In re Bendectin Products Liability Litigation

Numerous individuals (plaintiffs) sued Merrell Dow Pharmaceuticals, Inc. (Merrell) (defendant) for birth defects they suffered after in utero exposure to the prescription drug Bendectin, which was manufactured by Merrell and prescribed to treat pregnancy-related nausea. The plaintiffs brought their various actions in federal and state courts, but the Judicial Panel on Multidistrict Litigation transferred and consolidated the federal cases in the Southern District of Ohio for discovery and pretrial proceedings. The district-court judge considered certifying a class action for the pending cases but ultimately determined that class certification was not appropriate, and the cases proceeded to a consolidated trial. Shortly after a jury was impaneled, serious settlement negotiations between Merrell and the plaintiffs’ lead counsel committee prompted the district-court judge to recess the trial and certify the plaintiffs as a class under Federal Rule 23(b)(1)(A) and 23(b)(1)(B) solely for settlement purposes. The district court opined that class certification was appropriate on the grounds that individual determinations ran the risk of inconsistent standards of conduct for Merrell and the risk that all of the claims might not be satisfied from the potentially limited fund available. Without holding a fact-finding inquiry on the issue of a limited fund, the district court certified a class of all individuals exposed to Bendectin for the purposes of settlement with no opportunity to opt-out. Some of the parties (objectors) opposed the class-action certification and accordingly petitioned for a writ of mandamus to vacate the district court’s order.