Friday, October 21, 2011

Finally, Some Good Propofol News

We have to admit the news has been pretty dreary out of the Nevada Propofol litigation recently.  As far as the state litigation is concerned, we can only hope that the defendants do better on appeal than in the trial court (it would be hard to do worse).

There was some good news, however, from the federal side of the litigation – demonstrating once again the wisdom of removal. At least there won’t be any class action.  See Rader v. Teva Parenteral Medicines, Inc., No. 2:10-cv-00818 (JCM) (RJJ), slip op. (D. Nev. Oct. 5, 2011).

The plaintiff alleged that he was one of over 60,000 patients who had been “exposed to a risk of possible exposure to blood-borne pathogens due to unsafe injection practices” at a certain medical clinic.  Slip op. at 2.  Oddly, but predictably, plaintiff did not sue the actual perpetrators of these “unsafe” practices (who were already criminally prosecuted), but only the makers of the Propofol, who allegedly committed the heinous act of selling the drug in containers of a size approved by the FDA.  The drug was perfectly sterile until the incompetent doctors got ahold of it.

This just shows how kooky litigation has gotten these days.  Doctors don’t sterilize their instruments and who gets sued?  The drug that was used in the procedure.

Very predictably, the putative class representative didn’t allege any injury at all – or even actual exposure – only a “risk” of exposure.  He wanted some sort of testing, slip op. at 3, which was another of the problems with the litigation, since Nevada rejects medical monitoring as a cause of action.  Badillo v. American Brands, Inc., 16 P.3d 435 (Nev. 2001).  See Slip op. at 8.  The only common issue we see is whether the plaintiff should be subject to Rule 11 sanctions.

But we digress.

Class certification was denied on numerous grounds:

(1) The class definition was garbage.  The mere fact of membership in the supposed class could not be determined without an individualized inquiry – indeed, no fewer than five individualized questions had to be answered before class membership alone could be ascertained, which must be some sort of record.  Slip op. at 5-6.

(2) The class representative was inadequate.  Specifically he was a bankrupt who no longer had standing to bring any claims, as they were now the property of the bankruptcy estate.  Slip op. at 6.  We’d be interested to know whether he listed the claim as an asset in his bankruptcy filings, since most plaintiffs we’ve seen in similar situations don’t do that either.

(3) The class representative was doubly inadequate.  Not only was he a deadbeat, but he split his causes of action, opting only for the no-injury claims (that don’t exist under Nevada law), and thus exposing everyone else to losing other claims for more important (if less amenable to class action treatment) injuries.  Slip op. at 6-7.

(4) Common issues did not predominate. There were scads of individual issues:  product exposure, disease exposure, product identification, differences in product characteristics, alternative causation, differing treatments, differing exposures, and damages, to name a few.  Slip op. at 7-8.

(5) Emotional distress damages, as a matter of law, are not amenable to class action treatment.  Slip op. at 9.

We’ll be adding Rader to our ever lengthening cheat sheet of class action denials (federal division).