Consumer Class Actions in New York - New York City Bar Association

Class certification has been granted in a tort case where the relief sought was
injunctive, not monetary. Thus, individual issues did not defeat certification in Cunningham
v. American Home Products, 9/21/99, N.Y.L.J 26 (col.5)(S.Ct.N.Y.Co.), which was a diet
drug products liability action. In this case, plaintiffs sought the establishment of a courtsupervised
medical monitoring program for FDA-recommended medical testing that was
being conducted evaluate the long term effects of the use of certain diet drugs. The class
consisted of consumers of fenfluramine, dexfenfluramine and phentermine who had not yet
manifested any of the health problems associated with the drugs. Defendants opposed
certification on the grounds that individual issues concerning exposure predominated. The
court described the defendants’ position as follows:
[A]ny approach that treats all class members as a group
ignores the many variable such as length of exposure,
preexisting conditions, and medical history, existing monitoring
protocols and the fact that a number of consumers have
already undergone testing. They claim that plaintiffs=
approach assumes that a uniform medical surveillance regimen
would be used for every class member. In addition,
defendants claim that the reliance factor varies significantly.
Id. The court rejected defendants= argument, stating that Aalthough a uniform monitoring
regimen may not be appropriate, that does not mean that common questions do not
predominate, particularly where, as here, plaintiffs seek injunctive relief, not damages.” Id.
The court continued:
All parties have an interest in establishing the fund for
monitoring and surveillance. All class members are threatened
by defendants= alleged failure to test for and disclose adverse
effects of fenfluramine drugs. All prospective class members
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