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Plaintiffs’ lawyers are filing an increasing number of class actions under state consumer-protection laws in conjunction with, or in place of, traditional personal injury class actions, which have become too difficult in recent years to certify. The trend is so pronounced that in some litigation � such as in recent class actions involving the potential health dangers of Teflon cookware and alleged hearing loss associated with Apple Inc.’s iPod � plaintiffs’ lawyers haven’t filed a single injury claim. Defense lawyers say injury-related consumer class actions have risen in the past five years as the plaintiffs’ bar has sought out new “lucrative” areas for monetary relief. In recent years, judges have refused to certify class actions of personal injury claims, in most cases because the facts and circumstances surrounding injured plaintiffs are too dissimilar to allow their claims to be decided together. Plaintiffs’ lawyers said the suits are a different “avenue of relief” and represent an economic, rather than physical, injury caused by the defendants’ conduct. Most recently, plaintiffs’ lawyers have obtained settlements in injury-related consumer class actions against the manufacturer of the antidepressant drug Paxil and against several soda drink manufacturers, including PepsiCo Inc. and The Coca-Cola Co. In most cases, the class actions seek reimbursements for people who claim they would not have purchased a product if they had known it might cause physical harm. “The personal injury cases are still there, but in addition to those, there are cases being brought on consumer-protection laws that are developing,” said James Quadra, a partner at San Francisco-based Moscone, Emblidge & Quadra, which filed a consumer class action last month against Advanced Medical Optics Inc., whose contact lens solutions were recalled due to eye infections. “Slowly, people are looking at consumer protection laws as a mechanism for holding people accountable for effecting change,” Quadra said. In several cases, consumer class actions have been filed in conjunction with, but separate from, personal injury claims against the same defendant. That’s the case in the recent litigation against several makers of contact lens solutions. “It’s very challenging to bring a personal injury case as a class action,” said Wendy Fleishman, a partner in the New York office of San Francisco’s Lieff Cabraser Heimann & Bernstein who serves on the executive committee overseeing several personal injury claims against Bausch & Lomb Inc. In re Bausch & Lomb Contact Lens Solution Products Liability Litigation, No. 2:06-MN-77777 (D.S.C.). Separately, several consumer class actions have been filed against Bausch & Lomb, which argued on June 26 that they should be dismissed. ‘A real stretch’ Melissa Harnett, a partner at Tarzana, Calif.-based Wasserman, Comden & Casselman, whose firm is on the plaintiffs’ steering committee for the Bausch & Lomb consumer class actions, said the company’s dismissal motion raises questions about whether economic injuries could be brought in a case involving physical injuries if the class members aren’t actually injured. She called the defendant’s theory “a real stretch.” “What they’re basically trying to say is: If we make misrepresentations that force you to purchase a product that might hurt you, we should be able to do that until you have suffered an injury,” she said. John Beisner, a partner in the Washington office of O’Melveny & Myers and lead defense counsel for Bausch & Lomb, did not return calls seeking comment. In similar claims against Advanced Medical Optics, two law firms, Moscone Emblidge and Lieff Cabraser, filed the first consumer class action last month that seeks reimbursement for individuals who purchased its products. Degelmann v. Advanced Medical Optics Inc., No. 3:07-cv-03107 (N.D. Calif.). Quadra said he’s not averse to bringing personal injury claims on behalf of those who suffered from eye infections, but he called the consumer case a “different avenue of relief for a different type of injury.” He said a personal injury claim, among other things, doesn’t allow a plaintiff to seek injunctive relief. Advanced Medical Optics spokesman Steve Chesterman declined to comment on pending litigation. Some lawyers said consumer class actions have become particularly prevalent against prescription-drug manufacturers as those companies face more personal injury claims. Consumers have filed more class actions because of the aggressive marketing and advertising tactics of drug companies, said Robert Brava-Partain, a lawyer at Los Angeles-based Baum, Hedlund, Aristei, Goldman & Menzies, a plaintiffs’ firm that has filed personal injury class actions and consumer class actions against GlaxoSmithKline PLC, which makes Paxil. “I don’t think it’s necessarily that a bunch of plaintiffs’ lawyers said, ‘I know what we should do,’ ” he said. “ There are more cases now because the drug companies are more aggressive with these drugs.” Dwight Davis, a partner at Atlanta-based King & Spalding, who represents Glaxo, disagreed. He called the recent spate of consumer class actions like the one against his client, a “lucrative area for the plaintiffs’ bar. “Plaintiffs’ lawyers are crafty enough to realize that very few people are actually injured by any of these products,” Davis said. “Instead, what they look for are people who purchased the products.” Glaxo settlement In May, Glaxo paid $64 million to settle with a class of parents who sought reimbursement for their out-of-pocket expenses in purchasing Paxil, which has been linked to suicidal thoughts in children and teenagers. In contrast, attempts to certify a class of personal injury claimants against Glaxo have failed, said Brava-Partain. Personal injury class actions are “really, really tough” given that they involve various injuries and facts, he said. “A consumer class action is a lot lower bar when it comes to proof,” he said. “It’s pretty simple to figure out that Joe Smith paid $20 and Mary Smith paid $30.” Davis said Glaxo agreed to fight the personal injury claims but settle the consumer class action after determining the latter was likely to obtain class certification. He noted that the settlement was for “substantially less than what they were asking for.” In some cases, the consumer class actions are filed without related suits involving injured plaintiffs. In two multidistrict litigation actions pending in California, consumers are seeking reimbursement for their purchases of the iPod and of Motorola Inc.’s Bluetooth headsets, alleging that the products displayed inadequate warnings of noise-induced hearing loss. No plaintiff in either case has suffered from hearing loss. “What we are seeking is purely economic injury, the return of their purchase price,” said Harnett of Wasserman Comden, who is lead counsel for the plaintiffs in the Bluetooth cases. In re Bluetooth Headset Products Liability Litigation, No. 2:07-ml-01822 (C.D. Calif.). Even though she knows people who suffered hearing loss, her firm opted against filing personal injury class actions because they would have been difficult to certify. “In the complaint, we’re very specific to say we’re not seeking damages for personal injury,” she said. She said plaintiffs’ lawyers are planning to file a consolidated complaint later this month. Terry Dee, a partner at Chicago-based Kirkland & Ellis who is lead defense counsel in the case, did not return calls for comment. In the iPod case, defense attorneys have filed a motion to dismiss the case. Birdsong v. Apple Inc., No. 5:06-cv-02280 (N.D. Calif.). “Despite couching his claim in product liability terms, Birdsong does not allege that he or anyone else has suffered hearing loss caused by the iPod,” said Apple in court papers, noting that the iPod includes noise-related warnings. Lawyers on both sides either declined to comment or did not return calls. In another case, PepsiCo agreed last month to settle about half a dozen consumer class actions alleging that its Diet Pepsi Wild Cherry drink contained dangerous amounts of benzene, which has been known to cause cancer and other health problems. Gonzalez v. In-Zone Brands Inc., No. 2:06-cv-02163 (D. Kan.). Under the recent settlement, PepsiCo agreed to change its products and refund millions of consumers who bought the drinks, said Andrew Rainer, a partner at Boston-based McRoberts, Roberts & Rainer, which has settled about 10 consumer class actions over benzene against soda manufacturers, including Coca-Cola. The beverage companies jointly sought to dismiss a case in Kansas on partial grounds that there was no injury alleged, but a federal judge rejected that motion two months ago. Rainer said the benzene cases represent the “first time I’ve brought a case in which an important aspect of the consumer claim was that the product posed a risk of injury.” He said he plans to bring more cases. Rick Shackelford, a partner in Jones Day’s Los Angeles office who represents PepsiCo in the benzene litigation, said the cases alleged no injuries, and “every effort was made by the plaintiffs to take tort elements out of the case.” E.I. du Pont de Nemours & Co. faces 23 class actions in multidistrict litigation alleging that it failed to disclose health risks associated with its nonstick cookware. In re Teflon Products Litigation, No. 4:06-md-01733 (S.D. Iowa). A ‘first’ But no personal injury claims have been filed against DuPont over Teflon. Kaspar Stoffelmayr, a partner in the Denver office of Chicago-based Bartlit Beck Herman Palenchar & Scott, who represents DuPont, called the suits “a first” for him. “I’ve seen a lot of cases where there are actual injuries, and it’s easy enough to get your head around what the claim is there. I’ve seen consumer fraud, where there’s a clear economic loss from the alleged fraud,” he said. “This is a different animal, where they’re trying to take advantage of claims about a physical risk but not actually come up with any significant evidence of the risk coming to pass,” he added. Steve Silverman, a partner at Miami-based Kluger, Peretz, Kaplan & Berlin, lead plaintiffs’ counsel in the Teflon cases, did not return calls seeking comment.

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