Pharmaceutical Consumer Class Decertified

A class-action lawsuit filed in Pennsylvania state court seeking over $100 million in damages alleged that Warner-Lambert and Pfizer (which had acquired Warner-Lambert in 2000) engaged in improper off-label marketing of the drug Neurontin. Davis Polk & Wardwell, counsel to Pfizer, retained Cornerstone Research and Dr. Michael Keeley, a senior vice president at Cornerstone Research, to assess the validity of the plaintiffs’ economists’ reports on causation and damages. In a February 9, 2009 opinion, one month before trial was scheduled to begin, Judge Mark I. Bernstein granted the defendants’ motion to decertify the class.

Dr. Keeley and Cornerstone Research evaluated the econometric analysis of causation and the damage calculations put forth by the plaintiffs’ economists. Dr. Keeley showed that the plaintiffs’ econometric causation model, even if correct, did not address whether common evidence could be used to show that the allegedly off-label promotion affected each class member’s consumption of Neurontin. He also showed that the econometric model was deeply flawed and produced results that had no scientific reliability. Finally, Dr. Keeley showed that even if causation could be established, the plaintiffs’ damage approach was inconsistent with the record and could not show using common evidence whether each class member was harmed, or, if he or she were harmed, the magnitude of the harm. Judge Bernstein concluded, “Whether an individual class member suffered a compensable loss is an inherently individualized question which predominates making class resolution impracticable and possibly impossible.”