www.morganlewis.com 1 © 2013 Morgan, Lewis & Bockius LLP
Recent Trends in Class Action and Aggregate
Litigation in the Life Sciences Industry
December 2013
www.morganlewis.com 2 © 2013 Morgan, Lewis & Bockius LLP
Introduction
For the last several years, the life sciences industry has been fertile ground for class action and aggregate
litigation. Developments in this area have driven several trends, including state consumer fraud claims, securities
class actions, antitrust class actions, and aggregate litigation brought by private healthcare insurers and state
attorneys general. These recent trends have been driven, in part, by legislative and doctrinal developments. For
example, in 2005—based on legislative findings of abuse in class action practice in state courts—Congress
enacted the Class Action Fairness Act (CAFA), permitting defendants to remove to federal court putative class
actions that previously may have been subject to less stringent standards in state court. In Standard Fire
Insurance Co. v. Knowles,1 the U.S. Supreme Court held that a plaintiff’s stipulation that he would not accept
more than $5 million in damages could not be used to avoid CAFA’s amount in controversy requirement. In other
words, a class representative may not agree to seek less money to try to keep a case in state court.
Recent U.S. Supreme Court decisions have also significantly shaped class action practice. The Supreme Court’s
decision in Wal-Mart Stores, Inc. v. Dukes2 established that claims for individual money damages may be certified
under Federal Rule of Civil Procedure (FRCP) 23(b)(2) in only limited circumstances, and the Court’s decision
also announced a more restrictive view of the meaning of a “common question” under FRCP 23(a). Most recently,
in Comcast Corp. v. Behrend,3 the Court held that plaintiffs seeking class certification in antitrust cases must tie
their theory of harm and damages to their liability theory, and, in appropriate circumstances, individual questions
of damages can predominate over liability issues common to the class.
These developments have likely played a role in shaping the kinds of class actions that companies in the life
sciences industry are seeing today. For example, personal injury class actions and other kinds of mass torts are
now largely viewed as inappropriate for class treatment and often must confront motions to strike the class claims
from the complaint at the outset of the case. Claims requiring plaintiffs to prove reliance on alleged conduct also
face significant obstacles to class certification. After the Dukes decision, in particular, these obstacles seem to
have resulted in an increase in consumer fraud actions brought by individuals, healthcare insurers, and state
attorneys general. The recent developments also may explain the increase in proposed class actions in the
securities and antitrust arenas. These trends as well as some considerations for minimizing risk in such litigation
are discussed in further detail below.
Class Action Litigation Trends
Products Liability Claims
Individualized questions of causation and damages have driven the vast majority of courts to refuse class action
treatment in products liability actions in the pharmaceutical and medical device arenas.4 In response to these
developments, plaintiffs bringing personal injury claims have attempted to create multidistrict litigation
proceedings and serial litigation to “aggregate” claims of individual plaintiffs in lieu of a class action. In short,
1. 133 S. Ct. 1345 (2013).
2. 131 S. Ct. 2541 (2011).
3. 133 S. Ct. 1426 (2013).
4. See, e.g., In re Am. Med. Sys., Inc., 75 F.3d 1069, 1084–85 (6th Cir. 1996) (vacating certification of national class in implant products
liability litigation due to predominance of individual issues); In re Prempro Prods. Liab. Litig., 230 F.R.D. 555, 567 (E.D. Ark. 2005) (“As in
many cases before them, Plaintiffs have attempted to frame the ‘predominant’ issues broadly to compensate for variations in the class
members’ claims. But they suffer the same fate. ‘[I]ndividual issues abound and are magnified by the necessity of applying diverse state laws,’
making certification under 23(b)(3) inappropriate.”); Zehel-Miller v. AstraZeneca Pharm., LP, 223 F.R.D. 659, 663 (M.D. Fla. 2004) (observing
that certification of personal injury class arising from prescription medicine “would be indisputably inappropriate, since individual issues would
overwhelm any common questions”); In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 208 F.R.D. 625, 632 (W.D. Wash. 2002) (“An
assessment of specific causation—in this case, whether PPA caused, may cause, or caused a fear of injury to these individuals—thus,
necessarily dissolves into a myriad of individualized causation inquiries.”); In re Rezulin Prods. Liab. Litig., 210 F.R.D. 61, 65–66 (S.D.N.Y.
2002) (“It . . . is not surprising that all relevant Court of Appeals and the bulk of relevant district court decisions have rejected class certification
in products liability cases.”).
