Opinion
Civil No. 3:96-CV-2723-H
September 29, 1998
MEMORANDUM AND ORDER
Before the Court are Plaintiff's Motion for Class Certification, filed December 30, 1996, and all pleadings related thereto (including Defendants' Supplemental Brief in Opposition to Class Certification, filed June 22, 1998; Plaintiff's Response to Defendants' Supplemental Brief in Opposition to Class Certification, with Brief in Support, filed July 6, 1998; Plaintiff's Brief with Respect to Citgo, filed August 21, 1998; Defendants' Brief Concerning the Applicability of Allison v. Citgo Petroleum Corp., filed August 24, 1998; Defendants' Reply to Plaintiff's Response to Defendants' Supplemental Brief in Opposition to Class Certification, filed August 28, 1998).
I. Background .
Plaintiff alleges that after taking Defendants' mass-distributed drug, Aleve, for more than ten days, she suffered gastrointestinal injuries. Plaintiff asserts that her injuries were caused by Defendants' failure to adequately warn customers about the various risks of taking Aleve. Plaintiff seeks damages in excess of the jurisdictional minimum of this Court and an injunction to compel Defendants to print additional consumer warnings on Aleve bottles and packaging. II. Proposed Class Certification
Plaintiff seeks certification of the following two classes:
A. Fed.R.Civ.P. 23(b)(2) (injunctive class). Consumers resident in the United States who are past or prospective purchasers of Aleve, so that such consumers may be provided in the future with (I) adequate instructions and warnings regarding the dangers of taking Aleve for more than ten days at a time, (2) proper warnings paralleling those in the Physicians' Desk Reference for Naprosyn, the prescription version of the active ingredient in Aleve, and (3) proper warnings regarding Aleve's tendency to cause gastric disorders (such as gastrointestinal ulceration, perforation or bleeding).
B. Fed.R.Civ.P. 23(b)(3) (damages class). Consumers resident in Texas who at any time since two years prior to the date of filing of the complaint purchased Aleve without (1) a warning affixed to the Aleve bottle instructing consumers not to take Aleve for more than ten days at a time, or (2) proper warnings on the Aleve bottle, box or consumer leaflet of the dangers appearing in the Physicians' Desk Reference for Naprosyn, the prescription version of the active ingredient in Aleve, or (3) proper warnings on the Aleve bottle, box or consumer leaflet regarding Aleve's tendency to cause gastric disorders (such as gastrointestinal ulceration, perforation or bleeding).III. Class Certification Analysis .
Disposition of Plaintiff's Motion for Class Certification appears to be governed by Allison v. Citgo, 151 F.3d 402 (5th Cir. 1998) and Castano v. American Tobacco Co., 84 F.3d 734 (5th Cir. 1996).
Certification of an injunctive class under Fed.R.Civ.P. 23(b)(2) is inappropriate where a monetary relief predominates. Allison v. Citgo, supra. Claims for monetary relief predominate unless they are "incidental to the requested injunctive relief". Id. at 415. Here, Plaintiff seeks to certify a class of individuals for recovery of compensatory and exemplary damages in addition to injunctive relief Compensatory and exemplary damages normally — and in this case would — require individualized proof of causation and damages and are thus not incidental to injunctive relief See Citgo at 416. In sum, class claims for monetary relief would predominate thus barring an injunctive class. Accordingly, Plaintiff's Motion to Certify a 23(b)(2) class is DENIED.
With respect to the proposed damages class the existence of some issues common to potential damage class members' claims does not mandate certification under Fed.R.Civ.P. 23(b)(3); the Court must also determine if a class action is the superior method of resolving the litigation. See Castano v. American Tobacco Co., 84 F.3d 734, 745-46 (5th Cir. 1996). The predominance of individual causation and damages issues detracts from the superiority of the class action device in resolving claims. Id. The Court concludes that in this case individual causation and damages issues weigh decisively against the superiority of a class action.
It appears to the Court that "the most compelling rationale for finding superiority in a class action — the existence of a negative value suit — is missing in this case". See Castano, 84 F.3d at 748;Amchem Prod., Inc. v. Windsor, ___ U.S. ___, 117 S.Ct. 2231, 2246, 138 L.Ed.2d 689 (1997). The fact that Plaintiff's individual damages claim (and, presumably, the claim of each individual in the proposed class) would exceed the jurisdiction of this Court evidences the absence of a negative value suit.
Accordingly, Plaintiff's Motion to Certify a 23(b)(3) Class is DENIED.
Conclusion
Plaintiff's Motion for Class Certification is DENIED.
SO ORDERED.