Putative Class Action Alleging False Advertising Against Manufacturer did not Warrant Class Action Treatment Because Proposed Class was Overly Broad, not Readily Ascertainable, Plaintiff was not an Adequate Class Representative, Commonality was not Shown as Individual Issues would Predominate over Common Questions, and Class Action Device was not Superior Method of Resolving Dispute California Appellate Court Holds
Plaintiff filed a putative class action in California state court against Mecta Corporation, the manufacturer of an electro-convulsive therapy (ECT) machine, alleging violations of the state’s Unfair Competition Law (UCL) based on false advertising. Akkerman v. Mecta Corp., Inc., 152 Cal.App.4th 1094, 62 Cal.Rptr.3d 39, 42 (Cal.App. 2007). Plaintiff filed a motion to certify the litigation as a class action; defense attorneys argued that class action treatment was inappropriate for a litany of reasons. The trial court agreed with defense attorneys and refused to certify a class action finding that plaintiff “did not establish the elements for class certification; did not adequately define an ascertainable class; did not show that he could represent it; and did not demonstrate a sufficient community of interest among the class members.” Id. Further, class action treatment was inappropriate because “[t]he factual issues pertaining to each class member’s tort restitution claim predominate over common questions of law and fact for the class.” Id. The California Court of Appeal affirmed.
In 1999, plaintiff began receiving ECT treatments to address severe depression; plaintiff filed a putative class action against Mecta in federal court claiming that the electric shocks resulted in memory loss and impaired cognitive functioning. Akkerman, at 42. The class action claims alleged violations of California’s UCL, and the federal court remanded the class action causes of action to state court, id., at 43. Ultimately, the federal court ruled in favor of the defense on the remaining causes of action, id. Plaintiff also filed a state-court lawsuit against his doctor, id., at 42-43, but that, too, ultimately resulted in judgment for the defense, id., at 43. What remained, then, was plaintiff’s state-court UCL class action complaint against Mecta, which was premised on the allegations that his doctor “falsely represented” that the ECT treatments were “not harmful” based on “false information provided to him by Mecta.” Id., at 43-44.
Plaintiff’s motion for class certification defined the class as “all members of the public who have received shock treatment in California from MECTA devices after September of 1997.” Akkerman, at 44. The trial court agreed with the defense that class action treatment was not warranted, and “denied the motion ‘based on the inability to determine the class, and for failure to show other elements necessary for class certification.’” Id. Plaintiff then filed a motion asking the trial court to order hospitals that were not parties to the lawsuit to notify their patients that had received ECT treatments of the putative class action: the trial court initially granted the motion, but reversed that decision after an appellate court issued an alternative writ of mandate, id. Plaintiff appealed, arguing that the trial court erred in refusing to certify a class action and in refusing to order hospitals to give the pre-certification notice he requested. Each of these claims is reviewed for abuse of discretion, id.
The appellate court first held that “[d]enial of class certification was proper because [plaintiff] did not adequately define the class, nor did he prove that his claims were typical of those within it.” Akkerman, at 44. The class definition was overly broad because (1) the class action allegations only supported a narrower class – i.e., one consisting of “only ECT patients deceived by Mecta” (italics in original), (2) plaintiff failed to show that the class was ascertainable, and (3) did not claim that certain consent forms were inadequate, but included within his class definition patients who had executed such forms. Id., at 45. The appellate court also agreed that plaintiff was not an adequate class representative, noting that the pleadings in his action against his doctor suggested that his “individual claim involved medical malpractice, not Mecta’s false advertising,” and such a claim “differs substantially from the typical claims of class members who allegedly relied on Mecta’s booklet” in deciding to undergo ECT treatment. Id. In any event, class action treatment would be unmanageable because the class is “too amorphous”: “It would depend on the individual determinations of potentially thousands of medical ‘intermediaries’ who are not defendants or parties to this action and whose advice would necessarily ‘vary’ for each patient.” Id.
The Court of Appeal also agreed that a class action was inappropriate because common issues did not predominate. Akkerman, at 46-47. Establishing that each class member relied on Mecta false advertising would “present a multitude of problems,” and “a class action cannot be maintained if each individual’s right to recovery depends on facts peculiar to that individual.” Id., at 46 (citations omitted). Put simply, class action treatment is inappropriate if the class action “will splinter into individual trials” because in such cases individual questions predominate. Id. Finally, the appellate court concluded that a class action as not the superior means of resolving the disputes with Mecta, id., at 47. For all these reasons, the appellate court affirmed the judgment, id., at 48.
NOTE: The appellate court also rejected plaintiff’s argument that the hospitals should have been required to send a pre-certification notice to ECT patients about the class action. Akkerman, at 47-48. The court explained at pages 47 and 48: “A court order requiring a doctor to identify his or her psychiatric patients intrudes into an area protected by physician-patient confidentiality and the constitutional right of privacy. [Citations.] Even a party who shows a compelling need for such disclosure may not obtain it without proving that there are no other ‘less intrusive means of accomplishing’ the result. [Citation.]” The appellate court further explained that the hospitals were not parties to the class action and “had objected to the order on physician-patient confidentiality grounds” and on the grounds that: 1) such an order would be ‘unreasonably burdensome,’ 2) sending notices to the last known address of former ECT patients could compromise their privacy because many of them had moved, and 3) identifying ECT patients in the class would be difficult because many hospitals do not exclusively use Mecta machines and rely on ECT devices from a variety of manufacturers.” Id., at 48. The Court of Appeal characterized these concerns as “substantial,” and concluded that the trial court did not abuse its discretion in denying the motion. Id.
The appellate court also questioned plaintiff’s standing to pursue a UCL claim post-Proposition 64, because the judgments in the Santa Barbara case against the doctor and the federal case against Mecta failed to demonstrate that plaintiff had suffered any injury in fact. Akkerman, at 46.