Andren et al v. Alere Inc. et al

Filing 125

ORDER Setting Supplemental Briefing Schedule 75 . Plaintiff shall file a supplemental brief, no longer than 10 pages, on or before October 13, 2017. Defendant shall file a supplemental responsive brief, no longer than 10 pages, on or before October 20, 2017. Signed by Judge Gonzalo P. Curiel on 9/28/17.(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 16cv1255-GPC(AGS)

DINA ANDREN, SIDNEY BLUDMAN,
VIRGINIA CIOFFI, BERNARD FALK,
JEANETTE KERZNER-GREEN,
CAROL MONTALBANO, and
DONALD RIGOT, individually, and on
behalf of other members of the general
public similarly situated, ,

ORDER SETTING SUPPLEMENTAL
BRIEFING SCHEDULE

Plaintiff,

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v.

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ALERE, INC., a Delaware corporation,
ALERE HOME MONITORING, INC., a
Delaware corportation, ALERE SAN
DIEGO, INCA., a Delaware corporation,,

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Defendant.

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On September 22, 2017, the Court held a hearing on Plaintiffs’ motion for class

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certification. (Dkt. No. 122.) One key issue is the adequacy of Plaintiffs to represent the

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class based on their pursuit of economic damages and not personal injury damages.

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Defendant claims they are improperly claim-splitting while Plaintiffs disagree. If claims

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are split, there is a question as to the res judicata/collateral estoppel effect of a

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determination in this case on personal injury claims should a class member seek personal
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16cv1255-GPC(AGS)

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injury damages in future litigation. The parties’ briefing does not adequately address the

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complexities and intricacies of this issue. At the hearing, the parties, without any legal

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support, offered their views on this question. Consequently, the Court finds that further

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briefing is required.

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“Claim splitting is generally prohibited by the doctrine of res judicata . . . [and]

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class certification should be denied on the basis that class representatives are inadequate

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when they opt to pursue certain claims on a class-wide basis while jeopardizing the class

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members’ ability to subsequently pursue other claims.” In re Conseco Life Ins. Co. Life

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Trend Ins. Sales and Marketing Litig., 270 F.R.D. 521, 531 (N.D. Cal. 2010) (quoting In

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re Universal Serv. Fund Tel. Billing Prac. Litig., 219 F.R.D. 661, 668 (D. Kan. 2004)

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(“This is not a case where the class representatives are pursuing relatively insignificant

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claims while jeopardizing the ability of class members to pursue far more substantial,

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meaningful claims. Rather, here the named plaintiffs simply decided to pursue certain

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claims while abandoning a fraud claim that probably was not certifiable.”)): Kruger v.

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Wyeth, Inc., No. 03cv2496-JLS(AJB), 2008 WL 481956, at *3 (S.D. Cal. Feb. 19, 2008)

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(denying class certification based on adequacy for claims brought under California’s

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CLRA and UCL since class was open to those who suffered personal injuries but the

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plaintiff was not seeking to pursue personal injury damages”); Feinstein v. Firestone Tire

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& Rubber Co., 535 F. Supp. 595, 606-07 (S.D.N.Y. 1982) (denying class certification on,

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inter alia, adequacy grounds where named plaintiffs asserted claims for breach of an

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implied warranty of merchantability but did not seek damages for death, personal injury

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and accident–related property damages); but see Kennedy v. Jackson Nat'l Life Ins. Co.,

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No. 07–0371 CW, 2010 WL 2524360, at *5 (N.D. Cal. June 23, 2010) (“Defendant

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cannot claim that Plaintiff is inadequate because she declines to assert a theory that could

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unravel the putative class.”).

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The Ninth Circuit has not yet considered claim-splitting on a motion for class

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certification. In a recent case, the Fifth Circuit addressed claim splitting in a class action

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case and provided factors that this Court finds relevant. See Slade v. Progressive Sec.
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Ins. Co., 856 F.3d 408, 413 (5th Cir. 2017). “[D]eciding whether a class representative’s

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decision to forego certain claims defeats adequacy requires an inquiry into, at least: (1)

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the risk that unnamed class members will forfeit their right to pursue the waived claim in

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future litigation, (2) the value of the waived claim, and (3) the strategic value of the

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waiver, which can include the value of proceeding as a class (if the waiver is key to

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certification). Id.

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The Court directs the parties to provide additional briefing on the issue of claim-

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splitting and to address the factors raised by the Fifth Circuit with legal authority and

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evidentiary support. Accordingly, IT IS HEREBY ORDERED that Plaintiff shall file a

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supplemental brief, no longer than 10 pages, on or before October 13, 2017. Defendant

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shall file a supplemental responsive brief, no longer than 10 pages, on or before October

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20, 2017.

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IT IS SO ORDERED.

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Dated: September 28, 2017

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16cv1255-GPC(AGS)