Saavedra v. Eli Lilly & Co.

Saavedra v. Eli Lilly & Co.

Opinion

ORDER DENYING PLAINTIFFS' MOTIONS FOR CLASS CERTIFICATION PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 23(b)(3) OR 23(c)(4) [73, 74]

I. INTRODUCTION

This is a putative class action arising from defendant Eli Lilly and Company's ("Lilly") alleged misrepresentations regarding its antidepressant, Cymbalta. Plaintiffs filed this action on October 31, 2012. In their corrected First Amended Complaint ("FAC"), Plaintiffs assert claims under four states' consumer protection laws. (Dkt. 44.)

Presently before the Court are Plaintiffs' alternative motions for class certification under Federal Rules of Civil Procedure 23(b)(3) and 23(c)(4). (Dkts. 73 & 74.) For the reasons discussed below, the Court DENIES [*3]  both motions.

II. FACTUAL AND PROCEDURAL BACKGROUND

Lilly's antidepressant, Cymbalta, is available only by prescription. (Perahia Decl. ¶ 3.) Since the Food and Drug Administration approved Cymbalta in 2004, Cymbalta's United States Package Insert (called its "label") has included a warning about possible discontinuation symptoms. (Hoog Decl. ¶¶ 7, 10.) The warning states that withdrawal symptoms occurred "at a rate greater than or equal to 1% and at a significantly higher rate in duloxetine [Cymbalta's chemical name]-treated patients compared to those discontinuing from placebo." (Hoog Decl. ¶ 12.) This warning has undergone only minor revisions since 2004. (Hoog Decl. ¶ 10.) Plaintiffs Jennifer Saavedra, Melissa Strafford, Carol Jacquez, and David Matthews, Jr. (collectively, "Plaintiffs") claim that the risk of withdrawal symptoms following Cymbalta is in fact approximately 44%. (Corrected First Amended Complaint ("FAC") ¶ 30.) Plaintiffs thus claim that in marketing and advertising Cymbalta,¹ Lilly misrepresented the risk of experiencing withdrawal symptoms upon its discontinuation.

Plaintiffs filed their FAC on January 10, 2013. (Dkt. 44.) In their FAC, Plaintiffs assert claims under: (1) California's Consumer Legal Remedies Act ("CLRA"), Cal. Civ Code §§ 1750, et seq.; (2) California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code §§ 17200, et seq.; (3) California's False Advertising Law ("FAL"), Cal Bus. & Prof. Code §§ 17500, et seq.; (4) Massachusetts's Consumer Protection Act, Mass. Gen. Laws Ch. 93A, §§ 1, et seq.; (5) Missouri's Merchandising Practices Act ("MPA"), Mo. Rev. Stat. §§ 407.010, et seq.; and (6) New York's Consumer Protection from Deceptive Acts and Practices Law, N.Y. Gen. Bus. Law §§ 349, et seq.²

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