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In Re Yasmin and Yaz Drospirenone Marketing v. Bayer Corp.

May 4, 2011

IN RE YASMIN AND YAZ DROSPIRENONE MARKETING, SALES PRACTICES AND RELEVANT PRODUCTS LIABILITY LITIGATION DAVID R. HERNDON PLAISANCE
v.
BAYER CORP.,ET AL.,



The opinion of the court was delivered by: Herndon, Chief Judge:

This document relates to:

ORDER

I. Introduction

Now before the Court is defendants'*fn1 motion to strike or dismiss(Doc. 27), and memorandum in support thereof (Doc. 28),the class allegations in plaintiff's first amended complaint (Doc. 23). Plaintiff seeks certification of a Rule 23(b)(3) nationwide or statewide class of individuals who allegedly suffered injury*fn2 as a result of ingesting YAZ and/or Yasmin. In addition, in her first amended complaint, plaintiff identifies 26 putative "common issues," (doc. 23 ¶ 109), and alleges that certification under Rule 23(c)(4)(A) may be appropriate "with respect to [the 26 putative common issues] or [other common issues] to be developed in the course of the litigation." Id. ¶ 114.

Having considered the parties briefs and the relevant authority, the Court finds that individual issues of fact and law predominate precluding certification of any of the proposed classes. Accordingly, for the reasons discussed herein, the Court GRANTS defendants' motion (Doc. 27) and STRIKES the class allegations in plaintiff's first amended complaint.

II. BACKGROUND

A. Plaintiff

Plaintiff is a 44-year-old citizen of the State of Louisiana who was prescribed YAZ in May of 2006 by her physician, Dr. Eugenio C. Labadio (Doc. 23 ¶ 42, Doc. 32 § II). During the summer of 2006, plaintiff was hospitalized due to a deep vein thrombosis ("DVT") in her left leg (Doc. 32 p. 2). Plaintiff alleges that the DVT, as well as other adverse effects, were caused by her ingestion of YAZ (Doc. 23 ¶ 42) (alleging that plaintiff "purchased, used, and suffered adverse effects including, but not limited to a blood clot and deep vein thrombosis from ingesting YAZ®/Yasmin®"); (Doc. 23 ¶ 108) (asserting that plaintiff purchased and ingested YAZ/Yasmin and developed deep vein thrombosis).

B. First Amended Complaint

1. Putative Class Definitions

Plaintiff asserts that the action is brought on behalf of the "Personal Injury Class" defined initially as "all persons residing in the United States who purchased YAZ®/Yasmin®" (Doc. 23 ¶ 11). On several subsequent occasions, plaintiff sets forth additional paragraphs describing the putative class as including persons that have suffered from any and all possible YAZ or Yasmin-related injuries Id. ¶¶ 21, 88-95, 98-99.*fn3 In paragraph 105, of the complaint, however, plaintiff states that the putative nationwide class is limited to persons who suffered from DVT.*fn4 As an alternative to the putative nationwide class, plaintiff proposes certification of a statewide class (limited to persons who suffered from DVT); asking the Court to certify separate classes for the 50 states and the District of Columbia. Id. at ¶106.

For 49 of the states and the District of Columbia, the name of the statewide class representative is "Intentionally left blank." Id. ¶¶ 24-74. Plaintiff asserts that she can act as a surrogate representative of these classes, until plaintiffs who actually would be members of the statewide classes turn up:

Plaintiff Plaisance, as representative for the national class, acts as a surrogate for those state classes (defined above) for which there is yet a nominal class representative plaintiff, i.e., a headless class. By interlineation, plaintiff will cause to have substituted appropriate class representatives as their claims are filed and transferred to MDL 2100 pursuant to 28 U.S.C. § 1407. Id. ¶ 112.

Plaintiff also lists 26 putative "common issues," id. ¶ 109, and alleges that certification under Rule 23(c)(4)(A) may be appropriate "with respect to [the 26 putative common issues] or [other common issues] to be developed in the course of the litigation." Id. ¶ 114.

2. Asserted Claims

Plaintiff asserts claims for negligence, strict product liability, breach of express warranty, breach of implied warranty, fraudulent misrepresentation, fraudulent concealment, negligent misrepresentation, and fraud and deceit. Id. ΒΆΒΆ 117, 130, 155, 167, 179, 192, 205, 213, 299. With regard to damages, plaintiff ...


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