Kaye Scholer successfully obtained an order from the United States Judicial Panel on Multidistrict Litigation (JPML) denying the centralization of two actions filed against clients Endo Pharmaceuticals Inc. and Vintage Pharmaceuticals, LLC d/b/a Qualitest Pharmaceuticals (Qualitest).
The two separate actions, consisting of a putative class action (Northern District of Georgia) and an action filed on behalf of an individual plaintiff (Western District of Missouri), relate to the September 2011 recall of several oral contraceptive products manufactured for Endo unit Qualitest after select blister packs within the recalled drug lots were rotated 180 degrees within the card, reversing the weekly tablet orientation and making the lot number and expiry date no longer visible. Plaintiffs allege that they purchased one or more incorrectly packaged products and, as a result of taking the pills in the wrong order, were left at risk for unwanted pregnancy.
Plaintiffs in the putative class action pending in the Northern District of Georgia moved to centralize litigation in that district. However, the JPML agreed with Kaye Scholer’s argument opposing centralization and denied the motion, noting that “It appears that individualized facts - particularly relating to whether each plaintiff received an improperly packaged Qualitest birth control product and whether she became pregnant as a result of taking the pills in the wrong order - will predominate over the common factual issues alleged by plaintiffs.”
This is not the first victory achieved by Kaye Scholer in cases involving allegedly improperly packaged birth control pills. In 2012, we secured the dismissal of a class action, Zubrick v. Endo Pharmaceuticals (USDC, Northern District of Illinois), due to lack of standing because there was no evidence that the plaintiff received a defective package. On the heels of the success in Zubrick, we achieved a similar victory by securing a denial of a plaintiff’s motion for class certification and a partial grant of summary judgment in Federman v. Qualitest (Los Angeles Superior Court).
The Kaye Scholer team was led by IADC member Pamela J. Yates, who presented oral argument before the JPML. Alan E. Rothman and Angela R. Vicari co-wrote the briefs and assisted Pamela in preparing for her oral argument.