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Krueger v. Wyeth

February 19, 2008

APRIL KRUEGER, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
WYETH, INC. F/K/A AMERICAN HOME PRODUCTS, A PENNSYLVANIA CORPORATION; WYETH PHARMACEUTICALS F/K/A WYETH-AYERST PHARMACEUTICALS, A PENNSYLVANIA CORPORATION; AND DOES 1 THROUGH 100, INCLUSIVE, DEFENDANT.



The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge

ORDER: DENYING PLAINTIFF'S MOTION FOR CLASS CERTIFICATION WITHOUT PREJUDICE

Presently before the Court are Plaintiff's motion to certify the class [Doc. No. 15], Defendant's Opposition [Doc. No. 29], and Plaintiff's Reply [Doc. No. 33.] For the following reasons, the Court DENIES Plaintiff's motion without prejudice.

BACKGROUND

In December 2003, Plaintiff April Krueger filed a products liability action against Wyeth and Wyeth Pharmaceuticals Inc. in the U.S. District Court for the Southern District of California. [Defs.' Motion at 4.] The case was transferred to the Eastern District of Arkansas (Judge William R. Wilson, Jr.) for pre-trial proceedings pursuant to 28 U.S.C. § 1407 as part of In re Prempro Prods. Liab. Litig., 230 F.R.D. 555 (E.D. Ark. 2005) (MDL-1507).*fn1 After transfer, the allegations of Ms. Krueger's complaint were merged with those of other class action complaints into a Master Class Action Complaint, which was filed January 7, 2004. The Master Class Action Complaint sought to certify a multi-state class action on behalf of women seeking consumer protection relief and medical monitoring. The putative class included women who purchased Wyeth's Hormone Replacement Therapy drugs ("HRT") to alleviate postmenopausal symptoms. Judge Wilson denied class certification, in part, because of the differences in state law governing the plaintiffs' causes of action. Plaintiff Krueger's case was then remanded back to this Court. [Id.]

Plaintiff now requests that this Court certify a Rule 23(b)(3) damages class that is defined as:

All California consumers who purchased Wyeth's Hormone Replacement Therapy products, Premarin, Prempro, and/or Premphase, between January 1995 and January 2003. [Pl.'s Motion at 4.] Plaintiff seeks two forms of relief for the class members:

First, Plaintiff seeks a refund of all purchase monies Class Members spent and disgorgement of profits Wyeth earned from HRT sales to Class Members as provided for by California's Unfair Competition Law (UCL), Business and Professions Code §§ 17200 et. seq.

Plaintiff Krueger also seeks damages, statutory damages, punitive damages and/or refunds of purchase monies Class Members spent for these products as provided for by California's Consumer Legal Remedies Act (CLRA), Civil Code §§ 1750 et. seq. [Id.] Defendants note that unlike Plaintiff's prior class definition, her current definition fails to exclude women seeking personal injury damages.

LEGAL STANDARD

Motions for class certification proceed under Rule 23(a) of the Federal Rules of Civil Procedure. Rule 23(a) provides four prerequisites to a class action: (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. Fed. R. Civ. P. 23(a).

A proposed class must also satisfy one of the subdivisions of Rule 23(b). To certify a class under Rule 23(b)(3), plaintiffs must demonstrate that: "the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Fed. R. Civ. P. 23(b)(3).

As the party seeking to certify a class, plaintiffs bear the burden of demonstrating that they satisfy each of the Rule 23 requirements. Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1187 (9th Cir. 2001); W. States Wholesale, Inc. v. Synthetic Indus., Inc., 206 F.R.D. 271, 274 (C.D. Cal. 2002). "In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met." Eisen v Carlisle & Jacquelin, 417 US 156, 178 (1974) (quoting Miller v Mackey Int'l., 452 F 2d 424 (5th Cir. 1971) (internal quotation marks omitted). However, the Court is "at liberty to consider evidence which goes to the requirements of Rule 23 even though the evidence may also relate to the underlying merits of the case." Hanon v Dataproducts Corp, 976 F 2d 497, 509 (9th Cir 1992).

ANALYSIS

I. The Class Cannot be Certified Because Ms. Krueger Cannot Adequately Protect the Interests of ...


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