Vioxx MDL: Nationwide Class Certification Denied

    By Brian Wolfman

    Judge Eldon Fallon of the U.S. District Court in New Orleans, who is presiding over the Multidistrict Litigation of thousands of Vioxx injury cases, has denied the plaintiffs' request for nationwide class certification.  The plaintiffs argued for nationwide certification on the ground that the substantive law of New Jersey, where the defendant is located, should be applied to all plaintiffs' claims no matter where the plaintiffs lived or ingested Vioxx.  Judge Fallon rejected that argument, holding that the plaintiffs' home states (that is, all 50 states) had a greater interest in the litigation than did New Jersey alone.  (Some consumer class actions have been certified nationally on the theory that the law of the defendant's home state applied to the claims of all plaintiffs.)  One might expect the plaintiffs to try to certify class actions on a state-by-state basis, but Judge Fallon indicated that there are obstacles to any class certification because factual and legal differences predominate over common questions.  Note that in light of the Class Action Fairness Act (CAFA), Vioxx class actions brought in state court only by citizens of the forum state will likely end up in federal court (unless the defendant is a citizen of the forum).  And, if those cases end up in federal court, they will almost certainly be MDL'd to Judge Fallon.

UPDATE:  A commenter has made a point that I should have mentioned in my original post.  There are pre-CAFA state court class actions, and they will not be removable to federal court (at least not under CAFA).  My point about the removability of Vioxx class actions under CAFA applies, of course, only to actions filed after CAFA's effective date.

Comments

[Ted]

There are several dozen pre-CAFA class actions pending in state court, so the plaintiffs will get dozens of chances to try for an illegitimate nationwide class in front of other judges who may not be as respectful of due process on this issue as Judge Fallon was.

If Merck were located in Michigan, I'd imagine you'd be furious if a judge held that an out-of-state plaintiff could only sue Merck under Michigan law. (That there are judges who will be willing to apply New Jersey law to a nationwide class provides a sound reason for why pharmaceutical corporations should make a point of relocating their jobs to states like Michigan that have more sensible pharmaceutical liability regimes.)

Of course, these problems only exist because Erie and Strawbridge undid the original Hamiltonian conception of the role of the federal judiciary, but I don't expect this to be completely corrected in my lifetime.

[Brian Wolfman]

Ted, you raise a good point about the pre-CAFA state court cases. I should have mentioned them.

I'm amused that you make assumptions about my thinking on these things. You don't know me. My view on CAFA is that some of the phenomena that its proponents complained of were legitimate concerns, and that some pre-CAFA class actions required to be litigated in state court should have been removable to federal court. I thought CAFA went too far, however. In any event, my statement about CAFA in my post was meant to be descriptive only.

As for the choice-of-law question, again, I have no idea why you would assume that my views regarding application of one state's law to citizens from all 50 states generally would depend on the particulars of that state's subtantive law. My own view is that in some tort cases it is problematic to apply just one state's law nationally, whether it be New Jersey law or Michigan law.

As for you last point, I don't think Strawbridge has anything to do with the Hamiltonian conception of the role of the federal courts. It's a mundane decision interpreting a statute. I think it's correct, but that's debatable. Strawbridge ended up having a large impact on late 20th century tort litigation, but no one could have known its potential impact at the time it was decided. If Congress doesn't like Strawbridge, it can overrule it, as it has in part in CAFA. Erie, I agree, is more fundamental. I think it is consistent with the constitution, but that's debatable too.

[Deepak Gupta]

Ted's predictions and assumptions about your views are repeated on this blog post as well: http://www.pointoflaw.com/archives/003230.php

There, he describes the above post--which, as far as I can tell, is purely descriptive--as presenting "a predictably opposing viewpoint on the class certification question." He must have been reading a different post. What Ted's predictions are based on and what viewpoint he's referring to are never made clear.

Reading between the lines, I get the sense that perhaps Ted expects anyone affiliated with Public Citizen to reflexively agree with the positions taken byclass action plaintiffs' lawyers. If so, that would wildly, demonstrably wrong. See, e.g., http://www.citizen.org/litigation/briefs/Class_Action/articles.cfm?ID=552

[Ted]

When Public Citizen appallingly publicly mischaracterizes CAFA as "a green light to market fraud and deception", you can forgive me for mistakenly assuming that that viewpoint was being reflected in a Public Citizen post on the effect of CAFA on Vioxx class certification issues.

I responded to Brian at length between 6 PM and Deepak's comment, apologizing for my apparently mistaken assumption but that comment seems to have been swallowed somewhere in the process--I may have forgotten to enter the verification code or included a hypertext link. My attempt to correct my Point of Law post was also bounced by the POL server last night unfortunately, and not corrected until now.