What's In Them For Us?


The Supreme Court decided the climate change case, American Electric Power Co. v. Connecticut, No. 10–174, slip op. (U.S. June 20, 2011), and the class action case, Wal-Mart Stores, Inc. v. Dukes, No. 10–277, slip op. (U.S. June 20, 2011), yesterday. We can’t hope to compete with the deluge of general comment on these two behemoths (nor would we be particularly competent to do so), so we’ll focus on what, if anything, we’ve found in these decisions that’s relevant to prescription medical product liability litigation.

Wal-Mart v. Dukes

First Dukes – initially because it was released a few minutes before AEP, and ultimately because there’s more there there (apologies to Oakland) for us. As everyone who cares to know already knows, Dukes was (before yesterday) a gigantic employment discrimination case. As a substantive matter, there’s not a whole lot of overlap between Dukes and what we do here. Everybody knew that the Dukes class action was so huge and polyglot that its certification had a target on its back. Indeed, not a single justice was willing to uphold the Ninth Circuit’s decision that there was a certifiable class. But while part of Dukes (Part III, to be exact) was unanimous, another part (Part II) is only 5-4, and the Part II split was the usual “liberal/conservative” one with Kennedy siding with the Court’s right wing.

Interestingly, the 5-4 part of the opinion was decided on commonality grounds. Previously, that prong of Rule 23(a) had been sort of a “gimme” in class action litigation. Most courts had held commonality satisfied if any plausible “common” issue existed, no matter how many individualized issues existed nor how weighty they were.

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