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Cheminova America Corporation v. Corker6/30/2000
These appeals are from a class-certification order, filed pursuant to Act No. 99-250, Ala. Acts 1999, codified at §§ 6-5-640 through -642, Ala. Code 1975 (Cum. Supp. 1999). The Act requires a trial court to hold a "full evidentiary hearing" on class certification under Rule 23, Ala. R. Civ. P. This Court has consistently held that a trial court's class-certification order is to be reviewed by an abuse-of-discretion standard. Ex parte Government Employees Ins. Co., 729 So. 2d 299, 303 (Ala. 1999). We find no abuse of discretion in the court's entering the class-certification order; therefore, we affirm.
The trial judge held a full evidentiary hearing, which met the requirements of §§ 6-5-640 through -642. The trial judge made the following findings of fact:
"For the purpose of certification, the court should not conduct a mini trial on the merits of the litigation. Consequently, the court finds the following facts only to the extent that they aid the Court in deciding the issues of certification.
"Skin Cap was a product manufactured by Defendant Cheminova International, S.A., a corporation head-quartered in Madrid, Spain. Defendant Cheminova America is a corporation with its principal place of business in South Florida, which served as the American distributor of Skin Cap.
"Skin Cap was an over-the-counter medication which purportedly contained the ingredient zinc pyrithione. While the label of the product did not contain any reference to psoriasis, beginning in 1996 there was widespread discussion about the use of the product as a psoriasis treatment.
"In early 1997, Defendant Acuderm, Inc. began promoting and distributing Skin Cap for Cheminova America. On March 6, 1997, Acuderm and Cheminova America entered into a letter agreement whereby Acuderm became a non-exclusive medical distributor of Skin Cap. While Acuderm did not promote Skin Cap as a psoriasis treatment, it was clear that it intended to and did market the product for use as a psoriasis treatment. Prior to entering into a letter agreement with Cheminova, Acuderm was aware of concerns and rumors that Skin Cap contained a steroid, and specifically obtained assurances from the manufacturer, Cheminova, that this product was safe and contained no steroids. Acuderm purchased and sold approximately 22,000 units of Skin Cap pursuant to its agreement with Cheminova America.
"Even before Acuderm began selling Skin Cap, rumors persisted that Skin Cap contained steroids. However, acuderm's literature specifically stated that the product was steroid free.
"On August 13, 1997 Acuderm received from the Federal Food and Drug Administration (`FDA') a warning statement dated August 8, 1997, stating that Skin Cap contained a potent corticosteroid and should not be used without a physician's supervision. On September 11, 1997, Acuderm agreed to recall all its Skin Cap products. Pursuant to that recall, Acuderm agreed to reimburse physicians and patients for any unused Skin Cap products. However, shortly thereafter, Acuderm soon refused to reimburse its customers for their Skin Cap purchases.
"The FDA tested several samples of the Skin Cap product, and on each occasion found high levels of super potent corticosteroids in the product.
"Acuderm sold the product directly to users, and also sold it to pharmacies such as Nixon Drugs. Acuderm maintains, and has produced in discovery, invoices and billing information providing the name, address and purchase price of products sold to each of its direct customers.
"Plaintiff Iris Corker was first told of Skin Cap by her dermatologist, Dr. Charles Behlen, around June, 1997. Ms. Corker purchased the
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