Preparations of pharmaceutical companies often constitute a “target” for the submission of class actions. Thus, for instance, based on the ground of “damage to autonomy”, suits are filed, from time to time, regarding the information included in the patient leaflet, or as a consequence of a product recall from the market due to concern of the preparation being defective. The aforesaid claims are filed even if no damage is caused to the patient population (other than damage that is claimed as “denying the right of choice”), and which by most accounts gives rise to complex questions in the scientific-medical area.
Sometimes a class action plaintiff acts hastily to submit his claim while foregoing the need to invest the resources associated with clarifying the scientific issues, and particularly the need to support his claim with a valid medical expert opinion. In a decision that was recently rendered, concerning legal proceedings in which our firm represented Teva Pharmaceutical Industries Ltd., the Tel-Aviv District Court conveyed a clear message to class action plaintiffs: there are no shortcuts! In the absence of a medical expert opinion, a motion seeking class action certification, based on scientific-medical grounds, will be dismissed in limine.
The decision clarifies and hones the standard by which a class action ought to comply, and generates a “chilling effect” with respect to class actions in the area of pharmaceutical preparations. This effect will help reduce the phenomenon of abuse of the mechanism of class action lawsuits in the area of pharmaceuticals and in similar areas that arouse scientific issues.
A. THE BACKGROUND TO THE DECISION
A motion to approve a class action was filed against Teva in connection with the purported defect in a preparation manufactured and marketed by it (hereinafter, respectively, “the Motion” and “the Preparation”). The claim was based on a "recall" notice regarding a specific batch of the Preparation, due only to the concern of the existence of a defect in a small number of bottles. The Motion also included various claims of the possible implications of the purported defect in the medical field. The plaintiff demanded for himself, and for all patients who took the Preparation, compensation for only pecuniary damage in the sense of “damage to autonomy” as well as reimbursement of the purchase price paid for the Preparation. However, the plaintiff refrained from presenting an evidentiary framework allegedly establishing his claims in the medical-scientific arena, by means of submitting a medical expert opinion as required by law.
In these circumstances, Teva petitioned the court seeking for the dismissal, in limine, of the Certification Motion and the claim.
B. THE DISTRICT COURT’S DECISION
The court accepted Teva’s position and held that the claim falls within the exceptional circumstances that justify dismissal in limine, even prior to carrying out a preliminary investigation of the Certification Motion (as distinct, for example, from striking out the claim in limine, that would have allowed the plaintiff to submit his claim from anew). The court’s decision gives rise to a number of holdings which have broad implication:
Firstly, the court implemented the basic principle that in the absence of a medical expert opinion, there is no evidentiary basis to the plaintiff’s claims that he indeed took a defective Preparation, and thus the basis to the existence of the claimed right to receive compensation is void. In the absence medical expert opinion, the Motion is based on circumstantial speculation that lacks positive proof that the plaintiff indeed consumed the Preparation and what medical implications can be attributed thereto.
It stems from the decision that the notice regarding recall of the Preparation from the market, does not, in and of itself, automatically establish for a plaintiff a ground for submitting a class action. These factors receive secondary validity, particularly, where notice of a recall of products from the market is done for the sake of caution only, on account of a suspected defect whose existence cannot be established with certainty.
Secondly, the court held that the Motion is “one example of many” class actions that are hastily submitted to court, without making adequate inquiries or appropriate preparations for the legal proceedings. The court criticized this phenomenon, and ruled that the source for this practice is a personal motivation of the representative plaintiff “to be the first to file suit”, even at the cost of not having appropriately tested or having any basis for the Certification Motion.
