A federal court in Missouri has denied class certification in multidistrict litigation (MDL) seeking certification of a putative class of consumers who purchased plastic products containing bisphenol A (BPA). In re: Bisphenol-A Polycarbonate Plastic Prods. Liab. Litig., MDL No. 1967 (W.D. Mo. 7/5/11). Plaintiffs alleged that manufacturers of plastic products for infants failed to warn consumers of the dangers of BPA despite their knowledge of its alleged toxicity. They sought certification of single state and multi-state classes with groupings based on the similarity of state consumer fraud statutes and unjust enrichment law. The Judicial Panel on Multidistrict Litigation centralized the cases in the U.S. District Court for the Western District of Missouri in 2008.
Denying class certification to plaintiffs in 24 cases, the court ruled that they could not satisfy Federal Rule of Civil Procedure 23’s commonality, predominance and superiority requirements. The court focused primarily on commonality, citing Wal-Mart Stores, Inc. v. Dukes, No. 10-277 (U.S. 6/20/11). According to the court, there are “immense difficulties” in ensuring the accuracy of plaintiffs’ claims about similarities in law among the states in their proposed multi-state classes. The court also found that individual damages issues predominate over common issues, such as the “content of any particular defendant’s advertising” or “[e]ach defendant’s knowledge, over time, about the science regarding BPA.” The court delayed remand until one or more cases have been litigated through final judgment and said it would consider certifying a Missouri-only class after further briefing.