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Harden Mfg. Corp. v. Pfizer, Inc. (In re: Neurontin Mktg. & Sales Practices Litig.)

Harden Mfg. Corp. v. Pfizer, Inc. (In re: Neurontin Mktg. & Sales Practices Litig.)

United States Court of Appeals for the First Circuit

April 3, 2013, Decided

No. 11-1806

Opinion

 [*61]  LYNCH, Chief Judge.

This appeal by Harden Manufacturing Corporation and others (together, "Harden plaintiffs") is one of three that arose from multidistrict litigation ("MDL") concerning the off-label marketing of Neurontin, an anticonvulsant drug manufactured by Pfizer, Inc. Today we issue our decisions in Kaiser Foundation Health Plan, Inc. v. Pfizer, Inc. (Kaiser), Nos. 11-1904, 11-2096, 712 F.3d 21, 2013 U.S. App. LEXIS 6793 (1st Cir.    , 2013), and Aetna, Inc. v. Pfizer, Inc. (Aetna), No. 11-1595, 712 F.3d 51, 2013 U.S. App. LEXIS 6796 (1st Cir.    , 2013), which are relevant to this appeal. We assume familiarity with both opinions, which dispose of many of Pfizer's arguments, and limit  [**2] our discussion here to the issues particular to this appeal.

The Harden plaintiffs, representing a putative class of third-party payors ("TPPs"), ask us to reverse both the district court's grant of summary judgment to Pfizer and the court's denial of class certification on the plaintiffs' claims under section 1962 of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968, the New Jersey Consumer Fraud Act (NJCFA), N.J. Stat. Ann. §§ 56:8-1 to 56:8-195, and state common law claims of fraud and unjust enrichment. The core of the plaintiffs' claims, as in Kaiser and Aetna, is the allegation that Pfizer engaged in a fraudulent off-label  [*62]  marketing campaign that caused the TPPs to pay for Neurontin prescriptions that were ineffective for the off-label conditions at issue, and that the plaintiffs suffered injury when they paid for those prescriptions. The details of these allegations are described in the district court's opinion in In re Neurontin Mktg. & Sales Practices Litig. (Harden II), 257 F.R.D. 315, 317-18 (D. Mass. 2009). The Harden plaintiffs' appeal is limited to only the claims regarding the off-label use of Neurontin for bipolar disorder, as to both  [**3] the summary judgment and the class certification issues.

The plaintiffs argue that the district court erred in concluding that they failed to present a genuine issue of material fact as to whether their injuries were caused by Pfizer's conduct. They also argue that the district court abused its discretion in denying class certification on the basis of a finding that individual issues of causation and damages would predominate.

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712 F.3d 60 *; 2013 U.S. App. LEXIS 6797 **; 2013 WL 1320407

IN RE: NEURONTIN MARKETING AND SALES PRACTICES LITIGATION; HARDEN MANUFACTURING CORPORATION, individually and on behalf of itself and all others similarly situated; ASEA/AFSCME LOCAL 52 HEALTH BENEFITS TRUST; LOUISIANA HEALTH SERVICE INDEMNITY COMPANY, d/b/a Blue Cross Blue Shield of Louisiana, Plaintiffs, Appellants, INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL NO. 68 WELFARE FUND, on behalf of itself and all others similarly situated; LORRAINE KOPA, on behalf of herself and all others similarly situated; GERALD SMITH, on behalf of himself and all others similarly situated; JEANNE RAMSEY, on behalf of herself and all others similarly situated; CAROLYN HOLLAWAY, on behalf of herself and all others similarly situated; GARY VARNAM, on behalf of himself and all others similarly situated; JAN FRANK WITYK, on behalf of herself and all others similarly situated, Plaintiffs, v. PFIZER, INC.; WARNER-LAMBERT COMPANY LLC, Defendants, Appellees.

Subsequent History: Remanded by In re Neurontin Mktg., Sales Practices & Prods. Liab. Litig., 2013 U.S. Dist. LEXIS 107637 (J.P.M.L., July 29, 2013)

US Supreme Court certiorari denied by Pfizer Inc. v. Kaiser Found. Health Plan, Inc., 134 S. Ct. 786, 187 L. Ed. 2d 594, 2013 U.S. LEXIS 8896 (U.S., 2013)

Prior History:  [**1] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Patti B. Saris, U.S. District Judge.

In re Neurontin Mktg. & Sales Practices Litig., 2011 U.S. Dist. LEXIS 61636 (D. Mass., May 17, 2011)In re Neurontin Mktg. & Sale Practices Litig., 244 F.R.D. 89, 2007 U.S. Dist. LEXIS 63898 (D. Mass., 2007)Harden Mfg. Corp. v. Pfizer, Inc. (In re Neurontin Mktg. & Sales Practices Litig.), 754 F. Supp. 2d 293, 2010 U.S. Dist. LEXIS 131627 (D. Mass., 2010)

CORE TERMS

causation, district court, plaintiffs', summary judgment, off-label, prescriptions, decisions, bipolar disorder, prescribed, class certification, marketing, misrepresentations, fraudulent, but-for, aggregate, ineffective, causal chain, denial of class certification, grant of summary judgment, marketing campaign, state law claim, formularies, damages, factors, genuine, vacate, circumstantial evidence, triable issue of fact, proximate causation, present evidence

Civil Procedure, Summary Judgment, Entitlement as Matter of Law, Genuine Disputes, Appeals, Summary Judgment Review, Standards of Review, Legal Entitlement, Antitrust & Trade Law, Racketeer Influenced & Corrupt Organizations, Claims, General Overview, Torts, Elements, Causation, Standards of Review, Abuse of Discretion, Special Proceedings, Class Actions, Certification of Classes