Jessica Karmasek Dec. 14, 2015, 1:52pm


ATLANTA (Legal Newsline) - Last week, a federal judge declined to remand a lawsuit filed over allegedly defective birth control pills to a Georgia state court.

The decision by Judge Steve C. Jones of the U.S. District Court for the Northern District of Georgia, Atlanta Division, came a month after he denied class certification of the lawsuit.

The proposed class action was originally filed by plaintiff Lauren Betancourt in Cobb County State Court in September 2011. The case was then removed to the federal court in Atlanta as a putative class action.

Betancourt and fellow plaintiff Angela Shepherd filed a third amended complaint against defendants Endo Pharmaceuticals Inc., Endo Pharmaceuticals Holdings Inc., Vintage Pharmaceuticals LLC and Patheon Inc. in May 2012.

Betancourt and Shepherd alleged the defendants “designed, manufactured, packaged, sold, and distributed birth control pills” that were “defectively and dangerously designed, manufactured, packaged, sold, and distributed.”

In particular, the plaintiffs alleged the pills they purchased -- recalled in 2011 -- were packaged “such that select blisters found inside the pill box were rotated 180 degrees within the card, reversing the weekly tablet orientation.”

As a result of the packaging error, the daily regimen for the pills left women “without adequate contraception and at risk for unwanted pregnancy,” the plaintiffs alleged.

The parties engaged in mediation to try to settle the case, but were unsuccessful.

Eventually, they engaged in discovery on the class issues, and the plaintiffs filed a motion for class certification.

At the same time, the plaintiffs also moved before the U.S. Judicial Panel on Multidistrict Litigation for centralization of the case.

However, the panel declined to centralize the cases because it found that “individualized facts -- particularly relating to whether each plaintiff received an improperly packaged Qualitest birth control product and whether she became pregnant as a result of taking the pills in the wrong order -- will predominate over the common factual issues alleged by plaintiffs.”

The defendants in September 2011 issued a nationwide recall of eight different oral contraceptive products packaged by Patheon for Qualitest, a company that distributes pills to distributors and pharmacies.

The recall was initiated when a pharmacist in Iowa returned three blister packs of Cyclafem 7/7/7 because one of the packs had been packaged upside down, obscuring the lot number and expiration date.

The Iowa package is the only known defective package received by a consumer. And of the 507,966 blister packs that were returned in the recall, only 53 were improperly packaged in the reverse order, according to the federal court.

“Plaintiffs have not proffered evidence to show that the blister packs they bought and consumed were improperly manufactured -- or offered a plan for how potential class members could demonstrate that their products were defectively packaged,” Jones wrote in his Nov. 4 order denying certification.

“Neither named Plaintiff here retained the packaging from their pills and they offer no information as to whether consumers generally retain this material.”

In addition to the two named plaintiffs, class counsel claimed to represent 117 women, 113 of whom became pregnant, 94 of whom carried the babies to term, 17 women who did not carry the babies to term and four who did not become pregnant.

The plaintiffs proposed a nationwide class with four subclasses.

The class would have included “all persons within the United States of America, who, within the applicable limitations period, purchased and/or ingested the defectively designed, manufactured, packaged, sold, and distributed birth control pills with the trademark names Cyclafem 1/35, Cyclafem 7/7/7, Emoquette, Gildess FE 1.5/30, Gildess FE 1/20, Orsythia, Previfem, and Tri-Previfem.”

Subclass A would have included “class members as defined above, those persons who ingested none of the birth control pills and/or ingested the birth control pills and experienced no significant physical symptoms.”

Subclass B would have included “class members as defined above, those persons who experienced significant physical symptoms.

Subclass C would have included “class members as defined above, those persons who became pregnant, and the pregnancy was not carried to term.”

Subclass D would have included “class members as defined above, those persons who became pregnant; and, the pregnancy resulted in the live birth of a baby.”

The defendants argued the members of the proposed class and subclasses are not “ascertainable” because there is no way of knowing which consumers purchased or digested birth control pills that had been improperly packaged.

Jones agreed, noting that the court has “numerous concerns” with the manner in which the plaintiffs pled their class certification issues.

“As an initial matter, Plaintiffs have not proffered any means of identifying class members. Defendants’ records show only products sold to distributors and retailers, but not to individuals,” the judge wrote. “Potential plaintiffs are unlikely to have retained sales receipts because of the small amount of money involved in the purchase. Thus, the only means of identifying purchasers would be through self-identification affidavits.”

But some courts have held that self-identification is improper. Some even have gone so far as to describe it as a potential due process issue, Jones noted.

“Even if self-identification were an acceptable means of determining the class, Plaintiffs have not proffered any plan for how to address issues of ascertainability beyond contending that Plaintiffs could submit affidavits that they purchased these birth control pills,” he wrote.

Moreover, the judge explained, reimbursement was handled on a pharmacist-by-pharmacist basis, depending on what state law required.

Thus, membership for Subclass A would require inquiry to the pharmacist who provided the pills to the consumer to see whether that pharmacist allowed reimbursement requests and whether the individual consumer followed through on the process.

“Even if this information could be obtained, it still would only identify consumers who had been sold ‘recalled’ products,” Jones wrote. “Significantly, the class definition, proposed by Plaintiffs’ themselves, requires the consumer to be have been provided ‘defective’ pills.

“Plaintiffs miss this important element of the proposed class when they assert that it only requires pharmacy records to identify potential members of the class.”

Six days after Jones issued his order, Betancourt and Shepherd filed a motion to remand their lawsuit to Cobb County State Court.

They argued in their Nov. 10 motion that since the federal court denied their motion for class certification, federal jurisdiction no longer exists.

But Jones, in his Dec. 7 order, pointed out that the case was originally filed in state court and removed to federal court on the basis of diversity jurisdiction under the Class Action Fairness Act.

“Thus, this case falls into the ‘species’ of subject matter jurisdiction known as ‘removal jurisdiction,’” the judge wrote. “In ‘removal jurisdiction’ cases, subsequent events do not divest the court of jurisdiction.”

Jones pointed to the U.S. Supreme Court, which has noted that “removal cases raise forum-manipulation concerns that simply do not exist when it is the plaintiff who chooses the federal forum and then pleads away jurisdiction through amendment.”

Also, Jones noted, the U.S. Court of Appeals for the Eleventh Circuit has held that in such removal jurisdiction cases an order denying class certification is a “post-removal event” that does not alter jurisdiction.

“Thus, the Court finds that it retains jurisdiction over this matter despite the fact that the Court denied Plaintiffs’ motion for class certification,” the judge concluded.

Jones also denied as moot a motion for leave to file sur-reply.

James Beck, an attorney at the Philadelphia office of Reed Smith who handles complex personal injury and product liability litigation, wrote in a recent blog post that the pleaded facts were “overreaching.”

Beck, in pointing to reports that a number of the plaintiffs have jumped ship after the federal court’s denial of class certification and have become litigation “tourists” in Philadelphia, argued that the plaintiffs and their counsel were “blatantly abusing” Rule 23 of the Federal Rules of Civil Procedure, which governs the procedure and conduct of class action lawsuits brought in federal courts.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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