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Gross v. Johnson & Johnson-Merck Consumer Pharmaceuticals Co.

February 5, 1997

BERNARD GROSS, STEPHEN FEINBERG, PATRICIA M. DIMARCO AND LORETTA LENTO, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
JOHNSON & JOHNSON-MERCK CONSUMER PHARMACEUTICALS CO., JOHNSON & JOHNSON AND MERCK & CO., INC., DEFENDANTS.



Wells, III, A.j.s.c.

The opinion of the court was delivered by: Wells

OPINION

WELLS, III, A.J.S.C.

This is a case involving a consumer fraud lawsuit against Johnson & Johnson-Merck Consumer Pharmaceuticals (hereinafter "J&J") for its allegedly false advertising of a product it manufactures and markets called Pepcid AC (hereinafter "Pepcid"). Plaintiffs seek through the instant motion to represent a nationwide class of persons who between June 12, 1995, and October 20, 1995, purchased Pepcid and suffered ascertainable losses, including at the minimum purchasing Pepcid when they would not otherwise have done so or at prices they would not otherwise have paid.

Pepcid is a relatively new non-prescription product which is designed to prevent heartburn and acid indigestion. Between June 12, 1995, and October 20, 1995, J&J ran a nationwide advertisement campaign *fn1 for Pepcid. Plaintiffs assert that J&J violated the consumer protection statutes of all U.S. states, including N.J.S.A. 56:8-1 through -48 and committed common law fraud and/or negligent misrepresentation. The advertisements that plaintiffs allege were inaccurate and misleading are:

(1) 8 out of 10 doctors and pharmacists chose Pepcid AC acid controller over Tagamet HB;

(2) Pepcid controls acid for 9 hours- all day or all night; and,

(3) Only Pepcid AC has proven that it can prevent heartburn and indigestion.

J&J blanketed the marketplace with air and print media containing a wide variety of claims promoting Pepcid, most of which have never been challenged. Two of the three claims that plaintiffs now challenge (see above) were enjoined in a lawsuit with SmithKline Beecham in October and December of 1995. *fn2 J&J states that none of these three claims was published in May of 1995, nor have they aired since November of 1995.

After consideration of the briefs submitted and the argument of counsel, I conclude that class certification should be denied, as individual questions of law and fact predominate over those common to the proposed class. While recognizing the strong preference of the New Jersey courts in favor of granting class certification, this case is distinguishable from the situation envisioned by our courts as appropriate for class action Disposition.

As a general matter, New Jersey courts, as well as federal courts construing the federal class action rule after which our rule is modeled, have consistently held that the rule must be liberally construed and that the proposed class action be permitted unless there is a clear showing that it is improper or inappropriate. Riley v. New Rapids Carpet Center, 61 N.J. 218, 228, 294 A.2d 7 (1972); In Re Cadillac V8-6-4 Class Action, 93 N.J. 412, 435 (1983); Delgozzo v. Kenny, 266 N.J. Super. 169, 179, 628 A.2d 1080 (App. Div. 1993). Also, the determination of class certification must be made with reference to the criteria for maintaining a class action. Plaintiff's chances of winning on the merits are irrelevant. Delgozzo, 266 N.J. Super. at 180-81.

The requirements for class action suits are governed by Rule 4:32. The requirement to qualify for class certification consists of a two-step process. The prerequisites that first must be satisfied under R. 4:32-1(a) are: (1) numerosity; (2) questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of those of the proposed class; and (4) the representatives will fairly and adequately protect the interests of the class. Second, these four elements are met, then under subsection (b) of the rule one of three alternatives for the maintainability of the class action must be satisfied. The plaintiffs in this case seek to certify their proposed class under R. 4:32-1(b)(3) which requires both the predominance of common questions of law or fact over questions affecting only the individual members, and the superiority of a class action over other available methods of adjudication. The factors pertinent to a (b)(3) finding include the interests of the class members in individually controlling the prosecution or defense of separate actions, the extent and nature of any litigation concerning the controversy already commenced by or against members of the class, and the difficulties likely to be encountered in the management of a class action. R. 4:32-1(b)(3).

Plaintiffs assert that they have satisfied all of the prerequisites for class certification set forth in R. 4:32-1(a), and I agree. First, the R. 4:32-1(a)(1) requirement of numerosity of proposed plaintiffs is met here. See, e.g., Delgozzo, 266 N.J. Super. at 184 (potential class of 35,000 members); Saldana v. City of Camden, 252 N.J. Super. 188, 193, 599 A.2d 582 (potential class of 81 members). Plaintiffs have alleged in their complaint "thousands of members of the class . . .," and through the discovery process they claim they will establish with more specificity the identity of the potential members.

Next, the R. 4:32-1(a)(2) requirement of commonality of questions of law or fact is also met here. To meet this requirement under subsection (a), the class as a whole must raise at least one common question of law or fact. Phillip Steven Fuoco, Robert F. Williams, Class Actions in New Jersey State Courts, 24 Rutgers L.J 737, 752 (1993). In this instance the entire class alleges a common theory of liability under claims of misrepresentation of advertising by J&J leading to their injuries. Common facts are present as ...


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