Opinion
CASE NO. 3:09-md-2087-BTM(KSC)
06-28-2012
IN RE HYDROXYCUT MARKETING AND SALES PRACTICE LITIGATION
ORDER RE PLAINTIFFS'
BELLWETHER SELECTIONS
[Doc. No. 1350]
Before the Court is the parties Joint Motion for Ruling on Plaintiffs' Bellwether Selections, along with exhibits and declarations by counsel in support of the parties' respective positions. [Doc. Nos. 1350, 1351.] Pursuant to the Joint Bellwether Plan approved by the Court and filed on March 19, 2012, the parties each selected certain plaintiffs to proceed to trial as test cases. In the parties' Joint Motion, defendants seek an order from the Court disqualifying plaintiffs Mario Moraga and Flor Mendoza from proceeding to trial as test cases in the bellwether program.
Defendants argue plaintiffs' selection of Moraga and Mendoza violates Section IV (A)(4) of the Joint Bellwether Plan, because both of these plaintiffs claim they consumed more than one type of Hydroxycut product. As a result, defendants argue the claims of these plaintiffs are not representative enough to provide reliable information for the other cases filed in this Multi-District Litigation ("MDL"). Defendants seek an order precluding Moraga and Mendoza from participating in the bellwether program. For the reasons outlined below, the Court finds defendants' request for an order precluding plaintiffs Moraga and Mendoza from participating in the bellwether program must be GRANTED in part and DENIED in part.
Background
On February 24, 2012, the parties submitted a Proposed Joint Bellwether Plan for the Court's consideration. At this time, the parties also agreed to submit letter briefs on disputed sections of the proposed plan. [Doc. No. 1080.] On February 29, 2012, defendants submitted a letter brief addressing several issues, including the necessity of including the "product consumption limitation" shown at Sections IV(A)(4) and IV(A)(9) of the Proposed Joint Bellwether Plan in order to prevent complex causation issues. [Doc. No. 1083, pp. 6-7.] The record indicates plaintiffs disagreed with the need for the proposed "product consumption limitation" but did not file an opposing letter brief. [Doc. No. 1080-1, at pp. 5-6.]
On March 19, 2012, the Court approved the Joint Bellwether Plan. [Doc. No. 1110.] The approved plan included the "product consumption limitation" at Sections IV(A)(4) and IV(A)(9). As part of the approved plan, plaintiffs and defendants were directed to each select a total of four (4) "bellwether cases" and one back-up case, with at least one case from each side being selected from two different categories of products consumed. [Doc. No. 1110, at pp. 3-4.]
The parties filed their respective bellwether selections with the Court on April 27, 2012. [Doc. Nos. 1238, 1239.] Thereafter, defendants notified plaintiffs they objected to the selection of plaintiffs Moraga and Mendoza to participate in the bellwether program, because they consumed more than one type of Hydroxycut product and were therefore ineligible under the "product consumption limitation." Defendants requested that plaintiffs withdraw these cases as bellwether selections. [Doc. No. 1293-3, pp. 1-4.] Plaintiffs took the position these selections are not ineligible under the "product consumption limitation, because they "are really single product cases." Plaintiffs therefore declined to withdraw Moraga and Mendoza as bellwether selections. [Doc. No. 1293-4, at pp. 2-4.] Defendants then filed a formal Objection with the Court on May 9, 2012. [Doc. No. 1292, at pp. 3-4.] On May 25, 2012, the parties filed their Joint Motion for Ruling on Plaintiffs' Bellwether Selections. [Doc. No. 1350.]
Discussion
Federal courts have the authority to conduct a "bellwether trial" under Federal Rule of Civil Procedure 42(b), which provides in part as follows: "For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one more separate issues, [or] claims . . . ." Fed.R.Civ.P. 42(b). "The term bellwether is derived from the ancient practice of belling a wether (a male sheep) selected to lead his flock. The ultimate success of the wether selected to wear the bell was determined by whether the flock had confidence that the wether would not lead them astray, and so it is in the mass tort context. The notion that the trial of some members of a large group of claimants may provide a basis for enhancing prospects of settlement or for resolving common issues or claims is a sound one that has achieved general acceptance by both bench and bar." In re Chevron U.S.A., Inc., 109 F.3d 1016, 1019 (5th Cir. 1997). There are several approaches to selecting representative plaintiffs. Sterling v. Velsicol Chemical Corp., 855 F.2d 1188, 1196 n.6.) Here, the selection of individual plaintiffs by the parties with oversight from the court is similar to approaches taken by other courts in designating representative bellwether cases for trial. See, e.g., In re Vioxx Products Litigation, 501 F.Supp.2d 789, 791 (2007).
If "bellwether trials or test cases are to produce reliable information about other mass tort cases, the specific plaintiffs and their claims should be representative of the range of cases. . . . Test cases should produce a sufficient number of representative verdicts and settlements to enable the parties and the court to determine the nature and strength of the claims, whether they can be fairly developed and litigated on a group basis, and what range of values the cases may have if resolution is attempted on a group basis. The more representative the test cases, the more reliable the information about similar cases will be." FEDERAL JUDICIAL CENTER, MANUAL FOR COMPLEX LITIGATION § 22.315 (4th ed. 2004). Thus, "representativeness" is a "core element" that must be present for a bellwether trial "to achieve its value ascertainment function for settlement purposes or to answer troubling causation or liability issues common to the universe of claimants." Chevron, 109 F.3d at p. 1019.
Here, the Court approved the Joint Bellwether Plan and included the "product consumption limitation" to address defendants' concern that plaintiffs who "consumed multiple products [would] not provide a representative basis for analysis of bellwether cases, given the multitude of potential causative issues that would need to be developed, as well as scientific issues that would need to be explored." [Doc. No. 1083, at p. 7.] In a letter brief submitted to the Court on February 29, 2012, defendants argued convincingly that plaintiffs who consumed only one product would be more representative of other cases currently pending in [this MDL] and would assist the bellwether process by allowing comparison between bellwether cases and other pending cases. [Doc. No. 1083, at p. 7.] Defendants also argued plaintiffs' proposal to pick cases without limitation would "unnecessarily complicate matters" and "effectively eviscerate[] the bellwether plan." [Doc. No. 1083, at p. 7.] Without a principled basis for selection of bellwether plaintiffs, defendants argued the plan would fail to achieve its goal of producing fair evaluations of the relative merits of these cases which could then be used to assist in evaluating the merits of many other cases in the litigation. [Doc. No. 1083, at p. 7.]
There are fourteen products involved in the Hydroycut litigation. [Doc. No. 1083, at 6.] Some plaintiffs consumed multiple Hydroxycut products which contain multiple different ingredients. [Doc. No. 1083, at p. 6.] According to defendants, limiting the bellwether plaintiffs to those who only consumed one type of Hydroxycut product "will allow for a simplification of the bellwether proceedings . . . by allowing the experts to focus on the more limited universe of ingredients involved in each product" rather than the inter-relationship of reactions to different products. [Doc. No. 1083, at p. 6.]
Plaintiff's position on the need for the "product consumption limitation" was stated as follows in the parties' Proposed Joint Bellwether Plan: "Plaintiffs do not agree with this provision. Plaintiffs will select their cases without limitation." [Doc. No. 1080-1, at pp. 5-6.] Plaintiffs had an opportunity prior to the Court's approval of the Joint Bellwether Plan to submit a letter brief stating the reasons for their position but did not do so. [Doc. Nos. 1080, 1080-1, at pp. 5-6.] Nor do plaintiffs contend in the parties' Joint Motion that the "product consumption limitation" is unnecessary. Instead, plaintiffs essentially argue that Moraga and Mendoza fall within the spirit of the "product consumption limitation" based on the specific facts of their respective cases, even though it could be said they took more than one Hydroxycut product. [Doc. No. 1350, at p. 2.]
Defendants have represented that the majority of plaintiffs claim one of two product lines caused their injuries: (1) Hydroxycut Hardcore Products, and (2) Hydroxycut "White Box" Products (Rapid Release). Each of these product lines includes multiple product types. Types of Hydroxycut Hardcore Products include Hydroxycut Hardcore Liquid Caplets, Hydroxycut Hardcore Drink Packets, and Hydroxycut Hardcore RTDs. [Doc. No. 1083, at pp. 6-7.] The Joint Bellwether Plan assigns these products to "Category 1." [Doc. No. 1110, at p. 3.] Types of Hydroxycut "White Box" Products include Hydroxycut Regular Rapid Release Caplets and Hydroxycut Caffeine-Free Rapid Release Caplets. [Doc. No. 1083, at pp. 6-7.] The Joint Bellwether Plan assigns these products to "Category 2." [Doc. No. 1110, at p. 4.] Since the majority of plaintiffs allege injuries as a result of the two product lines delineated as Category 1 and Category 2, the Joint Bellwether Plan requires the parties to each choose a total of four (4) cases for inclusion in the bellwether process, "with at least one from each of the . . . two (2) categories."(Emphasis added.) [Doc. No. 1110, at pp. 3-4.] However, the "product consumption limitation" at Sections IV(A)(4) and IV(A)(9) of the Joint Bellwether Plan states that: "If a Plaintiff took more than one type of Hydroxycut product they are not eligible for participation in the bellwether program." (Emphasis added.) [Doc. No. 1110, at pp. 4-5.]
In their Joint Motion, the parties have erroneously cited Section IV(A)(9) as the subject of their dispute. Although Sections IV(A)(4) and IV(A)(9) are identical, Section IV(A)(4) applies to plaintiffs' bellwether selections. Section IV(A)(9) applies to defendants' bellwether selections. The parties' dispute involves plaintiffs' bellwether selections, so the relevant provision is Section IV(A)(4).
Plaintiff Mario Moraga. Plaintiffs concede Moraga consumed a Hydroxycut Hardcore Product (Category 1) in 2005 and a Hydroxycut Rapid Release Product (Category 2) in late 2007. After taking a Hydroxycut Rapid Release Product (Category 2) continuously from October 2007 until December 2007, Moraga alleges he became ill, was diagnosed with acute liver failure, and needed a liver transplant in January 2008. [Doc. No. 1350, at p. 3.]
Plaintiffs argue Moraga should not be disqualified under the "product consumption limitation," because he only used one Hydroxycut product that could have been the cause of his injuries. Plaintiffs believe the irrelevance of Moraga's consumption of the Hydroxycut Hardcore Product (Category 1) in 2005 is established by: (1) the remoteness of Moraga's use of the Hydroxycut Hardcore Product (Category 1) in 2005 to the manifestation of his alleged injuries in 2007; (2) a treating doctor's report stating Moraga needed a liver transplant "as a result of two months of Hydroxycut use;" and (3) the results of Moraga's blood tests from February 2007 which show his liver was functioning normally before his consumption of the Hydroxycut Rapid Release Product (Category 2) in late 2007. [Doc. No. 1350, at p. 3-4.]
Despite plaintiffs' argument to the contrary, the record does not conclusively establish the irrelevance of Moraga's use of the Hydroxycut Hardcore Product (Category 1) in 2005. First, the doctor's report states only that Moraga had a liver transplant "for acute liver failure secondary to Hydroxycut-induced hepatotoxicity." [Doc. No. 1350-2, at p. 17.] The report does not state Moraga's liver failure was caused solely as a result of his consumption of the Hydroxycut Rapid Release Product in 2007. Nor does this report definitively rule out Moraga's consumption of a Hydroxycut Hardcore Product in 2005 as a contributing cause of his liver failure in 2007. Second, the results of Moraga's blood tests from February 2007 are not enough, standing alone, to show his consumption of the Hydroxycut Hardcore Product (Category 1) in 2005 is completely irrelevant to a causation analysis.
At this stage of the litigation, it is simply not possible to eliminate the potential that Moraga's admitted use of the Hydroxycut Hardcore Product in 2005 played a causal role in his subsequent personal injuries which manifested in 2007, after his consumption of Hydroxycut Rapid Release Product in 2007. Having consumed more than one Hydroxycut product that could have played a causal role in his alleged injuries, Moraga's case involves too many variables and, as a result, it is simply not representative enough to provide a useful basis for analysis when the circumstances at issue in his case are compared to other pending cases after a trial on the merits. FEDERAL JUDICIAL CENTER, MANUAL FOR COMPLEX LITIGATION § 22.315 (4th ed. 2004). As a result, Moraga's continued participation in the bellwether program would deprive other parties of the ability to properly evaluate the strengths and weaknesses of their claims, based on the outcome of the representative claims in the bellwether cases. Additionally, under the circumstances presented, it is possible that the two products used by the proposed bellwether plaintiff were manufactured by different companies, further complicating the causation analysis. The "product consumption limitation" was specifically included in the Joint Bellwether Plan to prevent this kind of complex causation analysis. A complicated causation analysis could easily defeat the purpose of the bellwether plan by diminishing the relative value of a comparison of Moraga's case to other pending cases. This Court therefore concludes defendants are entitled to an order precluding plaintiff Moraga from participating in the bellwether program.
Plaintiff Flor Mendoza. In February 2009, plaintiff Mendoza purchased Hydroxycut Rapid Release Caplets (Category 2) with promotional drink packets that were affixed to the package. [Doc. Nos. 1350,at p.5; 1350-2, at pp. 29-41.] Defendants refer to the drink packets as "Hydroxycut Powder Packs," which are not specifically listed under Category 1 or 2. [Doc. No. 1350, at pp. 4-5.] Mendoza consumed the Hydroxycut Rapid Release Caplets (Category 2) from February 2009 through April 2009. [Doc. No. 1350-2, at p. 22.] In a deposition, Mendoza testified she only used one of the affixed promotional drink packets during this same time period. [Doc. No. 1350-2, at p. 22, Doc. No. 1350-2, at pp. 44-45.] In April 2009, Mendoza was diagnosed with acute liver failure and needed a transplant. [Doc. No. 1350, at p. 4.]
Plaintiffs argue that Mendoza's one-time use of the drink packet affixed to the Hydroxycut Rapid Release Caplets (Category 2) is not enough to disqualify her from participation in the bellwether plan. According to plaintiffs, the Hydroxycut promotional drink packets are not a different type of product from the Hydroxycut Rapid Release Caplets, because they were sold together as a single product and contain the same active ingredients. [Doc. No. 1350, pp. 4-5.] Therefore, it appears these are the same product and the only difference between the two is the form - one is a caplet and the other is a small packet of powder that is poured into water or some other liquid before use. [See Doc. No. 1350-2, pp. 29-41.]
Defendants' position is that the Hydroxycut promotional drink packets are a different type of product than the Hydroxycut Rapid Release Caplets even though the two products were sold in a "combination pack[]." [Doc. No. 1350, at p. 9.] However, defendants have not cited anything from which this Court could conclude the two products sold in combination contain materially different ingredients. Assuming these two products do not contain materially different ingredients, Mendoza's claims are not likely to raise any of the complex causation issues that the "product consumption limitation" was designed to prevent. Therefore, under the circumstances presented, there is no valid reason for the Court to disqualify Mendoza as a bellwether plaintiff. As a result, the Court finds defendants are not entitled to an order precluding plaintiff Mendoza from participating in the bellwether program.
Conclusion
Based on the foregoing, IT IS HEREBY ORDERED THAT:
1. Defendants' request for an order precluding plaintiff Mario Moraga from participating in the bellwether program is GRANTED.
2. Defendants' request for an order precluding plaintiff Flor Mendoza from participating in the bellwether program is DENIED.
3. No later than July 5 , 2012 . plaintiffs shall file and serve an amended notice of their bellwether selections which complies with the requirements of the Joint Bellwether Plan and does not include plaintiff Mario Moraga.
IT IS SO ORDERED.
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KAREN S. CRAWFORD
United States Magistrate Judge