News and Events


Defeat of Nationwide Class in Baycol Litigation Shows Importance of Detailed Evidence to Oppose Certification

A medication was the subject of thousands of cases filed in state and federal courts throughout the United States alleging strict liability, negligence, breach of warranty and medical monitoring.  After consolidation of the federal court cases pursuant to the multidistrict litigation statute, plaintiffs sought certification of nationwide classes of those injured by the drug and a separate class of those not injured, but who should be monitored for future injury.  The court denied certification of both classes because individual considerations -- such as the dosage given to a plaintiff, the effects of that dosage, a plaintiff’s medical conditions, each plaintiff’s access to the complained of advertising, and whether a plaintiff was injured -- predominated over any common questions of law or fact.  These considerations also meant the named plaintiffs had failed to show their claims were typical of the class.  Also relevant to the denial of the medical monitoring class was that there was no uniformity of view as to the kind of monitoring that could be effective.  Again, considerations unique to each plaintiff predominated.  The decision highlighted how important it is in opposing certification for defendants to develop detailed evidence of the kinds of evidence that would be used to litigate the claims.