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Delaney v. Warner-Lambert Co.3/26/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Plaintiffs and appellants John Delaney and Elliot Rosman appeal from an order denying class certification in this action based on the marketing of a diabetes medication by defendants and respondents Warner-Lambert Company and its subdivision Parke-Davis & Company (collectively WLC). Delaney and Rosman were both treated with WLC's diabetes medication Rezulin. They alleged WLC made false claims about the safety and effectiveness of Rezulin in press releases and print advertisements. The trial court denied their motion for class certification of unfair competition causes of action under the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.) (UCL) and the Consumers Legal Remedies Act (Civ. Code § 1750 et seq.) (CLRA). Delaney and Rosman contend the trial court abused its discretion by finding their claims were not typical of those of the class members. We conclude that the trial court's finding that the named plaintiffs were not personally aggrieved by the alleged unfair competition is supported by substantial evidence. Therefore, their claims are not typical of the class. We affirm.
FACTS AND PROCEDURAL BACKGROUND
Complaint
On March 31, 2000, Delaney filed a class action complaint against WLC individually, as representative of a class of similarly situated persons, and on behalf of the general public for violation of the CLRA, violation of the UCL and false advertising. Rosman was subsequently designated as an additional class representative. Delaney and Rosman alleged as follows. WLC advertised Rezulin as "safe" and "effective," when it was not safe, because Rezulin caused liver damage resulting in death, transplant, or the need for additional medical treatment. WLC violated the CLRA and the UCL in connection with the sale of Rezulin by: failing to adequately and completely disclose the risks inherent in Rezulin; failing to disclose patients' adverse reactions to Rezulin, including the true number of patients suffering from severe liver damage and other complications or death as a result of taking Rezulin; failing to disclose that the testing and monitoring procedures placed on the package inserts of Rezulin were ineffective to prevent patients taking Rezulin from suffering severe liver damage and other complications or death; and failing to disclose that other available medications for the treatment of diabetes were safer and did not pose the same health risks. WLC produced, advertised, and sold Rezulin as a safe and effective means of treating diabetes, even though WLC knew or should have known that Rezulin posed an unacceptable health and safety risk to class members, in that it caused liver damage and liver failure resulting in death or transplant. WLC advertised in magazines, medical journals, and on the internet that Rezulin was a safe and effective treatment for diabetes. WLC also falsely marketed Rezulin through advertising in Spanish publications in California by printing the merits of Rezulin in Spanish and the product warnings concerning the safety of the drug in English. WLC's failure to disclose material facts concerning the true nature of the risks associated with Rezulin resulted in the class members' purchase of Rezulin. The complaint made no specific allegations concerning the ineffectiveness of Rezulin. Delaney and Rosman assert that all revenue from the sale of Rezulin in California must be
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