Opinion
Civil Action No. 00-3513 Section "C" (5)
January 28, 2002
ORDER REASONS
This is a products liability case. Plaintiffs Shirley Kemp, Shawanda Lawrence, and Felicia Thomas (collectively Plaintiffs) are suing Defendants on behalf of themselves and all other similarly situated persons under Federal Rule of Civil Procedure 23, alleging that Defendants violated the Louisiana Products Liability Act, La. R.S. § 9:2800.51, et seq. ("LPLA"). More specifically, Plaintiffs contend that they suffered health problems after using Metabolife International, Inc.'s ("Metabolife") diet product Metabolife 356 and their injuries stem from Metabolife's failure to adequately warn Plaintiffs of the dangers of ephedrine, an ingredient found in the product. Before the Court is Metabolife's Motion to Strike, or for Judgment on the Pleadings on, Plaintiffs' Request for Class Certification. See Rec. Doc. 47. For the reasons that follow, the Motion is hereby GRANTED.
Because the Court resolves the Motion on the merits, it need not address Metabolife's contention that Plaintiffs' class allegations should be stricken because Plaintiffs have failed to timely move for class certification under Local Rule 23.1B. See Rec. Doc. 47 at 1-2.
BACKGROUND
Metabolife manufactures and distributes the appetite suppressant Metabolife 356. According to Metabolife's website, the product contains a combination of eighteen different "ingredients," including ephedrine, and thirteen "other ingredients." www.metabolife.com/products/356 detail.htm. Plaintiffs contend that Metabolife markets Metabolife 356 as safe, fast and effective appetite suppressants. See Rec. Doc. 65 at ¶ 12. But, Plaintiffs claim, Metabolife has inadequately tested the products for safety. See id. Moreover, Plaintiffs assert, ephedrine is a potent central nervous system stimulant, which can cause health problems including nervousness, dizziness, tremors, blood pressure and heart rate changes, headache, gastrointestinal distress, chest pain, myocardial infarction, stroke, seizure, psychosis, brain damage, and death. See id. at ¶ 13. Metabolife's website warns Texas consumers, "Metabolife 356® has ephedrine group alkaloids in the form of herbal extracts and may cause serious adverse health effects. Read the label and follow directions." www.metabolife.com/products/356 detail.htm. No such warning, however, is directed to Louisiana consumers.
Plaintiffs, who purchased and ingested Metabolife 356, claim that Metabolife 356 is unreasonably dangerous and that Metabolife thus violated the LPLA because it inadequately warned Louisiana consumers of the adverse health effects of the ephedrine as found in the product. See Rec. Doc. 65. (Plaintiffs alternatively allege that Louisiana consumers were inadequately warned as to the dangers of inclusion of ephedrine and caffeine in Metabolife 356. See id. at ¶ 49. Plaintiffs allege that combinations of ephedrine and caffeine have been shown to create side effects "substantially greater than those from the consumption of either compound alone or of a placebo." Id. at ¶ 24.) Plaintiffs charge Metabolife further with failing to adequately disclose to consumers that the use of Metabolife 356 had not been clinically tested or FDA approved. See id. at ¶ 45.
Moreover, Plaintiffs allege, Defendant Mike Ellis is the alter ego of Metabolife. See id. at ¶ 5B. Plaintiffs contend that Ellis also is a manufacturer of Metabolife 356. See Id. at ¶ 6. Alternatively, Plaintiffs allege, to the extent Ellis is not a manufacturer, he conspired with Metabolife and is aware of, and willfully approved, all of Metabolife's actions. See id. at ¶ 7. Accordingly, Plaintiffs allege, Ellis is answerable in solido for all damages caused by actions alleged in the second amended petition. See Id.
The proposed class consists of "all persons in the State of Louisiana who purchased and/or consumed the appetite suppressant Metabolife 356 sold by Metabolife during the period from February 4, 1994, up to the date of trial and all persons who possess consortium, wrongful death and/or survival actions arising out of injury caused by Metabolife 356." Id. at ¶ 8. The suit seeks (1) class-wide adjudication of liability pursuant to the LPLA and (2) damages (a) for the return of all of plaintiffs' purchase monies and (b) otherwise available under the LPLA. See Id. at ¶ 17.
ANALYSIS Standard of review
In reviewing a motion for judgment on the pleadings under Rule 12(c), the Court must base its decision solely on the pleadings. The court in Park Center, Inc. v. Champion International Corp., 804 F. Supp. 294, 301 (S.D. Ala. 1992), summarized the standard of review succinctly:
On a motion for judgment on the pleadings, Federal Rule of Civil Procedure 12(c) requires the Court to view the pleading in the light most favorable to, and to draw all reasonable inferences in favor of, the nonmovant. The Court may grant judgment on the pleadings if it appears beyond doubt that the nonmovant can plead or prove no set of facts . . . which would entitle him to relief.
This Court adopts the Park Center standard and applies it to the claims presented in this case. See also Bellizan v. Easy Money of La., Inc., 2001 U.S. Dist. LEXIS 1731, at *2 (E.D. La. Feb. 12, 2001); Youngblood v. Bender, 2000 U.S. Dist. LEXIS 11376, at *3 (E.D. La. 2000).
Need-or lack thereof-for an evidentiary hearing on class certification question
Rule 23(c)(1) requires that the court determine, "[a]s soon as practicable" after an action brought on behalf of a class is commenced, whether the suit is to be certified as a class action. See Castano v. Am. Tobacco Co., 84 F.3d 734, 741 (5th Cir. 1996). To certify a class action, the plaintiff(s) must meet all of the requirements of Rule 23(a) as well as one of the requirements of Rule 23(b). See Rule 23; Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470, 483 (5th Cir. 1982)). Here, as is clear from the second amended complaint, Plaintiffs seek class certification under Rule 23(b)(3). See Rec. Doc. 65 at ¶¶ 50-64. This rule requires, in pertinent part, that "questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that the class action is superior to other methods for a fair and efficient adjudication of the controversy." Smith v. Texaco, Inc., 263 F.3d 394, 408-09 (5th Cir. 2001).
Rule 23(a) requires that:
(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 district court has wide discretion in deciding whether to certify a class. Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir. 1999). Analyzing whether to certify a class "generally involves considerations that are `enmeshed in the factual and legal issues comprising the plaintiffs cause of action.'" Coopers Lybrand v. Livesay, 437 U.S. 463, 469 n. 12, 98 S.Ct. 2454, 2458 n. 12, 57 L.Ed.2d 351 (1978) (quoting Mercantile Nat'l. Bank at Dallas v. Langdeau, 371 U.S. 555, 558, 83 S.Ct. 520, 522, 9 L.Ed.2d 523 (1963)). Nevertheless, an evidentiary hearing on the class certification issue is not required. Bradford v. Sears, Roebuck Co., 673 F.2d 792, 795 (5th Cir. 1982). "Sometimes the issues are plain enough from the pleadings . . . "to render an evidentiary hearing unnecessary. Castano, 84 F.3d at 744 n. 17 (quoting Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 2372, 72 L.Ed.2d 740 (1982)). Here, as discussed in greater in detail below, the Court is convinced that the issues determining whether a class can be certified are clear enough such that an evidentiary hearing is unnecessary.
Predominance under Rule 23(b)(3)
The Court pauses here to note that Plaintiffs appear to raise the possibility that class certification is appropriate in part because they have satisfied the requirements of Rule 23(b)(1)(A). That Rule states that, as long as other class action certification requirements in Rule 23(a) are satisfied,
An action may be maintained as a class action if . . . the prosecution of separate actions by or against individual members of the class would create a risk of inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class[.]
Certification of a class pursuant to this Rule, however, is unavailable where, as here, Plaintiffs are seeking damages and not different and incompatible affirmative relief. See McBirney v. Autrey, 106 F.R.D. 240, 245 (N.D. Tex. 1985); see also Allison v. Citgo Petroleum Corp., 151 F.3d 402, 421 n. 16 (5th Cir. 1998).
The Court thus addresses the merits of the motion. First, under Rule 23(b)(3), common issues must predominate over individual issues.
Product liability class actions generally do not meet the predominance requirement. See, e.g., In re Fibreboard Corp., 893 F.2d 706 (5th Cir. 1990); In re N. Dist. of California, Dalkon Shield IUD Prods. Liab. Litig., 693 F.2d 847 (9th Cir. 1982); Hon. Martin L.C. Feldman, Class Actions in the Gulf South Symposium: Predominance and Products Liability Class Actions: An Idea Whose Time Has Passed? 74 Tul. L. Rev. 1621 (2000). In these kinds of actions, causation, damages, and defenses, for instance, must be determined individually. See Fibreboard, 893 F.2d at 711-12. Under the LPLA, the knowledge and expertise of the particular user is relevant to whether the warning was adequate. See § 9:2800.57B(2); In re M/V DANIELLE BOUCHARD, 164 F. Supp.2d 794, 800 (2001). Another individual issue is the degree to which each Plaintiff was exposed to the product. Here, just as in Fibreboard, see 893 F.2d at 712, Plaintiffs were exposed to varying degrees of the product at issue. Moreover, just as in Fibreboard, see id., the alleged use of the product allegedly lead to different harms. Here, the alleged injuries include a seizure, loss of companionship, breast leakage, bacterial lining of the stomach, high blood pressure, diabetes and diabetic complications, headaches, irregular heartbeat, gas, miscarriage, chest pains, and heart valve thickening. See Rec. Doc. 65 at ¶ 4. Additionally, some of the diseases may have been caused by factors other than use of the product, and then to varying degrees. See Kampen v. Am. Isuzu Motors, 157 F.3d 306, 315-316 (5th Cir. 1998), Finally, each Plaintiff alleges different kinds of damages and in varying severity.
Plaintiffs attempt to satisfy the predominance requirement by arguing that a number of factors potentially or actually at issue are capable of common determination, including (I) whether Metabolife 356 possessed a characteristic that may cause damage and (2) whether Defendants used reasonable care to provide an adequate warning of the characteristic and its danger to users. In identifying these common liability sub-issues, Plaintiffs apparently hope to take advantage of Rule 23(c)(4), which allows class certification of some issues with individual treatment of others. See Smith v. Texaco, Inc., 263 F.3d 394, 409 (5th Cir. 2001). However, the Fifth Circuit explains that, first, "the cause of action, as a whole, must satisfy rule 23(b)(3)'s predominance requirement. . . . Once that requirement is met, rule 23(c)(4) is available to sever the common issues for a class trial." Id. The predominance requirement cannot be satisfied by seeking to repeatedly split the claims pursuant to Rule 23(c)(4). See id. "To read the rule . . . as allowing a court to pare issues repeatedly until predominance is achieved, would obliterate Rule 23(b)(3)'s predominance requirement, resulting in automatic certification in every case in which any common issue exists, a result the drafters of the rule could not have intended." Id. The common liability sub-issues identified by Plaintiffs notwithstanding, liability as to Plaintiffs is, overall, a highly individuated issue, as are questions of damages and causation. Thus, individual issues predominate over those common to the proposed class. Accordingly, class certification is improper as to Plaintiffs' claims.
See Smith v. Brown Williamson Tobacco Corp., 174 F.R.D. 90, 96 (W.D. Mo. 1997). Finding that whether cigarettes cause disease or are addicting in general did little to advance the litigation in that case, the Smith court held, "Liability will not turn on whether cigarettes are generally capable of causing disease: liability will depend upon whether cigarettes caused a particular plaintiffs disease. The latter inquiry will turn in [sic] numerous individual factory, rendering the causation factor inappropriate for common disposition." Id.
Plaintiffs nevertheless alternatively attempt to show predominance by arguing, in effect, that their claims contain more commonalities than in several other actions in which class certification has been denied. See, e.g., Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (predominance requirement not satisfied where plaintiffs sued multiple asbestos manufacturers for injuries resulting from multiple products throughout the United States and its territories under different jurisdictions' laws); Castano, 84 F.3d 734 (same result where proposed class of all nicotine-dependent persons in the United States alleged nine causes of action under various state's laws against several tobacco companies); In re Am. Med. Sys., 75 F.3d 1069 (5th Cir. 1996) (same result where proposed national class sued multiple defendants under several different theories for injuries from multiple products). In the instant action, Plaintiffs have pleaded one cause of action based on one product under one state's law against one manufacturer. See Rec. Doc. 65. Thus, Plaintiffs conclude, because Plaintiffs' claims contain more commonalities than do those in, for example, Amehem, Castano, and American Medical Systems, class certification is proper. See Rec. Doc. 80 at 3-7.
The Court disagrees. That Plaintiffs' case contains fewer issues does not necessarily mean that those issues predominate. The Fibreboard court based its non-predominance determination on the plaintiffs suffering from different diseases, exposure to asbestos in various manners and to varying degrees, and plaintiffs' differing lifestyles. See 893 F.2d at 712. Here, as stated above, all the same concerns are at issue. The only difference is that in Fibreboard, multiple manufacturers produced the product in question, see id. at 707, whereas here, only one manufacturer has been sued, see Rec. Doc. 65. The Fifth Circuit, however, did not find that common issues did not predominate based on the number of manufacturers sued in Fibreboard. Thus, the presence of only one manufacturer does not, without more, favor Plaintiffs here on the predominance inquiry.
In their quest for certification, Plaintiffs also seek to rely on a case recently certified as a class action against Metabolife. See Gasperoni v. Metabolife, Int'l, Inc., No. 00-71255, 2000 U.S. Dist. LEXIS 20879 (E.D. Mich. 2000). Gasperoni involved claims of misrepresentation under Michigan's prohibition against common law fraud and under its Consumer Protection Act, M.C.L. § 445.901, et seq. See id. The case was certified solely on the issue of whether the label on the Metabolife product was materially-misleading when viewed as a whole. See id. at *14-22. The only relief sought was the return of the purchase price and that Metabolife be required to revise its labeling and advertising to include accurate warnings. Thus, no significant "individual" issues were involved. Here, unlike in Gasperoni, personal injuries are claimed, implicating numerous individual issues of causation, affirmative defenses and damages. Consequently, Gasperoni is inapposite.
Finally, to the extent that Plaintiffs seek conditional class certification, the Court also declines this request.
Conditional certification is not a means whereby the District Court can avoid deciding whether, at that time, the requirements of . . . Rule [23] have been substantially met. The purpose of conditional certification is to preserve the Court's power to revoke certification in those cases wherein the magnitude or complexity of the litigation may eventually reveal problems not theretofore apparent.Castano, 84 F.3d at 741 (internal quotations and citation deleted). The Court, however, is confident, as discussed above, that the requirements of class certification have not been met. Accordingly, conditional class certification is inappropriate here. CONCLUSION
Because Plaintiffs have failed to satisfy the first prong of Rule 23(b)(3)'s class certification requirements, the Court neither addresses 23(b)(3)'s other prong, whether a class action is a superior method of fair and efficient adjudication, or whether Plaintiffs satisfy the requirements of Rule 23(a).
Because Plaintiffs cannot establish the predominance of common issues under Rule 23(b)(3) necessary for class certification,
IT IS ORDERED that:
(1) Defendants' Motion to Strike Plaintiffs' Request for Class Certification is hereby DENIED, but
(2) Defendants' Motion for Judgment on the Pleadings on Plaintiffs' Request for Class Certification is hereby GRANTED.