January 26, 2010 

Written By Attorneys: Mark H. Rosenberg and Robert T. Horst

This article is an interpretation of current law and is offered for informational purposes only. This material is not legal advice and should not be construed or used as a substitute for the advice of an attorney.

A recent decision by the Pennsylvania Superior Court highlights the challenges that plaintiffs face in proving reliance and causation on a class-wide basis. In Clark v. Pfizer, Inc., --- A.2d ---, 2010 PA Super 6, 2010 WL 163583 (Jan. 19, 2009), the Superior Court reviewed an order by the Court of Common Pleas of Philadelphia County decertifying a class and granting partial summary judgment to the defendant in a matter involving drug manufacturers' allegedly improper marketing of a prescription medication. The plaintiffs specifically contended that the drug manufacturers unlawfully promoted the medication to physicians for "off-label" uses for which the medication had not been approved by the Food and Drug Administration, and for which the medication was purportedly ineffective.

The plaintiffs brought claims for misrepresentation, negligence, negligence per se, and breach of express warranty. Plaintiffs sought to represent a class of Pennsylvania residents from 1995 to the present that purchased the medication for an "off-label" use. After initially granting class certification, the trial court decertified the class and granted summary judgment in the defendants' favor with regard to the breach of warranty claim. On appeal, the Superior Court held that the decision to decertify the class was appropriate. The Court specifically held that as the plaintiffs' claims were based upon allegations of misrepresentation, the plaintiffs had a duty to establish the elements of reliance and causation on a class-wide basis, which could not be presumed.

The Superior Court's decision in Clark v. Pfizer reflects the difficulty of establishing class certification with regard to causes of action requiring proof of reliance and causation, such as fraud. As Clark demonstrates, courts are often hesitant to allow proof of such elements through "shortcuts," and that statistical modeling will not always allow a class plaintiff to meet this heavy burden at the certification stage. Rather, these elements often require an examination of the individual circumstances pertaining to each class member's claim. The need to take these circumstances into account necessarily renders class certification an inappropriate method of adjudicating these claims.

We will continue to monitor this matter and whether or not any party will seek permission to appeal to the Supreme Court of Pennsylvania.

Any questions or inquiries about this matter may be directed to Mark H. Rosenberg, 215-358-5198 or MRosenberg@nldhlaw.com.