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Philadelphia�A Pennsylvania state judge has refused to certify three proposed classes of consumers who used the anti-cholesterol drug Baycol, but at the same time approved a fourth class composed of consumers who used the drug in Pennsylvania and are seeking court-supervised medical monitoring of health problems they may develop from taking the drug. Baycol’s manufacturer, Bayer Corp., pulled the drug off the market in 2001 after reports that some patients who used it were suffering from rhabdomyolysis, a condition of severe muscle deterioration that can be fatal. The plaintiffs in Lewis v. Bayer brought suit against Bayer Corp., the Pittsburgh-based U.S. unit of Bayer A.G., and GlaxoSmithKline PLC, the pharmaceutical giant that assisted Bayer in marketing and distributing Baycol, according to court records. The certification was a partial victory for plaintiffs’ attorneys Arnold Levin, Fred Longer and Daniel Levin of Philadelphia’s Levin, Fishbein, Sedran & Berman. “I was grateful for what [the judge] did give me and disappointed for what he didn’t,” Arnold Levin said. Levin said that the certified class could number in the hundreds of thousands. Bayer Corp. said in a statement, “Having opposed certification of any class, Bayer will evaluate its legal options regarding the medical-monitoring class certification in Pennsylvania. The certification ruling is only the first procedural step in aggregating claims for a possible class action trial at a later stage in the proceedings and does not infer liability.” The representatives of the certified class have not been diagnosed with rhabdomyolysis or other conditions allegedly caused by Baycol ingestion, but claim they are at a significantly increased risk for developing the side effects associated with Baycol. Thus, their suit asks the court to order the defendants to pay for periodic medical exams that could detect the onset of the side effects, according to the opinion issued last week by Philadelphia Common Pleas Judge Mark I. Bernstein. “The theory is that if you can diagnose something early, you can prevent the injuries from occurring,” Levin said. Bernstein explained that proposed classes must present substantial evidence to make a prima facie case from which a Pennsylvania court can conclude that the five elements required under state class certification rules are met. Of the four classes proposed by plaintiffs, Bernstein found that only Class I, the Pennsylvania class seeking medical-monitoring benefits, met the five elements, which are numerosity, commonality, typicality, adequacy of represen- tation, and a fair and efficient method of adjudication. “The recommended monitoring program proposed by plaintiffs applies to all class members regardless of dose or duration,” Bernstein said. But Bayer believes that a medical-monitoring class is inappropriate “because the claims of the possible class members involve too many diverse and individual issues,” according to the company’s statement. “Some of these include differences in medical histories and care, Baycol dosages, and Baycol use with other drugs.” Bayer also believes that the class is improperly defined. In its complaint, Class I presented claims for medical monitoring, unjust enrichment and violation of the state Unfair Trade Practices and Consumer Protection Law, according to Bernstein’s opinion. Bernstein certified the class’s claim for medical monitoring, but found that the other claims failed to meet all of the required class certification elements. Plaintiffs alleged that more than 700,000 consumers used Baycol in the United States, satisfying the numerosity requirement, Bernstein said. Class I also met the commonality requirement on its medical-monitoring claim, and established that this claim and the defense of it would be typical of the entire class, he said.

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