Davis v.
| Decision Date | 26 March 2003 |
| Docket Number | No. 2002-CA-0943.,No. 2002-CA-0944.,No. 2002-CA-0942.,2002-CA-0942.,2002-CA-0943.,2002-CA-0944. |
| Citation | 844 So.2d 242 |
| Parties | Terri DAVIS, Charlene Unbehagen, Rachel Flanagan and Joseph Battle, Individually and on Behalf of His Minor Daughter, Victoria Wilson v. AMERICAN HOME PRODUCTS CORPORATION, A Delaware Corporation d/b/a Wyeth-Ayerst Laboratories. Gaynell Ely and Stacy Smith v. American Home Products Corporation d/b/a Wyeth Ayerst Corporation. Akiva Holmes and Angelina Sever, Individually and on Behalf of all other Similarly Situated Plaintiffs, v. Wyeth-Ayerst Laboratories, A Division of American Home Products Corporation; State of Louisiana, Through the Office of Public Health, Family Planning Division and Through the Department of Social Services, Office of Family Support. |
| Court | Court of Appeal of Louisiana — District of US |
John P. Coale, Jr., Coale, Cooley, Lietz, Mclnerny & Broadus, Washington, DC, Darleen M. Jacobs, Jacobs & Sarrat, Robert G. Harvey, Sr., Harvey, Jacobson & Glago, Terrill W. Boykin, Rodney, Bordenave, Boykin & Ehret, Stephen B. Murray, Linda S. Harang, Murray Law Firm, New Orleans, LA, Richard J. Arsenault, Neblett, Beard & Arsenault, Alexandria, LA, J. Robert Ates, Ates & Associates, A PLC, Daniel E. Becnel, Jr., Becnel, Landry & Becnel, Reserve, LA, Calvin C. Fayard, Jr., Fayard & Honeycutt, Denham Springs, LA, T. Allen USRY, USRY, Weeks & USRY, Allan Berger, Berger & Forstall, New Orleans, LA, Bruce C. Dean, Gauthier, Downing, Labarre, Beiser & Dean, Metairie, LA, Leonard L. Levenson, Weigand, Levenson & Costa, George J.G. Roux, New Orleans, LA, for Plaintiffs/Appellees.
F. Lane Heard, III, Williams & Connolly, LLP Washington, DC, Henri Wolbrette, III, Kathleen A. Manning, McGlinchey Stafford, PLLC, New Orleans, LA, for Defendant/Appellant, Wyeth.
(Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge DENNIS R. BAGNERIS, SR., and Judge DAVID S. GORBATY).
In this consolidated case, the plaintiffs requested the certification of a class action, claiming strict liability for the allegedly defective product, the Norplant implant contraceptive device, manufactured by American Home Products Corporation d/b/a Wyeth Ayerst Corporation ("Wyeth"). The plaintiffs also named the State of Louisiana as a defendant. Wyeth, appeals the trial court's October 1, 2001 judgment that granted the plaintiffs' motion for class certification and provided the definition of the class. We affirm.
The Norplant implant, a prescription drug, was approved by the Food and Drug Administration in 1990. The implant, consisting of six flexible thin capsules, contains levonorgestrel, a hormone used in oral contraceptives. The capsules are inserted below the female's skin in the upper arm and provide effective contraception for five years. The implant is a "time released" medication that releases a higher dose of levonorgestrel at the outset than it does at the end of its five-year life.
The defendant notes that the present three cases in this matter were consolidated suits filed in 1994 and 1995 that assert product liability claims against the manufacturer, Wyeth, based on the allegation that Norplant is defectively designed and caused injuries to users of the product.1 The State of Louisiana was also named as a defendant.
The plaintiffs filed motions seeking class certification in these cases in 1995 in civil district court in Orleans Parish. In August 1996, the trial court ordered case management governing discovery on certification. At the end of 1996, the trial court issued an amended order that provided a deadline for the designation of experts to be called at the class certification hearing. The trial court extended the deadline for review of the documents and conducting depositions.
In June 2000, the trial court declined to rule on Wyeth's motion to strike the plaintiffs' experts prior to the class certification hearing. In March 2001, the trial court ordered that all evidence on class certification should be submitted by deposition, affidavits and exhibits. In April 2001, the plaintiffs substituted new class representatives and redefined the proposed class limited to 15 side effects. Wyeth filed its opposition to class certification, including the affidavits of the plaintiffs' experts.
After the July 26, 2001 hearing on class certification, on October 1, 2001, the trial court issued its judgment that granted the plaintiffs' motion to certify the class, and provided the definition of the class.
The trial court determined that the certified class is defined as:
All women who are or were residents of the State of Louisiana and who have or had the Norplant contraceptive device, and who, as a result of having the Norplant device, claim to be suffering with or claim to have suffered with at least one or more of the following adverse effects:
1. Changes or irregularities in menstrual bleeding, which may include any of the following: (a) an increased number of bleeding days; (b) prolonged bleeding; (c) spotting; (d) amenorrhea (no bleeding at all); (e) irregular onsets of bleeding; (f) frequent bleeding onsets; and/or (g) scanty bleeding
2. Pain or itching at or near the implant site
3. Infection at the implant site
4. Removal difficulties (which may include any of the following: severe pain; general anesthesia required; more than one surgical procedure required; removal procedure lasted more than 1 hour; scarring on the skin at the implant site)
5. Headaches
6. Nervousness
7. Nausea
8. Dizziness
9. Adnexal enlargement (swelling of tissue near the implant site)
10. Dermatitis (painful skin inflammation)
11. Acne (inflammatory, pus-containing skin eruption)
12. Change of appetite
13. Mastalgia (breast pain)
14. Weight gain
15. Hirsuitism, Hypertrichosis (excessive body and facial hair in a masculine pattern), and/or scalp-hair loss
In addition to suffering with or having suffered with one or more of the above-listed adverse effects, a class member must also belong to at least one of the following three groups:
A. Having been surgically implanted with the Norplant device at a medical facility, clinic, or physician's office in the State of Louisiana.
B. Having had the Norplant device surgically removed at a medical facility, clinic or office in the State of Louisiana.
C. Were [sic] a resident of the State of Louisiana during the time that the Norplant device was implanted in your body.
The trial court named five plaintiffs as representatives of the certified class and found that the Plaintiffs' Committee was appointed and confirmed as Class Counsel.
In its Reasons for Judgment, the trial court stated that it was inclined to deny the State's exception of no cause of action at that time, and defer until after discovery was completed prior to trial. On October 30, 2001, the trial court issued supplemental reasons for judgment that included the exclusion of Wyeth's expert affidavits as "hearsay." Wyeth's appeal followed.
On appeal, Wyeth contends that the trial court erred in certifying the class based on the following claims:
(1) The plaintiffs offered no reliable scientific evidence connecting the alleged design defect with the alleged injuries;
(2) The class definition is defective because it does not match the alleged design defect;
(3) The individual issues will predominate over the common issue;
(4) Utilizing Bellwether trials is the best method to resolve the plaintiffs' claims; and
(5) The design defect cannot be a common issue for prescription drugs as a matter of Louisiana law.
The judgment certifying the class in this consolidated action is appealable. Eastin v. Entergy Corp., 97-1094 (La.App. 5 Cir. 4/15/98), 710 So.2d 835. At the time that the present consolidated suits were filed in 1995, La. C.C.P. arts. 591 and 592 provided that the basic requirements of a class action included:
(1) A class so numerous that joinder is impracticable;
(2) The joinder of parties who are members of the class and who are able to prove adequate representation for absent members; and
(3) A "common" character among the rights of the representatives of the class and the absent class members.2
See Andry v. Murphy Oil, U.S.A., Inc., 97-0793-97-0800 (La.App. 4 Cir. 4/1/98), 710 So.2d 1126, writ denied, 98-1158 (La.6/19/98), 720 So.2d 1213, writ denied 98-1178 (La.6/19/98), 720 So.2d 1214, and writ not considered, 98-1204 (La.6/19/98), 719 So.2d 473.
Under Louisiana law, a class action may be certified only if the numerosity, adequacy of representation, and commonality requirements are present. Billieson v. City of New Orleans, 98-1232, p. 9 (La.App. 4 Cir. 3/3/99), 729 So.2d 146, 154. The burden of proving the existence of all three elements falls on the party seeking to maintain the class action. Id.
A trial court has great discretion in deciding whether to certify a class, and its decision will not be overturned absent manifest error. Adams v. CSX Railroads, 92-1077 (La.App. 4 Cir. 2/26/93), 615 So.2d 476. Any errors to be made in deciding class action issues should be in favor of and not against the maintenance of the class action, because a class certification order is subject to modification if later developments during the course of the trial so require. McCastle v. Rollins Environmental Services of Louisiana, Inc., 456 So.2d 612 (La.1984).
The purpose and intent of a class action procedure is to adjudicate and obtain res judicata effect on all common issues applicable not only to the class representatives who bring the action, but to all other others who are similarly situated, provided they are given adequate notice of the pending class action and do not timely exercise their option of exclusion. Doerr v. Mobil Oil Corp., 2001-0775, p. 4 (La.App. 4 Cir. 2/27/02), 811 So.2d 1135, 1141, writ denied, 2002-0920 (La.5/31/02), 817 So.2d 105, and ...
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