Plaintiffs in a federal Cymbalta lawsuit have failed in their second attempt to get class certification for certain consumers who bought the antidepressant Cymbalta.

In denying the plaintiffs’ second motion for class certification, Judge Stephen Wilson said that while the plaintiffs had resolved the deficiencies in their proposed method for determining damages, they still had not showed that damages across the entire class were caused by the alleged misrepresentations by defendant Eli Lilly.

The plaintiffs’ Cymbalta lawsuit is not directly based on personal injury related to Cymbalta withdrawal. Rather, the group of plaintiffs claim they were overcharged for the drug because manufacturer Eli Lilly allegedly misrepresented safety information on the U.S. label for Cymbalta. The warning on the U.S. label says that in clinical trials, withdrawal symptoms occurred “at a rate greater than or equal to 1%.” Plaintiffs claim that the actual likelihood of withdrawal symptoms is closer to 44 percent.

The tricky part of that theory, and the problem that plaintiffs have now failed twice to resolve to the court’s satisfaction, lies in proving how much value (measured in dollars) the members of the purported class lost as a result of Lilly’s alleged misrepresentations.

First Attempt At Class Certification

Plaintiffs first sought class certification in August 2013, proposing three subclasses of plaintiffs from New York, Massachusetts, and Missouri. Part of their proposal for class certification was based on an expert witness’ method of calculating damages, which was based on survey data showing how consumers value a particular product.

However, Judge Wilson was thoroughly dissatisfied with the plaintiffs’ proposed method of determining damages. The judge saw the proposed method, based on consumers’ own valuation of the product, as being essentially subjective. He did not see that calculation of damages according to the plaintiffs’ theory would be a predominating common question of fact, given the wide variance among individual plaintiffs’ actual damages as determined by unique factors such as insurance coverage and price variance.

The judge also did not see how the plaintiffs could prove causation on a basis common to all members of the class. Given an apparent need to calculate damages on an individual basis, the court foresaw complications great enough to preclude management of the case as a class action.

Second Attempt Denied

In their second attempt at certification, the plaintiffs came back with a much more straightforward damage calculation: asserting state consumer protection laws, they proposed to seek $50 in damages for members of the proposed New York class and $25 for those of the Massachusetts class. Judge Wilson approved this simpler damages determination. However, he said the plaintiffs still failed to adequately address the matter of causation. He found they had failed to show how causation could be proved in a way common to ten years’ worth of Cymbalta patients from different states, each of whose price for Cymbalta had been determined by a broad variety of varying factors.

This Cymbalta Lawsuit is Case no. 2:12-cv-, the U.S. District Court for the Central District of California.