State court rejects propulsid class; plaintiff lawyers unbowed.

A New Jersey court recently refused to certify as a class action consumer fraud and products liability claims representing millions of plaintiffs against Johnson & Johnson Co., manufacturer of the gastric reflux drug Propulsid. The plaintiffs allege that the drug, known generically as cisapride, caused users to suffer damaging heart arrhythmia and, in some cases, death. (Cartiglia v. Johnson & Johnson Co., No. MID-L-2754-01 (N.J., Middlesex County Super. Ct. Apr. 24, 2002).)

The court found that the fraud claims were flawed because the plaintiffs had failed to show "ascertainable loss," and it held that the products liability claims involved too many individual issues to let the plaintiffs proceed as a national class.

Defendants hailed the decision as a victory, but plaintiff lawyers said the triumph may be short-lived for two reasons: The decision has no precedential value and is being appealed, and the issue of class certification should soon be decided in federal multidistrict litigation (MDL) pending in Louisiana.

"If a national class is certified in the MDL, all state court class actions would be enjoined from proceeding," said Barry Hill, a Wheeling, West Virginia, plaintiff lawyer who chairs ATLA's Propulsid Litigation Group.

The crux of the problem with the New Jersey products claims, Superior Court Judge Maria Corodemus said, was that consumers received multiple warnings about the dangers of Propulsid in the years before it was removed from the market in 2000. She noted that the warning label was changed several times, twice in 1995, once in 1997, again in 1998, and for the last time in 2000.

Given this, the more than 30 million adults and children who took the drug for gastric reflux, or heartburn, from the early 1990s until it was withdrawn from the market in 2000, would have to be divided into at least seven subclasses.

"Whereas the class members who initially took Propulsid when there were no warnings might not have been adequately warned, this is not to say that those who took it in 2000 with numerous additional warnings were not," Corodemus wrote.

The court noted that "the putative class representatives also do not meet the predominance requirement [for class certification] because the drug was prescribed for so many different ailments under assorted circumstances. Not only might there be at least seven different groups of plaintiffs ... based on the number of times the warnings changed, [but] it is also clear that the putative class representatives each have different circumstances that require their cases to be examined individually."

For example, three of the named plaintiffs took Propulsid along with other medications, the court noted, and one of these medications was not supposed to be taken with Propulsid. Although the defendant's conduct was at issue, not the plaintiffs', Corodemus said, the members of the class "have too many individual situations to ignore."

Sorting potential plaintiffs into sub-classes of various claims--including inadequate warning, design defect, and lack of efficacy--would require "tedious individual investigation," the judge wrote. "Prescription drugs are not meant to work the same for everyone. This court cannot simply certify a class with this many variables. The plaintiffs have not drawn the class lines clearly enough."

The New Jersey Propulsid case is just one of about 16,000 currently pending nationwide, Hill said, including the federal MDL. All allege products liability against Johnson & Johnson Co., and about one-third include medical negligence claims against prescribing doctors. (Major Litigation Takes Aim at Propulsid, TRIAL, Mar. 2001, at 12.)

Hill, one of several lawyers who represent plaintiffs in the Louisiana MDL, could not predict when the federal judge overseeing it would rule on the certification request. But he noted that because the federal claims were filed later than those in New Jersey, they were stronger cases. "A lot of scientific information was developed after the New Jersey claims were filed [in late 2001]. We submitted our claims with a great deal more scientific support," Hill said.