) negligence per se (6) injunctive and equitable relief regarding medical monitoring; (7) continuing public nuisance; (8) conspiracy; (9) breach of warranty; (10) unjust enrichment; and (11) false advertising.
The Amend Complaint alleges that Plaintiffs Amy Foister, Jimmy Arnett, Rodney Howard, Michael Lee Daniels, the estate of Gus Dale Robbins, Sr., James Presley Craig, George Allen Saylor, Robin Griffin and the estate of Johnny Johnson Wynn all suffered from addiction to OxyContin ®. The estates of Gus Dale Robbins, Sr. and Johnny Johnson Wynn claim wrongful death as a result of overdoses of Oxycontin ®. The remaining Plaintiffs' claims are based on loss of consortium, pain and suffering, and loss of financial support. Since the filing of the Amended complaint, Plaintiff Jimmy Arnett was dismissed as Plaintiff.
The large number of Defendants primarily involve two groups: those companies connected with Purdue and those companies connected with Abbott Laboratories, Inc. ("Abbott") (collectively, the "Defendants"). The Defendants were involved in the development, testing, manufacturing, distribution and marketing of OxyContin ®. Drs. Ali Sawaf and Craig Leicht were initially named as defendants as a result of their prescribing OxyContin ® for several of the addicted Plaintiffs. Pineville Community Hospital was also included.
The Purdue Defendants include Purdue Pharma, L.P., Purdue Pharma, Inc., The Purdue Frederick Co., and the "Partners Against Pain" website. This latter group is not a company. Partners Against Pain is the website that Purdue uses to advocate pain management and OxyContin ®.
The Abbott Defendants include Abbot Laboratories, Inc. and Abbott Laboratories, Inc., d/b/a, Abbott Sales Marketing and Distributing company.
After removal to this Court, Plaintiffs dismissed, without prejudice, Drs. Sawaf and Leicht and the Pineville Community Hospital as Defendants.
OxyContin ® is a highly-regulated schedule II controlled narcotic sold in tablet form as a federally-approved opioid analgesic prescription pain medication. It has been approved by the federal Food and Drug Administration for use by doctors in the treatment of moderate to severe pain and is available only by prescription. The sole ingredient in this drug is Oxycodone Hydrochloride.
Plaintiffs allege that their claims are the product of the Defendants' aggressive marketing strategy, coercive sales tactics, misrepresentations about use, failure to disclose safety issues and adverse effects, courting and seducing physicians, failing to warn about dangers and use of the website "Partners Against Pain." Plaintiffs claim Defendants' actions and inactions resulted in increase risks from, inappropriate prescriptions of, misuse of and abuse of the drug.
The Amended Complaint seeks to have this matter certified as a class action. However, before the Clay Circuit Court could rule on the class certification issue, Purdue filed a Notice of Removal with this Court on July 13, 2001, alleging federal question and diversity of citizenship jurisdiction.
Although Plaintiffs' memorandum in support of their motion refers to Kentucky Rule 23, this court interprets the Motion as if properly filed before this court under Rule 23 of the Federal Rules of civil Procedure.
III. LEGAL ANALYSIS
A. The Plaintiffs Cannot Meet The Requirements For Class Certification.
Rule 23 of the Federal Rules of Civil Procedure sets forth the requirements for the maintainability of a class action. Under this rule, a party seeking class certification bears the burden of establishing that certification is proper. In re American Medical Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996); 7A C. Wright, A. Miller, M. Kane, Federal Practice and Procedure § 1759 (2d ed. 1986). However, a class action may not be approved simply "by virtue of its designation as such in the pleadings." American Medical Sys., at 1079.
Nor may a prospective class representative simply rely upon "mere repetition of the language of Rule 23(a)" to support his or her motion.Id. Instead, an adequate basis for each element of the rule must be pled and supported by the facts. This may require consideration of evidence on the maintainability of the class action if the facts set forth in the pleadings are insufficient. Id., quoting Weathers v. Peters Realty Corp., 499 F.2d 1197, 1200 (6th Cir. 1974) (citation omitted).
This inquiry requires a "rigorous analysis" to determine whether the prerequisites of Rule 23 are met. American Medical Sys., at 1078, 1079,citing General Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982). In conducting this analysis, the Court has broad discretion in determining whether to certify the class, as long as it adheres to the guidelines set forth in the rule. American Medical Sys., at 1079, citing Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981). The Court, however, should not assess the likelihood of the case on the merits in determining maintainability.Weathers, at 1201.
If the pleadings merely repeat the language of the rule or the factual allegations are inadequate to support the maintainability of a class action, then this court must deny Plaintiffs' motion.
1. Rule 23 Requires The Existence of a "Class."
Although not specifically mentioned in Rule 23, an essential prerequisite of a class action is that there must be a "class," which is to be determined based on the circumstances of each case. Wright Miller, § 1760. If the Court determines that a class exists for Rule 23 purposes, it must then examine whether the proposed representatives are members of the class they seek to represent. Id., at § 1761.
In Sprague v. General Motors Corp., 133 F.3d 388, 397 (6th Cir. 1998)cert. denied, 524 U.S. 923 (1998) the Court indicated that no class that fails to satisfy all four of the prerequisites of Rule 23(a) may be certified and that each class meeting those prerequisites must also pass at least one of the tests set forth in Rule 23(b). Stout v. J.D. Byrider, 228 F.3d 709, 717 (6th Cir. 2000), cert. denied, 531 U.S. 1148 (2001) (The Court indicated that the four explicit elements of Rule 23(a) needed to be met without mentioning if any additional, implicit elements were necessary).
However, other Circuits have held that other inherent elements must be shown in addition to the four explicit requirements. See Chaffee v. Johnson, 229 F. Supp. 445, 448 (S.D.Miss. 1964), aff'd, 352 F.2d 514 (5th Cir. 1965), cert. den. 384 U.S. 956 (1966) ("The members of a class must be capable of definite identification as being either in or out of it.")Roman v. ESB, Inc., 550 F.2d 1343, 1348 (4th Cir. 1976) (In order to determine whether a class action is proper, the district court must determine whether a class exists and, if so, what it includes. Although not specifically mentioned in the rule, the definition of the class is an essential prerequisite to maintaining a class action).
When examining whether a class exists, if "[t]he vague and indefinite description of the purported class depends upon the state of mind of a particular individual, rendering it difficult, if not impossible, to determine whether any given individual is within or without the alleged class," certification is not appropriate. Chaffee, 229 F. Supp. at 448;Simer v. Rios, 661 F.2d 655 (7th Cir. 1981). In Koen v. Long, 302 F. Supp. 1383 (E.D.Mo. 1969), plaintiffs brought suit against an "alleged scheme, plan or conspiracy" to deprive the proposed class of certain civil rights. Id., at 1386. The deprivations in question involved intimidation and harassment of the class by public officers. The court held that "where membership in the class is dependent upon both the state of mind of the individual involved and upon the state of mind of the particular defendant involved" the class may not be maintained. Id., at 1388.
Purdue's Response cites numerous cases following this rule.
In Newton v. Southern Wood Piedmont Corp., 163 F.R.D. 625 (S.D.Ga. 1995), aff'd, 95 F.3d 59 (11th Cir. 1996), plaintiffs sought a class certification based on medical problems from alleged chemical exposure. In order to ascertain the identity of the putative class, a medical diagnosis of each individual in the proposed class was required. Certifying the class would require an individualized inquiry into the existence of the medical condition of each member of the class.
The Newton Court recognized that the types of questions which must be answered in order to ascertain the class were highly individualized in nature and called for "plaintiff-specific information." Id. These areas of investigation included: the duration of exposure, dosage of the chemical each plaintiff received, method of exposure to the chemical and individual health and medical histories. As a result, the class definition necessitated "subjective medical conclusion[s]" and was vague. Id. The court held that this was an improper basis for certifying a class action and that the class was "fundamentally defective because it is not based upon any operative facts or specific incident in the case."Id.
Similarly, in American Medical Sys., 75 F.3d 1069, a case also involving similar mass-tort, medical product liability issues, the court addressed the issue of individual plaintiff specific information. The court overturned the District Court's certification of a class action because "each plaintiff ha[d] a unique complaint, and each receive[d] different information and assurances from his treating physician." Id., at 1085. Accordingly, the Court found that the class could not be maintained.
Here, Plaintiffs assert that the class should properly be defined as "all persons who have been harmed by the addictive nature of OxyContin." (Amended Complaint, p. 4) In their motion, they cite no facts to support this averment but, instead, they only state, "[t]he class is not ambiguously defined, because those persons who have been harmed due to the addictive nature of OxyContin are easily ascertainable." (Plfs' Motion, p. 8)
Defendants respond that the Plaintiffs have not sufficiently defined the class and that the class is unclear because the Plaintiffs did not define "harmed." They argue that a number of questions essential to the inquiry of whether a class exists are unanswered. Purdue points to questions such as: "Is physical injury required? Does emotional suffering suffice? Does experiencing anguish as a result of learning about someone else's misfortune qualify as `harm' to oneself? How does one conclude that someone is addicted?" (Purdue Response, p. 36)
Abbott raises substantially similar questions, such as: "Is the `addictive nature' the same as `addictive' or is it somehow different? How is `addictive nature' measured, and by what standard?" (Abbott Response, p. 9) Together, the Defendants assert that certification would require a determination of individualized and subjective facts that would be time consuming and exorbitantly expensive, which is counter-productive to the purpose of a class action.
Purdue also submits the affidavits of Drs. O'Brien and Granacher addressing these issues. In relevant part, Dr. O'Brien concludes that:
there are no criteria that may be applied, without individual clinical evaluation, to identify reliably a class of people who are addicted to OxyContin ® or to identify reliably a class of people harmed by their addiction to OxyContin ® because diagnosing addiction inherently requires an individual clinical evaluation involving clinical judgment. It also follows that a determination of person, such as relatives, who may have been secondarily harmed by the addiction of others to OxyContin ® cannot begin to be made without the initial individual clinical evaluations of those claiming addictions.
(emphasis added) (Purdue Response, Ex. A, p. 16-17)
Likewise, Dr. Granacher states that "[i]t is impossible to determine whether any of the class of representatives are addicted to OxyContin ® from the" proposed class definition. (Purdue Response, Ex. B, p. 14) He indicates that an individual determination must be made to distinguish those suffering from normal physiologic adaptation, those with a pseudo-addiction, and those who are truly addicted. He concludes that this examination "can only be made after the performance of a detailed physical examination of the patient and comprehensive histories of the patient and his or her family have been obtained by competent medical professionals trained to perform such assessments." Id. The Court finds these affidavits to be both relevant and persuasive.
In their Reply, Plaintiffs offer no rebuttal to those affidavits. Instead, they argue that this "Court may limit the putative class to those plaintiffs who received OxyContin though written prescriptions" in Kentucky or in any other way it deems appropriate. (Plfs' Reply, p. 14)
Plaintiffs' request is similar to those in Koen, supra, Newton, supra, and American Medical Sys., supra. They seek a class certification based on medical problems and damages resulting from alleged addiction to OxyContin ®. This inquiry requires the Court to answer a number of questions that are highly individualized in nature and call for plaintiff-specific information, such as assurances each plaintiff received from his treating physician, individual medical histories, dosage and length of prescriptions and method of taking the drug. The Court would need to determine a number of highly subjective facts that are dependent on the state of mind of particular individuals to ascertain whether any given individual is within or outside the alleged class. As a result, this definition is vague and calls for subjective medical conclusions.
The present case is unsuitable for certification because each putative class member's state of mind requires litigating each individual case. Even limiting the class to those individuals who received the drug by prescription in Kentucky does not remedy the large number of issues that still remain. Accordingly, the proposed class of "all persons who have been harmed due to the addictive nature of OxyContin" is so highly diverse and so difficult to ascertain that it is not adequately defined. Thus, this Court concludes that an initial, inherent element of class certification fails for lack of a definable, identifiable class.
Because the Court finds that the alleged class is not sufficiently identifiable, it is unnecessary to determine whether the named Plaintiffs fit within the vague definition.
2. The Plaintiffs Cannot Meet The Prerequisites of a Class Action.
Rule 23(a) governs the prerequisites for certifying a class action. Specifically, it provides:
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common 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.
a. The Plaintiffs Have Not Shown That Joinder Is Impracticable.
Subsection (a)(1) of the rule is often referred to as the numerosity requirement. Wright Miller, § 1762. The analysis here turns on whether joinder of all alleged class members would be impracticable. "Impracticability" depends upon all the circumstances of the case. Cash v. Swifton Land Corp., 434 F.2d 569, 571 (6th Cir. 1970). No specific minimum number of alleged class members is necessary. Instead, the Court's inquiry is whether Plaintiffs have sufficiently demonstrated the existence of the numbers of persons they purport to represent. Young v. Trailwood Lakes, Inc., 61 F.R.D. 666 (W.D.Ky. 1974); Marcial v. Coronet Ins. Co., 880 F.2d 954, 957 (7th Cir. 1989). In making this determination the Court may consider "reasonable inferences drawn from facts before it." Senter v. General Motors Corp., 532 F.2d 511, 523 (6th Cir. 1976),cert. denied, 429 U.S. 870 (1976).
However, the Court cannot rely on speculations or conclusory allegations of the movant. The representatives must "show some evidence of or reasonably estimate the number of class members." Schwartz v. Upper Deck, 183 F.R.D. 672 (S.D.Ca. 1999); Sims v. Parke Davis Co., 334 F. Supp. 774, 781 (D.C.Mich. 1971) ("Speculation cannot be used to establish that a prospective class is so numerous as to make joinder impracticable.")
In Sims v. Parke Davis Co., the Court refused to certify the proposed class where the plaintiffs failed to allege the approximate size of the class. Their pleadings only made simple allegations of numerosity, such as `there are numerous other people who *** have the same cause of action ***' and `*** whose number makes it impracticable to have them joined as plaintiffs.' Id., at 781. Plaintiffs' estimate was not supported by any evidence, rather, the only information given to that court regarding size was a comment that the class "would probably contain between 70 and 200 persons." Id., at 781.
In the present action, Plaintiffs' allegations are of little use in determining the number of potential class members. While they provide annual sales figures for the drug, sales volume alone will not justify a finding of numerosity. Schwartz, supra at 681. Plaintiffs also allege that "there are more than ten thousand . . . class members in the Commonwealth of Kentucky alone" (Amended Complaint, p. 13) which can be determined by through the KASPAR system. (Plfs' Reply, p. 11) They attempt to support this claim by stating that "[w]hile it indeed remains to be determined exactly how many class members there are, it is undisputed that Defendants have manufactured and marketed OxyContin for approximately five years now and that thousands of person in Kentucky have been prescribed the drug." (Plfs' Reply, p. 11)
While KASPAR can be used to determine the thousands of people who received OxyContin ® by prescription, the number of prescriptions is not at issue in this case. The issue here concerns the number of people allegedly harmed by an addiction to OxyContin ® brought about by improper actions or inactions of the Defendants.
One of Plaintiffs' claims is that the addictive nature of OxyContin ® has caused wrongful deaths. However, there is no evidence or averment as to the size of this possible sub-class. Although this Court may make reasonable judgments from the facts before it, the evidence presented by Plaintiffs comes far from meeting the numerosity requirement of Rule 23(a)(1). Instead, their argument amount only to a simple averment of numerosity and comes close to merely repeating the language of the rule.
Thus, like the allegations in Sims, the pleadings and evidence before this Court fail to allege the approximate class size, and Plaintiffs fail to demonstrate that the class is so numerous that joinder of all members is impracticable.
b. The Plaintiffs Have Not Established That There Are Common Questions of Law or of Fact For Class Certification Purposes.
Under subsection (a)(2), there must be questions of law or fact common to the class before certification is proper. Fed.R.Civ.P. 23(a)(2). While many courts have simply concluded that common questions exist without indicating the reasons for this determination, the Sixth Circuit has held this requirement "is qualitative rather than quantitative, that is, there need only be a single issue common to all members of the class." American Medical Sys., supra at 1080; 1 Herbert B. Newberg Alba Conte,Newberg on Class Actions, § 3.10, at 3-50 (3d ed. 1992). However, the existence of any common question is insufficient because "at a sufficiently abstract level of generalization, almost any set of claims can be said to display commonality. What [the court looks] for is a common issue the resolution of which will advance the litigation."Sprague, supra, at 397.
In American Medical Sys., supra, plaintiffs alleged "[t]he circumstances of this case establish that the common liability questions are appropriate for a trial in the class setting. The primary focus of the litigation will be Defendant's conduct when it researched, designed, marketed, manufactured and sold the [medical product in question]."American Medical Sys., at 1080, n. 11. Plaintiffs averred eighteen specific questions in the amended complaint, Id., at 1080, n. 10, yet that Court found that the questions of fact and of law proposed by plaintiffs were not necessarily of the quality required to satisfy commonality. Specifically, it found that:
proofs as to strict liability, negligence, failure to warn, breach of express and implied warranties will also very from plaintiff to plaintiff because complications with [the medical product] may be due to a variety of factors, including surgical error, improper use of the device, anatomical incompatibility, infection, device malfunction, or psychological problems. Further, each plaintiff's [physician] would be required to testify to determine what oral and written statements were made to the physician, and what he in turn told the patient, as well as to issues of reliance, causation and damages.Id., at 1081. Thus, the Court held that "[i]n the absence of more specific allegations and/or proof of commonality of any factual or legal claims" certification was not proper. Id.
The allegations before this Court are analogous to those in American Medical Sys. Here, the questions Plaintiffs allege in support of their allegations are not only of the same type alleged by plaintiffs inAmerican Medical Sys., they mirror them almost verbatim. Plaintiffs allege common questions of law and of fact predominate over any individual questions:
[e]ach member of the class brings claims for, among others, negligence, failure to warn, manufacturing defect, negligence per se, conspiracy, breach of warranty and fraud, and [statutory claims]. These claims arise solely from the adverse effects of the prescription drug . . . where Defendants made misrepresentations or failed to adequately and sufficiently warn of the appropriate uses, risks and safety of OxyContin.
(Plfs' Motion, p. 9-10) These claims will also vary from Plaintiff to Plaintiff because, like those in Am. Med. Sys., any harm suffered by Plaintiffs may be due to a number of factors, including, dosage, use and manner of administration of the drug, individual and family medical and psychological histories, level of personal awareness regarding the purported risks and medical reasons for use.
Further, each Plaintiff will be required to testify to issues of reliance, causation and damages. These factors establish that Plaintiffs' claims lack commonality. Because each of the claims depends upon questions of fact and of law peculiar to each class member, the Court finds that there is not sufficient commonality for a class to be certified.
c. The Claims of The Representatives Are Not Typical of the Class.
Subsection (a)(3) of Rule 23 requires that the claims of the representatives must be typical of the claims of the class. Rule 23(a)(3); Wright Miller, § 1764. In conducting this analysis, the Court must determine "whether a sufficient relationship exists between the injury to the named plaintiff and the conduct affecting the class, so that the court may properly attribute a collective nature to the challenged conduct." Newberg and Conte, § 3.13, at 3-75, 76. "The premise may be simply stated: as goes the claim of the named plaintiff, so go the claims of the class." Sprague, supra, at 399.
The representatives' interests must be aligned with those of the putative class and the pursuit of their claims must also advance the interest of the class. American Medical Sys., supra, at 1082. The representatives' claims need not always involve the same facts or law, provided there is a common element of fact or law. Senter, supra, at 525. However, limitations do exist, "particularly when the claimed injury is tied to a complex course of conduct engaged in by the defendants over a long period of time, as opposed to a single act to which all class members have been exposed equally." Clay v. American Tobacco Co., 188 F.R.D. 483, 492 (S.D.Ill. 1999), quoting Insolia v. Phillip Morris Inc., 186 F.R.D. 535, 543-44 (W.D.Wis. 1998).
In Stout, supra, the Sixth Circuit examined the typicality element involving numerous claims of fraudulent conduct against a used car dealership. The plaintiffs relied on their understanding of the purchase and of the transaction terms. However, because not all buyers purchased cars under the same agreement, the Court identified discrepancies between the plaintiffs and the putative members. The discrepancies included:
the type of car, the degree of repairs necessitated, the response to those repairs, the purpose for which the car was purchased, the individual circumstances and transactions surrounding each purchase including each class member's understanding of the terms and condition of their purchase agreements, and the extent of the injury suffered.Id., at 717. As a result of the complex course of conduct engaged in by the defendants over a long period of time, the court upheld the District Court's determination that the Plaintiffs' claims were not typical of class.
Similarly, in American Medical Sys., supra, the Sixth Circuit noted that the plaintiffs' claims in the underlying action were also atypical. In reaching its decision, the Court noted that each plaintiff used a different model of the medical device in question and each experienced a distinct problem. As a result, it appeared that the defendants engaged in a complex course of conduct over a long period of time as well.
Here, Plaintiffs allege the claims involved are typical of the claims of the class members. Plaintiffs aver that there is no express conflict and that the claims are virtually identical. They argue this will advance the interest of the class. Further, they assert that any varying facts specific to a member are irrelevant based on the Defendants' alleged unlawful conduct.
However, Defendants argue that "the factual position of the named representatives is `markedly different from' and `not characteristic of that of other class members' in numerous respects including: applicable law, circumstances of drug misuse, application of limitations, and innumerable other individualized questions." (Abbott Response, at 18) They argue that establishing the facts required to prove the claims of the named Plaintiffs will not prove the required elements of the claims of those of the other members in the class because of the varying, individual circumstances surrounding use of OxyContin ®. Specifically, they express concern that possible class members may have illegally used or misused the drug and their claims would not align with the named Plaintiffs' claims. Plaintiffs reply that this Court may modify the class to include only those persons who initially obtained the drug by prescription.
The Court concludes that, similar to the claims in Stout, supra, discrepancies between the Plaintiffs' claims and those of the putative members exist, including: the dosage of the drug prescribed, the duration of taking the drug, the response each individual experienced from the drug, the purpose for which the drug was prescribed, the individual circumstances and transactions surrounding each prescription, including each class member's understanding of the drug's effects and the extent of the harm caused.
As in American Medical Sys., supra, numerous types of prescriptions were written and each Plaintiff might have experienced a distinct harm as a result. Additionally, those who initially obtained OxyContin by prescription could have used it in an abusive or illegal manner. Thus, like American Medical Sys. and Stout, Plaintiffs' allegations against Defendants are based on a complex course of conduct engaged in over a long period of time. Because of these factors, the claims of the Plaintiffs are not typical of those of the putative members.
d. The Court Cannot Conclude That The Plaintiffs Will Fairly and Adequately Protect the Interests of the Class.
Under Rule 23(a)(4) a class may be maintained only if "the representative parties will fairly and adequately protect the interests of the class." The Sixth Circuit adopted a two-part analysis for this requirement. Senter, supra, at 524-25, following Gonzales v. Cassidy, 474 F.2d 67 (5th Cir. 1973). This test requires that the representatives (1) have common interests with unnamed members of the class and (2) will vigorously prosecute the interests of the class though qualified counsel. Senter, at 524-35; see also Cross v. National Trust Life Ins. Co., 553 F.2d 1026 (6th Cir. 1977) (The rule tests "whether there is any antagonism between the interests of the plaintiffs and other members of the class they seek to represent" and "the experience of the counsel for the plaintiffs.") Additionally, the second element requires that attorneys for the class must be qualified to conduct the proposed litigation. Senter, at 1083. These determinations are questions of fact that depend on the circumstances of each case. Further, the party seeking certification has the burden of proof. See Wright and Miller, § 1765.
In what is often termed "coextensiveness of interest" (Wright Miller, § 1769), "the key determinants underlying [this element] relate to the issues of conflicts of interest, common interest, and common injury." Rutherford v. City of Cleveland, 137 F.3d 906, 909 (6th Cir. 1998); see also East Tex. Motor Freight Sys. v. Rodriquez, 431 U.S. 395 403 (1977) (citation omitted) ("A class representative must be part of the class and `possess the same interest and suffer the same injury as the class members.'") This means that the representatives must share common objectives, legal and factual positions. Alexander v. Aero Lodge No. 735, Int'l Ass'n of Machinists Aerospace Workers, AFL-CIO, 565 F.2d 1364 (6th Cir. 1977), cert. denied 436 U.S. 946 (1978); see also Clay, 188 F.R.D. 483 (S.D.Ill. 1999) (Where the proposed class includes current and former smokers, the representatives, "all of whom are current smokers, cannot possibly share the same interests with the members of the class who are former smokers.")
Here, Plaintiffs assert claims which are:
typical, if not identical, of other class members. No conflict exists between the interests of Plaintiffs and the interests of the class members given that claims of all parties arise from an identical fact pattern, are based upon identical theories of law, and the options for relief sought are the same for all class members.
(Plfs' Motion, at 12) Defendants argue that Plaintiffs do not have common interests because they "have suffered different injuries than or have unique claims from those of other members of the class." (Purdue's Response, at 33) They assert that each proposed member's experience with the drug vary from individual to individual, necessitating proof of different facts. Additionally, they argue that the Plaintiffs' claims are barred by one or more affirmative defenses, all of which negate commonality.
Plaintiffs reply with simply averments and fail to include any factual allegations to support their position. They argue that,
[t]he fact of the matter is that the named Plaintiffs are able and will adequately represent the class members. Simply put, the named Plaintiffs represent those class members who are currently being harmed by the adverse effects of OxyContin, and each of the name plaintiffs initially received a prescription for the drug.
(Plfs' Reply, p. 13)
Again, Plaintiffs' allegation amount to a simple averment that mirrors the language of the rule and of the case law supporting it. The proposed class contains members who obtained OxyContin ® illegally, use the drug illegally and take different prescription strengths. Notwithstanding the defenses available to these different factual situations, at a minimum, this amounts to different injuries and interests among Plaintiffs. Accordingly, Plaintiffs have not sufficiently shown a commonality of interest with the proposed members.
Based on the foregoing, the Court finds it unnecessary to determine whether the representatives vigorously prosecute the interests of the class or whether the representatives counsel are qualified to represent the class.
III. CONCLUSION
In summary, Plaintiffs have failed to meet their burden of establishing the inherent elements and the subsection (a) prerequisites of a class action under Rule 23. Given this failure, this Court does not need to engage in any Rule 23(b) analysis. Accordingly, class certification is inappropriate and this Court denies Plaintiffs' Motion for Class Certification.
For the reasons set forth herein, it is hereby ORDERED that Plaintiffs' Motion to Class Certification is DENIED.