United States District Court, C.D. California
JENNIFER L. SAAVEDRA, DR. MELISSA STRAFFORD, CAROL JACQUEZ, and DAVID MATTHEWS, on behalf of themselves and all other persons similarly situated, Plaintiffs,
ELI LILLY AND COMPANY, an Indiana corporation, Defendant
For Jennifer L Saavedra, an individual on behalf of herself and all other persons similarly situated, Plaintiff: Bijan Esfandiari, Baum Heldlund Aristel and Goldman PC, Los Angeles, CA; Gretchen Freeman Cappio, Michael D Woerner, Lynn L Sarko, PRO HAC VICE, Juli E Farris, Keller Rohrback LLP, Seattle, WA; Harris L Pogust, Terence Matthew Leckman, PRO HAC VICE, Pogust Braslow and Millrood LLC, Conshohocken, PA; Havila C Unrein, Keller Rohrback LLP, Santa Barbara, CA; Mark D Samson, PRO HAC VICE, Keller Rohrback PLC, Phoenix, AZ; Michael Lin Baum, Robert Brent Wisner, Baum Hedlund Aristei and Goldman PC, Los Angeles, CA; Samuel S Deskin, Deskin Law Firm PLC, Encino, CA.
For Dr Melissa Strafford, on behalf of themselves and all other persons similarly situated, Carol Jacquez, on behalf of themselves and all other persons similarly situated, David Matthews, Jr, on behalf of themselves and all other persons similarly situated, Plaintiffs: Bijan Esfandiari, Baum Heldlund Aristel and Goldman PC, Los Angeles, CA; Gretchen Freeman Cappio, Michael D Woerner, Lynn L Sarko, PRO HAC VICE, Juli E Farris, Keller Rohrback LLP, Seattle, WA; Harris L Pogust, PRO HAC VICE, Pogust Braslow and Millrood LLC, Conshohocken, PA; Havila C Unrein, Keller Rohrback LLP, Santa Barbara, CA; Mark D Samson, PRO HAC VICE, Keller Rohrback PLC, Phoenix, AZ; Michael Lin Baum, Robert Brent Wisner, Baum Hedlund Aristei and Goldman PC, Los Angeles, CA; Samuel S Deskin, Deskin Law Firm PLC, Encino, CA.
For Eli Lilly and Company, an Indiana corporation, Defendant: Clara J Shin, Covington and Burling LLP, San Francisco, CA; Colleen A Kelly, Mark H Lynch, Michael X Imbroscio, Phyllis A Jones, PRO HAC VICE, Covington and Burling LLP, Washington, DC.
ORDER DENYING PLAINTIFFS' MOTIONS FOR CLASS CERTIFICATION PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 23(b)(3) OR 23(c)(4) [73, 74]
STEPHEN V. WILSON, United States District Judge.
This is a putative class action arising from defendant Eli Lilly and Company's (" Lilly") alleged misrepresentations regarding its antidepressant, Cymbalta. Plaintiffs filed this action on October 31, 2012. In their corrected First Amended Complaint (" FAC"), Plaintiffs assert claims under four states' consumer protection laws. (Dkt. 44.)
Presently before the Court are Plaintiffs' alternative motions for class certification under Federal Rules of Civil Procedure 23(b)(3) and 23(c)(4). (Dkts. 73 & 74.) For the reasons discussed below, the Court DENIES both motions.
II. FACTUAL AND PROCEDURAL BACKGROUND
Lilly's antidepressant, Cymbalta, is available only by prescription. (Perahia Decl. ¶ 3.) Since the Food and Drug Administration approved Cymbalta in 2004, Cymbalta's United States Package Insert (called its " label") has included a warning about possible discontinuation symptoms. (Hoog Decl. ¶ ¶ 7, 10.) The warning states that withdrawal symptoms occurred " at a rate greater than or equal to 1% and at a significantly higher rate in duloxetine [Cymbalta's chemical name]-treated patients compared to those discontinuing from placebo." (Hoog Decl. ¶ 12.) This warning has undergone only minor revisions since 2004. (Hoog Decl. ¶ 10.) Plaintiffs Jennifer Saavedra, Melissa Strafford, Carol Jacquez, and David Matthews, Jr. (collectively, " Plaintiffs") claim that the risk of withdrawal symptoms following Cymbalta is in fact approximately 44%. (Corrected First Amended Complaint (" FAC") ¶ 30.) Plaintiffs thus claim that in marketing and advertising Cymbalta,  Lilly misrepresented the risk of experiencing withdrawal symptoms upon its discontinuation.
Plaintiffs filed their FAC on January 10, 2013. (Dkt. 44.) In their FAC, Plaintiffs assert claims under: (1) California's Consumer Legal Remedies Act (" CLRA"), Cal. Civ Code § § 1750, et seq.; (2) California's Unfair Competition Law (" UCL"), Cal. Bus. & Prof. Code § § 17200, et seq.; (3) California's False Advertising Law (" FAL"), Cal Bus. & Prof. Code § § 17500, et seq.; (4) Massachusetts's Consumer Protection Act, Mass. Gen. Laws Ch. 93A, § § 1, et seq.; (5) Missouri's Merchandising Practices Act (" MPA"), Mo. Rev. Stat. § § 407.010, et seq.; and (6) New York's Consumer Protection from Deceptive Acts and Practices Law, N.Y. Gen. Bus. Law § § 349, et seq.
On February 26, 2013, this Court granted Lilly's motion to dismiss Plaintiffs' claims for injunctive and declaratory relief for lack of standing. (Dkt 52.) The Court otherwise denied Lilly's motion to dismiss the complaint. (Id.)
On March 27, 2013, Lilly moved for summary judgment on the grounds that the learned intermediary doctrine barred relief and that the labels were not misleading to doctors. On June 13, 2013, the Court held that the learned intermediary doctrine applies to Plaintiffs' claims and that Plaintiffs were entitled to additional discovery before a motion for summary judgment would be heard. (Dkt. 72: Order, at 6.) The Court also directed Plaintiffs to move for class certification. (Id.) The Court directed the parties to assume for purposes of the motion that plaintiffs will prevail in showing that the warnings given to physicians were inadequate as alleged in the FAC. (Id. at 8.)
Plaintiffs now move to certify a class, including four subclasses, under Rule 23(b)(3). The class and subclasses are defined as:
All natural persons within the Commonwealth of Massachusetts and the States of Missouri, New York, and California who purchased and/or paid for Cymbalta manufactured, distributed, and/or marketed by Lilly from Cymbalta's August 2004 launch until the present, divided into the following four subclasses:
(1) A California UCL/FAL/CLRA class of consumers who purchased and/or paid for Cymbalta in California between August 2004 and the present;
(2) A Missouri Merchandising Practices Act class of consumers who purchased and/or paid for Cymbalta in Missouri between August 2004 and the present;
(3) A New York General Business Law § § 349-350 class of consumers who purchased and/or paid for Cymbalta in New York between August 2004 and the present;
(4) A Massachusetts General Law Chapter 93A class of consumers who purchased and/or paid for Cymbalta in Massachusetts between August 2004 and the present
(Dkt. 73: Ps' Mot. Class Cert. Pursuant to Rule 23(b)(3), at 2-3.) Plaintiffs also filed an alternative motion to certify a similarly defined issue class and subclasses under Rule 23(c)(4). (Dkt. 74.) Plaintiffs propose certifying this issue class with respect to " the particular issue of whether Lilly's omissions regarding Cymbalta were materially misleading under the state laws of Missouri, New York, Massachusetts, and California." (Dkt. 74: Ps' Mot. Class Cert. Pursuant to Rule 23(c)(4), at 3-4.)
III. PLAINTIFFS' MOTION FOR CLASS CERTIFICATION UNDER RULE 23(b)(3)
A. Legal Standard
A party seeking class certification must satisfy two requirements. See Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001), amended by 273 F.3d 1266 (9th Cir. 2001). First, the moving party must show that the proposed class meets four criteria: (1) the members of the proposed class must be so numerous that joinder of all claims would be impracticable (" numerosity"); (2) there must be questions of law and fact common to the class (" commonality"); (3) the claims or defenses of the representative parties must be typical of the claims or defenses of absent class members (" typicality"); and (4) the representative parties must fairly and adequately protect the interests of the class (" adequacy"). Fed.R.Civ.P. 23(a).
Second, the moving party must demonstrate that the class fulfills the conditions of at least one of the three subdivisions of Rule 23(b). " The party seeking certification bears the burden of showing that each of the four requirements of Rule 23(a) and at least one requirement of Rule 23(b) have been met." Zinser, 253 F.3d at 1186.
Plaintiffs assert that the class meets the requirements for Rule 23(b)(3). To qualify for certification under this subsection, a class must satisfy two conditions: (1) common questions of law or fact must " predominate over any questions affecting only individual members, " and (2) class resolution must be " superior to other available methods for the fair and efficient adjudication of the controversy." Fed.R.Civ.P. 23(b)(3). The predominance requirement is satisfied where common questions comprise a significant portion of the case and can be resolved for all class members in one adjudication. See In re ConAgra Foods, Inc., 302 F.R.D. 537, 2014 WL 4104405, at *29 (C.D. Cal. 2014). Rule 23(b)(3)'s predominance requirement also requires the moving party to show that " damages are capable of measurement on a classwide ...