Kansas City federal district court judge Ortrie Smith denied a motion to certify various multi-state classes back in July, but he gave the plaintiffs “an opportunity to persuade the Court that a class of Missouri consumers should be certified.” After hefty briefing by both sides, Judge Smith remained unpersuaded. On Dec. 22 the judge again denied the plaintiffs’ motion to certify a consumer class–this time a statewide class of purchasers of BPA-laden containers and bottles. [Hat tip: Dechert's Sean Wajert at the Mass Tort Defense blog.]
BPA, a synthetic estrogen used to make hard plastics, can mimic the body’s own hormones. It has been linked with health problems including cancer, sexual disfunction and heart disease. In January 2010, the Food and Drug Administration flipped its position on the safety of BPA, noting concerns about the compound’s impact on fetuses, infants and young children. The cases in the MDL, which predate the FDA’s change of heart on BPA, were assigned to Judge Smith in 2008. There are about two dozen cases pending against makers of baby bottles and baby formula in the MDL.
Judge Smith cited various grounds for denying the plaintiffs initial certification motion last July, including the U.S. Supreme Court’s newly-issued opinion in Wal-Mart v. Dukes, which tightened the standards for pleading class commonality. In the plaintiffs’ latest attempt to win class status, co-lead counsel at Whatley Drake & Kallas and Walters, Bender, Strohbehn & Vaughan proposed a class including Missouri purchasers of new polycarbonate baby bottles or sippy cups that were manufactured, sold or distributed by Handi-Craft Company, Gerber Products Company, and Evenflo Company, Inc. since 2002. The plaintiffs listed three causes of action against the companies: violation of the Missouri Merchandising Practices Act (MMPA), breach of the implied warranty of merchantability, and unjust enrichment.
In his 17-page opinion denying the latest certification motion, Judge Smith found that the proposed Missouri class included members who hadn’t been harmed and thus lacked standing. “Plaintiffs’ proposed class cannot be certified because it includes individuals who have not suffered an injury in fact,” the judge wrote. He pointed out that the defendants had submitted proof that the media began to report on the potential dangers of BPA as long ago as 1999. “Individuals who knew about BPA’s existence and the surrounding controversy before purchasing Defendants’ products have no injury,” Judge Smith concluded.
Co-lead plaintiffs counsel Edith Kallas of Whatley Drake and Thomas Bender of Walters Bender didn’t respond to messages seeking comment. The defense lineup includes Bryan Cave for Evenflo; Herzog Crebs for Handi-Craft, and White & Case for Gerber. We left messages with lawyers from each of the firms but didn’t hear back.