Drug and Device Blog
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Dechert LLP
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What's In Them For Us?
Tuesday, June 21, 2011
The Supreme Court decided the climate change case, American Electric Power Co. v.
Connecticut, No. 10–174, slip op. (U.S. June 20, 2011), and the class action case, Wal-Mart
Stores, Inc. v. Dukes, No. 10–277, slip op. (U.S. June 20, 2011), yesterday. We can’t hope to
compete with the deluge of general comment on these two behemoths (nor would we be
particularly competent to do so), so we’ll focus on what, if anything, we’ve found in these
decisions that’s relevant to prescription medical product liability litigation.
Wal-Mart v. Dukes
First Dukes – initially because it was released a few minutes before AEP, and ultimately
because there’s more there there (apologies to Oakland) for us.
As everyone who cares to know already knows, Dukes was (before yesterday) a gigantic
employment discrimination case. As a substantive matter, there’s not a whole lot of overlap
between Dukes and what we do here. Everybody knew that the Dukes class action was so
huge and polyglot that its certification had a target on its back. Indeed, not a single justice was
willing to uphold the Ninth Circuit’s decision that there was a certifiable class. But while part of
Dukes (Part III, to be exact) was unanimous, another part (Part II) is only 5-4, and the Part II
split was the usual “liberal/conservative” one with Kennedy siding with the Court’s right wing.
Interestingly, the 5-4 part of the opinion was decided on commonality grounds. Previously,
that prong of Rule 23(a) had been sort of a “gimme” in class action litigation. Most courts had
held commonality satisfied if any plausible “common” issue existed, no matter how many
individualized issues existed nor how weighty they were.
Well, no longer – and this is a ruling applicable to all class actions, including those involving
prescription medical products. Commonality now has some teeth. If you don’t believe us,
check out the dissent. See Dukes, dissenting slip op. at 8 (the majority “elevates the (a)(2)
inquiry so that it is no longer easily satisfied”). Right on. Simply “reciting” a few common
