2016-00203874-CU-PL

Matt Gelso vs. Ca Pharmacy and Compounding Center, Inc.

Nature of Proceeding: Motion for Class Certification

Filed By: Van Dyke, Glen A.

Plaintiff Matt Gelso, Jr.’s (Gelso) motion for class certification is DENIED without prejudice.

Overview

In another context, the court described this action as follows:

This is a putative class action. The representative plaintiff is Matt Gelso, Jr. (Gelso). Gelso alleges that in 2014 he was diagnosed with macular degeneration and began receiving injections in his eyes. He alleges that [CPCC] compounded the injected drug–Bevacizumab–and sold it to [co-defendant] Vitreo, which administered the injections. Bevacizumab is an

“off label use of Avastin.” [Citation.]

According to Gelso, he received an injection from a syringe that CPCC supplied and that was contaminated with silicone. The contamination allegedly damaged his vision. He alleges Vitreo knew about CPCC’s history of quality control deficiencies. Vitreo performed the injections nonetheless and without warning. Vitreo allegedly failed to recall the CPCC syringes even after learning some were contaminated.

(Order of 12/14/17.) The operative fourth amended complaint (4AC) contains causes of action for strict products liability–failure to warn, strict products liability–defective product, professional negligence, breach of implied warranty, and violation of B&P Code §§ 17200 et seq.

In the 4AC, Gelso describes a class “composed of all those individuals who, as of the date of the filing of this Complaint, were injected with the AVASTIN in prefilled syringes from CPCC’s facilities which caused silicone to be injected into their eyes causing permanent damage to their vision.” (4AC, ¶ 25.) He alleges that this class consists of more than 1,000 individuals. Each of his five causes of action is brought on behalf of the class.

In the current motion, Gelso moves for an order certifying a narrower class than the one alleged in the 4AC, to wit, “[a]ll persons who received Avastin injections into their eyes from prefilled syringes prepared by CPCC from November 23, 2015 to November 23, 2016 which resulted in permanent silicone oil droplets being deposited into their eyes.” (Not. of Mot. at 1:28-2:2.) Gelso cites CPCC’s discovery responses identifying approximately 50 individuals whose physicians made reports to CPCC after discovering silicone droplets in their eyes. (See Van Dyke Decl., Exhs. 1, 2.)

Legal Standards

“Section 382 of the Code of Civil Procedure authorizes class suits in California when ‘the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court.’ The burden is on the party seeking certification to establish the existence of both an ascertainable class and a well-defined community of interest among the class members. [Citations.]” (Washington Mutual Bank v. Superior Court (2001) 24 Cal.4th 906, 913.) “[A] certification motion may be granted where there is ‘an ascertainable class and a well-defined community of interest among class members.’” (Noel v. Thrifty Payless, Inc. (2017) 17 Cal.App.5th 1315, 1324.)

“The ascertainability requirement is a due process safeguard, ensuring that notice can be provided ‘to putative class members as to whom the judgment in the action will be res judicata.” [Citation.] “Class members are ‘ascertainable’ where they may be readily identified without unreasonable expense or time by reference to official records. [Citations.]”.) In determining whether a class is ascertainable, the trial court examines the class definition, the size of the class and the means of identifying class members.” (Sotelo v. Medianews Group, Inc. (2012) 207 Cal.App.4th 639, 647-648.)

“The party seeking class certification has the burden of establishing that the prerequisites are present. [Citations.] ‘[S]atisfaction of that burden requires that the plaintiff establish more than “a reasonable possibility” that class action treatment is

appropriate.’ [Citation.]” (Miller v. Bank of America, N.A. (2013) 213 Cal. App. 4th 1,

7.) “Class certification is properly denied for lack of ascertainability when the proposed definition is overbroad and the plaintiff offers no means by which only those class members who have claims can be identified from those who should not be included in the class.” (Id.)

Discussion

CPCC argues Gelso has failed to demonstrate the existence of an ascertainable class, and the court agrees. As noted above, the moving papers refer to a class narrower than the one in the 4AC. Gelso’s focus is primarily a subset of this narrower class, i.e., the 50 or so patients whose physicians reported directly to CPCC. Although CPCC’s discovery does not identify these patients by name, Gelso argues he can ascertain their identities by subpoenaing the physicians who are identified in discovery. But Gelso also contends that there are probably more class members, since not all patients who experienced problems with silicone in their eyes complained to CPCC. (See Van Dyke Decl., ¶ 6.) In other words, the moving papers do not contemplate a class limited to the 50+ individuals whose doctors made reports to CPCC.

In the opposition, CPCC argues that the class described in the 4AC and the narrower class described in the moving papers include patients from 20 states nationwide, all with potentially different rules governing disclosure of medical information. CPCC also points to HIPAA, which further complicates discovery of identities of patients within any proposed class. Moreover, because CPCC does not possess a list of all patients whose physicians use its products, CPCC cannot identify class members from its own resources. CPCC thus argues the class tendered with the moving papers is not readily ascertainable because any means for identifying class members present significant obstacles.

In reply, Gelso does not argue that the identities of class members other than the 50 or so whose physicians reported to CPCC are readily ascertainable. Instead, it suggests a further refinement of the class definition so that the class consists solely of the 50+ patients whose physicians reported to CPCC. The problems with this suggestion are that (1) it appears Gelso is not a member of such a class, since he did not complain to CPCC about his alleged injuries, and (2) CPCC has not had a fair opportunity to respond to the suggestion.

The court will not speculate about how CPCC might respond to a proposal limiting the class to the 50+ patients whose doctors reported to CPCC. Nor will it in the first instance raise the issue whether Gelso could adequately represent such a class. The better course is for Gelso to rethink the class he wishes to certify and allow him to bring a motion focused on that class. CPCC can then respond in due course.

The court does not address the parties’ further arguments in support of or in opposition to the motion.

CPCC’s objections to the Van Dyke Declaration are overruled.

The court need not rule and does not rule on CPCC’s objections to the Gelso Declaration.