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A Philadelphia judge has declined to certify as a nationwide class those Rite Aid customers who purchased what may have been counterfeit Lipitor in 2003. The proposed class would have included as many as 330,000 people, in every state except Louisiana, who in 2003 received recall notices from Rite Aid informing them that a portion of the cholesterol-reducer the pharmacy giant purchased from H.D. Smith Wholesale Drug Co. in spring 2003 might have been counterfeit, Philadelphia Common Pleas Judge Mark I. Bernstein wrote in Crepeau v. Rite Aid Inc. According to Bernstein’s opinion, no more than 20 percent of the 10-milligram Lipitor tablets and no more than 6 percent of the 20-milligram tablets Rite Aid purchased from H.D. Smith between April 22, 2003, and May 23, 2003, were counterfeit. Plaintiff Christopher Crepeau, a Michigan resident, had purchased a 20-milligram Lipitor tablet from Rite Aid in late April 2003. Bernstein noted that no Rite Aid customers who purchased Lipitor in 2003 suffered any known related ailments. “Plaintiff has created a class which is detrimentally over-inclusive,” Bernstein wrote. “As a result, neither plaintiff nor the court can ever determine class identity or size. … Plaintiff’s motion for class certification is denied.” According to the opinion, Crepeau defined the proposed class as “all residents of the United States except Louisiana who purchased counterfeit Lipitor tablets from Rite Aid in the year 2003, and who did not manifest physical injuries as a result of ingesting these tablets.” Bernstein turned to the five prerequisites for class certification under Pennsylvania law: numerosity, commonality, typicality, adequacy of representation, and fair and efficient method of adjudication. Though he concluded that plaintiff’s counsel would provide adequate representation for the class, Bernstein found that Crepeau had not satisfied the other four conditions. “In order to demonstrate numerosity, a plaintiff must show more than just a large number of potential plaintiffs,” Bernstein wrote. He added later, “Plaintiff cannot know, nor can he ever, discern or identify which of Rite Aid’s customers actually received counterfeit Lipitor. Plaintiff cannot exclude any of those 330,000 Rite Aid customers from the class. Everyone who purchased Lipitor [during the time period in question] received a recall notice but at least 80 percent of the Lipitor sold to these customers was authentic.” Addressing commonality, Bernstein argued that no common grievances exist between those who did happen to buy counterfeit tablets and those who did not. “It would be clearly unjust for the defendant to refund all purchases since at least 80 percent of the Lipitor sold by Rite Aid was genuine,” he wrote. Equal distribution of damages among all 330,000 proposed class members would result in over-compensation of those who got what they paid for, he added. As for typicality, Bernstein noted that it is not even possible to determine if the class’s named plaintiff, Crepeau, is a member of a class that is entitled to relief. In his analysis of the fifth certification requirement, Bernstein wrote that trying Crepeau’s case as a class action would “shift the burden of proof to [the defense] to show which of the class members received genuine Lipitor.” “Although this factor usually is not a basis for denial of class certification, plaintiff’s shift in the burden of proof does not allow for a fair method of adjudication,” he wrote. Rite Aid was represented by attorneys from Morgan Lewis & Bockius. Calls to the firm seeking comment were not immediately returned. Mark Cuker of Williams Cuker & Berezofsky, Crepeau’s attorney, said he couldn’t comment on Bernstein’s decision, as he was out of the office and hadn’t seen the opinion. Bernstein’s ruling in Crepeau marks the second time in as many weeks that the judge has denied certification to a proposed class in a case involving prescription drugs. Late last month, he refused to certify a proposed statewide class of women that sought medical monitoring, linking an increased risk of developing breast cancer to the hormone-replacement drug Prempro ( Albertson v. Wyeth Inc.). However, roughly three weeks ago, Bernstein certified as a nationwide class all third-party payors that had to refund beneficiaries or insureds for purchases of the cholesterol reducer Baycol, which Pittsburgh-based Bayer Corp. voluntarily removed from the market in 2001 ( In re Pennsylvania Baycol Third-Party Payor Litigation). Local attorneys have noted that it is rare in the United States for classes of third-party payors to be certified. In a recent interview with The Legal Intelligencer, Bernstein, who oversees the Philadelphia court system’s non-commercial class action cases, said he reviewed four proposed classes and certified two over the course of the past year.

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