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Strike Three; You're Out!

By James M. Beck and Mark Herrmann

It only took five years and two reversals on appeal, see In re St. Jude Medical, Inc., 425 F.3d 1116, 1119-21 (8th Cir. 2005); In re St. Jude Medical, Inc., 522 F.3d 836 (8th Cir. 2008), but the class action allegations in the St. Jude/Silzone litigation are finally history. The trial court reluctantly ("on a blank slate" the court would have certified the class, yet again) struck those allegations the other day. Here's a copy of the opinion. In the wake of the latest reversal (which we discussed here), the plaintiffs had tried to substitute "omissions" for affirmative misrepresentations in their allegations, but even a class-action-friendly judge couldn't stomach that hair splitting.

We doubt the Eighth Circuit would permit a third Rule 23(f) interlocutory appeal.

The long-running St. Jude saga is an excellent example of why class-action tolling of the statute of limitations in mass tort cases is inequitable and should not be allowed, a subject we've discussed before (just click on our "tolling" label on the right hand side of the screen (scroll down) for those posts). There's no way in logic or law that dilatory plaintiffs suing over this device should be entitled to over five years of tolling based upon meritless allegations of a supposed nation-wide class based upon extraterritorial application (questionable in and of itself) of one state's consumer fraud statute.

Full post as published by Drug and Device Law on June 25, 2009 (boomark / email).