Eighth Circuit says no to W.Va. class action

John O'Brien Jan. 5, 2010, 1:23pm


ST. LOUIS (Legal Newsline) - A three-judge panel of federal appellate judges will not allow a class action against Bayer Corp. to proceed in a state court in West Virginia.

After a federal court in Minnesota had denied certification of a West Virginia class led by George McCollins in a multi-district litigation proceeding in 2008, a pair of West Virginians filed a state court action that Bayer wanted stopped.

The Minnesota federal court granted the injunction, and the U.S. Court of Appeals for the 8th Circuit affirmed Tuesday. The lawsuits involve Bayer's prescription cholesterol lowering medication Baycol, which was taken off the market in 2001 after being linked to 31 deaths.

"Bayer has demonstrated success on the merits by showing that respondents cannot relitigate the legal conclusions in the McCollins order," the opinion says.

"Respondents argue that because their individual claims for damages are so small, as a practical matter they cannot litigate them without class status. They have no absolute right to litigate their claims as a class, however, only a right, preserved by the district court's narrowly tailored injunction, to litigate their own claims."

The issue started in 2001 when McCollins and two other West Virginians filed a class action in Cabell County Circuit Court. The case was removed to the MDL court, and by 2008 McCollins was the only member remaining from West Virginia.

"He had not experienced the side effect that led to Baycol's withdrawal from the market; undisputed record evidence showed that he had physically benefitted from the drug," the opinion says.

"Rather than suing for physical damages, he sought refunds for economic loss caused by the defendants' breach of warranties and violation of the West Virginia Consumer Credit and Protection Act."

A class seeking a nationwide refund was denied certification, as the court determined that plaintiffs must show that they suffered an injury or no benefit from the drug. McCollins' class was also denied certification.

"Holding that under the WVCCPA, McCollins would need to 'demonstrate Baycol was something other than what he bargained for' and that McCollins could not meet this burden since Baycol in fact lowered his cholesterol and resulted in no side effects, the court also granted summary judgment to
the defendants on his individual claims," the opinion says.

Kevin Smith and Shirley Sperlazza sought to certify a class in West Virginia, but Bayer asked the federal court to enjoin them from doing so.

Bayer called them "absent putative class members" from McCollins' proposed class.

"(T)he district court concluded that Baycol plaintiffs cannot state a claim under the WVCCPA without proof of harm or injury," the opinion says.

"Economic loss alone is insufficient. Certification under the state rule would undermine this conclusion of substantive state law properly made by the district court."

Judges Duane Benton, Lavenski Smith and Diana Murphy decided the case.

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.

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