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Daniel Haggart, Inc v. Endogastric Solutions

June 28, 2012


The opinion of the court was delivered by: Chief Magistrate Judge Lisa Pupo Lenihan

ECF No. 48



As noted in the Court's previous Opinion, the claims presently before this Court in this action relate to Plaintiff's allegations that he suffered from gastroesophageal reflux disease ("GERD") managed acceptably through pharmaceuticals and without surgery for many years. He was a candidate for surgical intervention through a "Nissen Fundoplication" but had reservations regarding that device's permanence and potential side effects. Plaintiff learned of Defendant's alternative device, the "EsophyX", used in transoral incisionless fundoplications. He attests that he relied on representations made by Defendant in its website, brochures and other advertising regarding the "reversibility" of the insertion of this device in electing to have the procedure performed in Pittsburgh in June, 2009.*fn1 Three months later, the surgeon advised that the procedure had failed (i.e., the device had come apart) and recommended that Plaintiff proceed with the Nissen Fundoplication. Plaintiff attests he then learned the procedure was not truly "reversible" but only "revisable" (i.e., it could not be completely undone because tissue had grown around the fasteners), and he was foreclosed from other previously-available treatment options. The Nissen Fundoplication was performed, on the advice of Plaintiff's treating physician, in February, 2010 and Plaintiff attests that his symptoms have worsened. Plaintiff initially averred that "more than a thousand individuals have undergone the EsophyX procedure in various states, including Pennsylvania, and many more will continue to undergo this procedure in the future." Amended Complaint at Para. 71. More recently, he notes that "[a]s of June 1, 2011, the number of patients who have undergone the procedure stood at 5,842." Plaintiff's Brief in Support of Motion for Class Certification (hereafter "Plaintiff's Brief in Support") at 5. He concedes that the procedure has been successful for "most other members of the prospective class." Id. at 20.

Presently pending is Plaintiff's Motion for Class Certification which, for reasons among those briefed by Defendants and as set forth below, will be denied.


The class-action device is "an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only." Califano v. Yamasaki, 442 U.S. 682, 700-- 01 (1979). Class relief is "peculiarly appropriate" when the "issues involved are common to the class as a whole" and when they "turn on questions of law applicable in the same manner to each member of the class." Id. at 701. It is appropriate in cases where it "saves the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion under Rule 23." Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 155, (1982) (quoting Califano, 442 U.S. at 701).

Class certification is proper only if the trial court is satisfied that the prerequisites of Rule 23 are met. See, e.g., In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305, 309 (3d Cir. 2008) (citing Gen Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982)). To meet the prerequisites of Rule 23, a plaintiff must establish both that the four requirements of Rule 23(a) have been met-numerosity, commonality, typicality, and adequacy-and that the pleading requirements of Rule 23(b)(1), (2), or (3) have been met. See generally Fed. R. Civ. P. 23. The plaintiff bears this burden by a preponderance of the evidence. See, e.g., Hydrogen Peroxide, 552 F.3d at 320. In analyzing whether Rule 23's requirements have been met, the Court makes the factual and legal inquiries necessary and considers all relevant evidence and arguments presented by the parties. Id. at 307.

A. Plaintiff's Proffered Alternative Class Definitions Fail to Comport with Class Definition Requirements and/or the Prerequisites of Rule 23(a)

A threshold requirement to a Rule 23 action is the actual existence of a class which is sufficiently definite and identifiable. See, e.g., Kline v. Sec. Guards, Inc., 196 F.R.D. 261, 266 (E.D. Pa. 2000); Reilly v. Gould, Inc., 965 F. Supp. 588, 596 (M.D. Pa. 1997); Clay v. Am. Tobacco Co., 188 F.R.D. 483 (S.D. Ill. 1999). The initial inquiry on class definition is distinct from the analysis required by Federal Rule of Civil Procedure 23. See, e.g., Sanneman v. Chrysler Corp., 191 F.R.D. 441, 446 n. 8 (E.D. Pa. 2000).

The four prerequisites to a class action, under Federal Rule of Civil Procedure 23(a), are:

(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. As a shorthand, courts regularly refer to the prerequisites as numerosity, commonality, typicality, and adequacy of representation. See, e.g., In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 527 (3d Cir. 2004); Georgine v. Amchem Prods., Inc., 83 F.3d 610, 624 (3d Cir.1996), aff'd sub nom. Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997). All four Rule 23(a) prerequisites for class certification serve as "guideposts for determining whether maintenance of a class action is economical and whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence." Amchem, 521 U.S. at 626.

1. Class Defined as Those Who Relied on Representations Related to Reversibility or Revisability

Plaintiff's proposal of an alternative class defined as "all individuals who have undergone the EsophyX [procedure] . . . and who have relied upon representations" related to its reversibility and/or revisability,*fn2 is simply a "non-starter". This alternative class definition is untenable because it is not objectively, reasonably ascertainable. And even if it met this threshold criteria, which the Court concludes it does not, Plaintiff has not met his ...

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