In re Vioxx Products Liability Litigation

ORDER & REASONS

Before the Court is the Plaintiffs’ Steering Committee’s (“PSC”) Motion for Certification of a Nation-Wide Class Action for Personal Injury and Wrongful Death (Rec.Doe.2171). The Court heard oral argument and took this motion under submission. For the following reasons, the PSC’s motion is DENIED.

I. BACKGROUND

This multidistrict products liability litigation involves the prescription drug Vioxx, known generically as Rofeeoxib. Merck & Co., Inc. (“Merck”), a New Jersey corporation, researched, designed, manufactured, marketed, and distributed Vioxx to relieve pain and inflammation resulting from osteoarthritis, rheumatoid arthritis, menstrual pain, and migraine headaches. On May 20, 1999, the Food and Drug Administration (“FDA”) approved Vioxx for sale in the United States. Vioxx remained on the market until September 30, 2004, at which time Merck withdrew it from the market when data from a clinical trial known as APPROVe indicated that the use of Vioxx increased the risk of cardiovascular thrombotic events such as myocardial infarctions (heart attacks) and ischemic strokes. Thereafter, thousands of individual suits and numerous class actions were filed against Merck in state and federal courts throughout the country alleging various tort and products liability claims. It is estimated that 105 million prescriptions for Vioxx were written in the United States between May 20,1999 and September 30, 2004. Based on this estimate, it is thought that approximately 20 million patients have taken Vioxx in the United States.1

On February 16, 2005, the Judicial Panel on Multidistrict Litigation (“JPML”) conferred multidistrict litigation status on Vioxx lawsuits filed in federal court and transferred all such cases to this Court to coordinate discovery and to consolidate pretrial matters pursuant to 28 U.S.C. § 1407. See 360 F.Supp.2d 1352.2 This multidistrict litigation is designated MDL-1657 and is captioned In re Vioxx Products Liability Litigation. The first status conference in this MDL was held on March 18, 2005. Shortly thereafter, the Court appointed committees of counsel to represent the parties and discovery in this litigation commenced.3 Conferences to review the status of the proceedings and to deal with various issues coming before the Court have been held on a monthly basis.4

*453In addition to thousands of individual claims, this MDL currently includes over 160 class actions emanating from nearly every state. These class actions allege three types of claims: (1) personal injury and wrongful death claims; (2) medical monitoring claims; and (3) purchase claims. On June 2, 2005, the Court issued Pretrial Order No. 16 which directed the PSC to file master complaints in this Court with respect to each type of class action. Accordingly, on August 2, 2005, the PSC filed a Master Class Action Complaint for Cases Involving Personal Injury and Wrongful Death. The PSC also filed a Medical Monitoring Master Class Action Complaint and a Purchase Claims Master Class Action Complaint, however these two putative class actions are not presently before the Court. Thus, this opinion deals only with the personal injury and wrongful death class actions.

Master complaints help the Court and the parties focus on common issues in an efficient and effective manner and they apply to all pending class actions and to those subsequently filed, removed, or transferred to this Court as part of MDL 1657. In the Master Class Action Complaint for Cases Involving Personal Injury and Wrongful Death (“Master Complaint”), the PSC alleges that Vioxx was a defective product; that Merck misrepresented the safety of Vioxx and negligently manufactured, marketed, advertised, and sold Vioxx as a safe prescription medication, when in fact Merck knew or should have known that Vioxx was not safe for its intended purpose; and that Vioxx caused serious medical problems, and in certain patients, catastrophic injuries, and death.

On December 8, 2005, the PSC filed the instant motion to certify a nationwide class action under Rule 23(b)(3) of the Federal Rules of Civil Procedure consisting of:

All persons residing in the United States who took Vioxx in any dose at any time between May 20, 1999 when Vioxx was first approved by the United States Food & Drug Administration (“FDA”), and September 30, 2004, when Vioxx was withdrawn from the market, and who claim personal injuries or assert wrongful death claims arising from ingestion of Vioxx.

The PSC presents Rosemary Lawrence and Raymond Gibney, both New Jersey residents, as class representatives on behalf of themselves and all others similarly situated in the United States. Ms. Lawrence is a 59-year-old woman who took Vioxx for at least eight months and suffered a pulmonary embolism on July 30, 2002. Mr. Gibney is a 76-year-old man who took Vioxx for approximately one year and suffered a heart attack on December 29, 2002. Both Ms. Lawrence and Mr. Gibney allege that their injuries were caused by Vioxx.

The PSC contends that New Jersey substantive law can and should be applied to all personal injury and wrongful death claims made by United States residents. The basic thrust of the PSC’s argument in favor of applying New Jersey products liability law is that (1) Merck is headquartered in New Jersey and, thus, all of its decisions regarding the manufacturing, testing, labeling, marketing, and advertising of Vioxx originated in and emanated from New Jersey and (2) New Jersey has a unique and strong interest in regulating the conduct of its corporate citizens and specifically in deterring wrongful conduct by New Jersey pharmaceutical companies.

*454Merck opposes certification of a nationwide class action on two grounds. First, Merck argues that the proposed class members’ claims must be adjudicated under the substantive laws of the states in which they resided, ingested, and were allegedly injured by Vioxx and, thus, there is no commonality of law. Second, Merck contends that certification is inappropriate because each plaintiffs claim involves separate and distinct factual issues.5

II. LAW & ANALYSIS

Before determining whether a nationwide class action may be certified under Rule 23 of the Federal Rules of Civil Procedure, the Court must first determine which state’s or states’ substantive law will govern the class. See Spence v. Glock, 227 F.3d 308, 311 (5th Cir.2000); Castano v. Am. Tobacco Co., 84 F.3d 734, 741-42 (5th Cir.1996). To make this determination, the Court must conduct a choice-of-law analysis. Each state has its own choice-of-law rules that its courts use to select the applicable law. Therefore, the Court must first decide which state’s choice-of-law rules to apply. The Court will then apply these rules to determine which state’s or states’ substantive law will govern the class. Only then can the Court determine whether or not the putative nationwide class of Vioxx users satisfies the requirements of Rule 23.

A. CHOICE OF LAW

i. Selecting the Applicable Choice-of-Law Rules

Federal courts sitting in diversity must apply the choice-of-law rules of the forum state. Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). In MDL cases, the forum state is typically the state in which the action was initially filed before being transferred to the MDL court. In the present case, the proposed class representatives originally filed their class action complaint in the United States District Court for the District of New Jersey; however, the PSC also subsequently filed a Master Complaint in this Court. Therefore, the Court could conceivably apply the choice-of-law rules of either New Jersey or Louisiana.

In In re Propulsid Products Liability Litigation, 208 F.R.D. 133, 140-41 (E.D.La. 2002), this Court was faced with the similar decision of whether to apply Indiana or Louisiana choice-of-law rules in an MDL class certification proceeding. In Propulsid, the Court determined that a master complaint is only an administrative device used to aid efficiency and economy and, thus, should not be given the status of an ordinary complaint. Id. Accordingly, the Court looked to the underlying Indiana complaint and applied Indiana’s choice-of-law rules. Id. at 142.6

*455The Court finds no reason to depart from its prior holding, especially given that the parties in this case have not urged the Court to reconsider its view and apparently agree that New Jersey choice-of-law rules should be applied. Therefore, the Court will once again look to the specific action brought before it for class certification—the New Jersey complaint—and will apply New Jersey’s choice-of-law rules to determine which state’s or states’ substantive law would govern the proposed nationwide class.

ii. Selecting the Applicable Substantive Law

New Jersey applies a flexible “governmental interests” choice-of-law test to determine which state has the greatest interest in governing the specific issue in the underlying litigation. See Erny v. Estate of Merola, 171 N.J. 86, 792 A.2d 1208, 1216 (2002); Fu v. Fu, 160 N.J. 108, 733 A.2d 1133, 1138 (1999); Veazey v. Doremus, 103 N.J. 244, 510 A.2d 1187, 1189 (1986). New Jersey’s governmental interests test is a two-step inquiry. The first step is to determine whether an actual conflict exists between the laws of New Jersey and any other state with an interest in the litigation. Erny, 792 A.2d at 1216; Fu, 733 A.2d at 1138; Veazey, 510 A.2d at 1189. In the present case, both the PSC and Merck acknowledge that there are conflicts between the law of New Jersey and the laws of the other fifty jurisdictions in regard to negligence, strict liability, failure to warn, learned intermediary, and defective design. The Court agrees, and therefore will advance to the second step.

The second step of New Jersey’s governmental interests test is to determine which state has the most significant relationship to the occurrence and to the parties. Fu, 733 A.2d at 1138. In reaching this decision, the Court must identify the governmental policies of each state and how those policies are affected by the states’ contacts to the litigation and to the parties. Id. at 1138-39. There are five factors that the Court must use to guide its decision: (1) the interests of interstate comity; (2) the interests underlying the field of tort law; (3) the interests of the parties; (4) the interests of judicial administration; and (5) the competing interests of the states. Id at 1140-41. The third and fourth factors are the least significant. Erny, 792 A.2d at 1217. The fifth factor is the most important factor. Fu, 733 A.2d at 1142. The Court will now consider these five factors to determine which state has the most significant relationship to the occurrence and to the parties and, therefore, which state’s or states’ substantive law will govern the class.7

a. Interests of Interstate Comity and Tort Law

In this case, the interests of interstate comity and tort law, the first two factors, merge and will be considered together. The interests of interstate comity, the first factor, require the Court to consider whether the application of one state’s law will frustrate the policies of other interested states. Fu, 733 A.2d at 1141. In the present case, the issue before the Court is not whether a specific aspect of a state’s law, such as the learned intermediary doctrine or punitive damages, should be applied, but whether the entire scope of one state’s products liability law, and all aspects arising thereunder, should be applied to the class. Thus, this situation requires the Court to consider the purpose of products liability laws in general, rather than just the purpose behind a specific state law.8

*456The interests underlying the field of tort law, the second factor, require the Court to consider the degree to which deterrence and compensation, the two fundamental goals of tort law, would be furthered by the application of one state’s law versus the application of every state’s law. Fu, 733 A.2d at 1141. Not surprisingly, products liability laws are motivated by the same underlying purposes as the field of tort law in general, and therefore the interests of interstate comity and the interests underlying the field of tort law align in this case. See Bussell v. De Walt Prods. Corp., 259 N.J.Super. 499, 614 A.2d 622, 628-29 (Ct.App.Div.1992).

With regard to these two factors, the Court finds that each plaintiffs home jurisdiction has a stronger interest in deterring foreign corporations from personally injuring its citizens and ensuring that its citizens are compensated than New Jersey does in deterring its corporate citizens’ wrongdoing. See In re Ford Motor Co. Ignition Switch Prods. Liab. Litig., 174 F.R.D. 332, 348 (D.N.J. 1997); Laufer v. U.S. Life Ins. Co., No. L-9082-04, 2005 WL 1869211, at *8-9 (N.J.Super. Ct. Law Div. Aug. 8, 2005); Bussell, 614 A.2d at 628-29. These interests arise by virtue of each state being the place where the plaintiffs reside and, therefore, the states in which the plaintiffs were prescribed Vioxx, where the plaintiffs ingested Vioxx, and where the alleged injuries occurred. See In re Ford Ignition Switch, 174 F.R.D. at 348; Laufer, 2005 WL 1869211, at *8. Therefore, the Court finds that the first and second factors weigh in favor of applying the law of each plaintiffs home jurisdiction to his or her respective claims.9

*457b. Interests of the Parties

The interests of the parties, the third factor, require the Court to consider each party’s justified expectations and the need for predictability of result. Erny, 792 A.2d at 1217; Fu, 733 A.2d at 1141. This factor often plays a small role in the field of tort law because a party who causes an unintentional injury is generally not cognizant of the law that may be applied. See Erny, 792 A.2d at 1217; Fu, 733 A.2d at 1141. Nevertheless, the Court finds that this factor supports Merck’s argument.

The PSC contends that Merck’s choice to operate in New Jersey means that it should reasonably expect to abide by New Jersey’s laws. While this is true, it is just as true that Merck, an international corporation providing its drugs to every state in the nation, should expect to abide by every jurisdiction’s laws. To the extent that problems developed with respect to Vioxx, Merck could have reasonably expected to be sued in every jurisdiction and be subject to every jurisdiction’s laws. As to the individual plaintiffs, it is highly unlikely that a plaintiff residing outside of New Jersey could have reasonably expected that his or her personal injury claims would be governed by New Jersey law. As such, the Court finds that the third factor weighs in favor of applying the laws of each plaintiffs home jurisdiction to his or her respective claims.

c. Interests of Judicial Administration

The interests of judicial administration, the fourth factor, require the Court to consider the practicality of applying one jurisdiction’s law in a specific instance. Erny, 792 A.2d at 1217; Fu, 733 A.2d at 1142. This factor weighs heavily in favor of applying New Jersey law. From the Court’s perspective, the application of a single jurisdiction’s law is more practical than the application of fifty-one different jurisdictions’ laws. See Margulies, 2005 WL 2923580, at *9. Therefore, the Court finds that the fourth factor weighs in favor of applying New Jersey law to the entire class. Ease of administration, however, is of minimal importance and must give way to the other factors. See Erny, 792 A.2d at 1217.

d. Competing Interests of the States

The competing interests of the states, the fifth factor, is the most important factor under New Jersey’s choice-of-law scheme. See Fu, 733 A.2d at 1142. In deciding the competing interests factor, the Court must consider four separate sub-elements: (1) the place where the injury occurred; (2) the place where the conduct causing the injury occurred; (3) the domicile, residence, nationality, place of incorporation, and place of business of the parties; and (4) the place where the relationship between the parties is centered. Fu, 733 A.2d at 1142. Furthermore, in personal injury litigation, the place of injury is especially important, and when the conduct and injury occur in the same state, that jurisdiction’s laws will generally apply except when another jurisdiction has a demonstrably dominant interest and no policy of the situs state would be frustrated. See Erny, 792 A.2d at 1217-18; Fu, 733 A.2d at 1142. Throughout this analysis, the Court must focus on what a given legislature intended to protect by enacting the law at issue and how that legislature’s concerns will be furthered by applying its law to the multistate situation. Erny, 792 A.2d at 1217; Fu, 733 A.2d at 1142.

Regarding the place of injury, the Court finds that the jurisdiction where each plain*458tiff resides qualifies as the place of injury. See In re Norplant Contraceptive Prods. Liab. Litig., 215 F.Supp.2d 795, 814 (E.D.Tex.2002). There is no evidence indicating otherwise and such a conclusion is based on common sense. Each plaintiff most likely was prescribed Vioxx, ingested Vioxx, and allegedly suffered personal injury in his or her state of residence. As such, in the present case, the injuries occurred in fifty-one jurisdictions, fifty of which are not New Jersey.

Regarding the conduct causing the injury, the Court finds that the jurisdiction where each plaintiff resided also qualifies as the place where the injury-causing conduct occurred. See id.; In re Consol. Parlodel Litig., 22 F.Supp.2d 320, 326-27 (D.N.J.1998). The PSC, however, would have the Court conclude that New Jersey was the place where the injury-causing conduct occurred because New Jersey is where the majority, if not all, of the relevant corporate decisions occurred. However, Vioxx was advertised in, marketed in, shipped into, prescribed in, sold in, ingested in, and allegedly caused harm in fifty-one jurisdictions. Merck’s conduct may have originated in New Jersey, but it was effectuated and felt by every plaintiff in their own home jurisdiction. See Laufer, 2005 WL 1869211, at *8. Accordingly, the conduct causing the plaintiffs’ injuries occurred, and the plaintiffs’ claims arose, in fifty-one jurisdictions, fifty of which are not New Jersey. See In re Parlodel, 22 F.Supp.2d at 326-27.

Regarding the residence, domicile, nationality, place of incorporation, and place of business of the parties, Merck is a New Jersey corporation that predominantly operates its business in New Jersey. On the other hand, the plaintiffs reside in fifty-one jurisdictions, fifty of which are not New Jersey.

Regarding the place where the relationship is centered, the Court finds that the relationship between each plaintiff and Merck is centered in the state where each plaintiff resides. See In re Norplant, 215 F.Supp.2d at 815. This is where each plaintiff most likely was prescribed, purchased, ingested, and allegedly harmed by Vioxx. Moreover, it is difficult to fathom how the relationship could have been centered only in New Jersey. To the extent that any of the plaintiffs knew that Merck was the manufacturer of Vioxx, which in most cases is unlikely, it is even more doubtful that any of the plaintiffs knew that Merck was incorporated in and operated out of New Jersey. Furthermore, to the extent that any non-New Jersey resident knew both of these facts, it still would not change the center of the relationship unless he or she actively choose to travel to New Jersey, saw a doctor in New Jersey, was prescribed Vioxx in New Jersey, purchased Vioxx in New Jersey, and consumed Vioxx in New Jersey. Conversely, Merck consciously choose to advertise and market Vioxx throughout the United States, which ultimately led to the writing of Vioxx prescriptions, the sale of Vioxx, and the ingestion of Vioxx across the country. As such, the parties’ relationships are centered in fifty-one jurisdictions, fifty of which are not New Jersey.

Accordingly, the Court finds that the competing interests of the states, the fifth and most important factor, weighs in favor of applying the law of each plaintiffs home jurisdiction to his or her respective claims.

iii. Choice-of-Law Conclusion

The Court has applied New Jersey’s choice-of-law rules in this case and therefore has considered the interests of interstate comity, the policies of deterrence and compensation, the interests of the parties, the interest of practicality, and the competing interests of the states to determine which state’s or states’ substantive law would be applied to the class. The relevant choice-of-law factors confirm that New Jersey substantive law should not be applied to the entire class, but instead, that the substantive law of each plaintiffs home jurisdiction must be applied to his or her respective claims. With this in mind, the Court now turns to Rule 23 of the Federal Rules of Civil Procedure to determine whether the putative class should be certified.

B. CLASS CERTIFICATION

Rule 23(a) sets forth four prerequisites to any class action: (1) a class “so numerous that joinder of all members is impracticable”; (2) the existence of “questions *459of law or fact common to the class”; (3) class representatives with claims or defenses “typical ... of the class”; and (4) class representatives that “will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a). In addition to these prerequisites, a party seeking class certification under Rule 23(b)(3) must also demonstrate that “questions of law or fact common to the members of the class predominate over any questions affecting only individual members” and that the class action is “superior to other available methods for the fair and efficient adjudication of the controversy.” Fed.R.Civ.P. 23(b)(3). As the party seeking class certification, the PSC bears the burden of showing that all of these criteria are satisfied. Unger v. Amedisys Inc., 401 F.3d 316, 320 (5th Cir.2005). '

At the outset, the Court notes that its choice-of-law analysis presents significant hurdles to certification of a nationwide class of Vioxx users because the application of the laws of fifty-one jurisdictions to the claims of the proposed class creates problems for the typicality, adequacy, predominance, and superiority requirements of Rule 23. See Castano v. Am,. Tobacco Co., 84 F.3d 734, 741 (5th Cir.1996); In re Bridgestone/Firestone, Inc., Tires Prods. Liab. Litig., 288 F.3d 1012, 1018-21 (7th Cir.2002); In re Am. Med. Sys., 75 F.3d 1069, 1085 (6th Cir.1996); In re Prempro Prods. Liab. Litig., 230 F.R.D. 555, 561 (E.D.Ark.2005) (noting that the choice-of-law issue “pervades every element” of Rule 23); Schein, Inc. v. Stromboe, 102 S.W.3d 675, 698-99 & nn. 91-92 (Tex.2002) (collecting cases); see also Jeremy T. Grabill, Comment, Multistate Class Actions Properly Frustrated by Choice-of-Law Complexities: The Role of Parallel Litigation in the Courts, 80 Tul. L.Rev. 299, 307-09 (2005); Rory Ryan, Comment, Unc&rtifiable?: The Current Status of Nationwide State-Law Class Actions, 54 Baylor L.Rev. 467, 469-70 & nn. 4-5 (2002) (collecting authorities).

Moreover, even if New Jersey law could be applied to the entire class, individualized factual issues concerning specific causation and damages dominate this litigation and create independent hurdles to certification. See, e.g., Steering Committee v. Exxon Mobil Corp., 461 F.3d 598 (5th Cir.2006). Nevertheless, the Court will carefully analyze the requirements of Rule 23 to determine whether these apparent hurdles can be overcome.

i. Numerosity

To demonstrate numerosity, the PSC must establish that joinder is impracticable through “some evidence or reasonable estimate of the number of purported class members.” Pederson v. La. State Univ., 213 F.3d 858, 868 (5th Cir.2000). With approximately 20 million Vioxx users in the United States, the numerosity requirement is clearly satisfied.

ii. Commonality

Rule 23(a)(2) requires that there be issues of law or fact common to the class. The commonality requirement is satisfied if at least one issue’s resolution will affect all or a significant number of class members. See James v. City of Dallas, 254 F.3d 551, 570 (5th Cir.2001); Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 625 (5th Cir. 1999). There is a low threshold for commonality, and the fact that some plaintiffs have different claims or require individualized analysis does not defeat commonality. James, 254 F.3d at 570.

The Master Complaint identifies several common questions of fact. Specifically, common questions of fact exist regarding the development, manufacturing, and testing of Vioxx. Moreover, common questions of fact exist regarding Vioxx’s effects on the human body. These common questions relate to “general causation,” that is, whether or not Vioxx is capable of causing adverse cardiovascular events. Having presided over several bellwether trials in this MDL, the Court need not speculate on the issue of commonality, but rather is confident that common questions exist. Cf. In re Ford Motor Co. Ignition Switch Prods. Liab. Litig., 194 F.R.D. 484, 490 (D.N.J.2000) (“Resolution of the ‘general causation’ question ... does not show commonality under Rule 23(a)(2).”).

iii. Typicality

Rule 23(a)(3) requires that the claims of the class representatives be typical of the claims of the class. Typicality does not require that these claims be identical, but *460rather that they share the same essential characteristics—a similar course of conduct, or the same legal theory. James, 254 F.3d at 571. In this case, both the proposed class representatives and the putative class members assert various products liability claims against Merck under theories of negligence, strict liability, failure to warn, and defective design. “While these claims involve common issues, they also involve individual issues such as injury, causation, the learned intermediary doctrine and comparative fault.” In re Baycol Prods. Litig., 218 F.R.D. 197, 205 (D.Minn.2003). Judge Davis’s analysis in the Baycol multidistrict litigation applies with equal force here:

[T]he underlying facts and circumstances of this case do not make the proposed personal injury class amenable to class certification. This case involves a vast number of persons who took different dosages of [Vioxx], at different times, and possibly took [Vioxx] concomitantly with other prescription drugs. Because the theories asserted by this putative class are based on what [Merck] knew at the time [Vioxx] was prescribed, and whether [Merck] acted reasonably based on such knowledge, the claims of the named representatives are not typical of the class.

In re Baycol, 218 F.R.D. at 205-06. Accordingly, the Court finds that the class representatives’ claims are not typical of the class given these factual variations.

Moreover, the Court’s choice-of-law analysis suggests that while the proposed class representatives’ claims will be governed by New Jersey law, the putative class members’ claims will be governed by the substantive laws of their respective jurisdictions. The applicability of multiple substantive laws also precludes a finding of typicality. See, e.g., Stirman v. Exxon Corp., 280 F.3d 554, 562 (5th Cir.2002) (“Given the differences among the state laws, it cannot be said that [the class representatives’] claims are ‘typical’ of the class ... ”).

iv. Adequacy of Representation

The adequacy requirement mandates an inquiry into “the zeal and competence of the representative [s’] counsel and ... the willingness and ability of the representative[s] to take an active role in and control the litigation and to protect the interests of absentees.” Berger v. Compaq Computer Corp., 257 F.3d 475, 479-80 (5th Cir.2001).

The Court has no doubts about the zeal and competence of the representatives’ counsel in this case. However, the “adequate representation requirement overlaps with the typicality requirement because in the absence of typical claims, the class representative has no incentive to pursue the claims of the other class members.” In re Am. Med. Sys., 75 F.3d at 1083 (emphasis added). Thus, despite Herculean efforts by the PSC, the Court finds that because of the factual and legal differences among class members’ claims, the proposed class representatives cannot satisfy the adequacy requirement.

v. Predominance

Rule 23(b)(3) requires that common questions of law or fact “predominate over any questions affecting only individual [class] members.” Unger, 401 F.3d at 320. To predominate, common issues must form a significant part of individual cases. Mullen, 186 F.3d at 626. The predominance requirement of Rule 23(b)(3) is “far more demanding” than the commonality requirement of Rule 23(a), because it “tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Un-ger, 401 F.3d at 320. Lastly, the cause of action as a whole must satisfy Rule 23(b)(3)’s predominance requirement. Exxon Mobil Corp., 461 F.3d at 601.

It has been said that “[n]o class action is proper unless all litigants are governed by the same legal rules.” In re Bridgestone/Firestone, 288 F.3d at 1015. This is because “variations in state law may swamp any common issues and defeat predominance.” Castano, 84 F.3d at 741. The PSC bears the burden of demonstrating that variations among the fifty-one applicable state laws do not “pose ‘insuperable obstacles’ to certification.” Spence v. Glock, 227 F.3d 308, 313 (quoting Walsh v. Ford Motor Co., 807 F.2d 1000, 1017 (D.C.Cir.1986)). Notwithstanding valiant efforts, the PSC has not carried its burden in this respect and, therefore, the Court finds that common ques*461tions of law do not predominate. Furthermore, courts have almost invariably found that common questions of fact do not predominate in pharmaceutical drug cases. See, e.g., In re Prempro, 230 F.R.D. at 567; Zehel-Miller v. Astrazenaca, Pharm., LP, 223 F.R.D. 659, 663 (M.D.Fla.2004); In re Baycol, 218 F.R.D. at 204; In re Paxil Litig., 212 F.R.D. 539, 551 (C.D.Cal.2003); In re Propulsid Prods. Liab. Litig., 208 F.R.D. 133, 144-45 (E.D.La.2002); In re Rezulin Prods. Liab. Litig., 210 F.R.D. 61, 65-67 (S.D.N.Y.2002). This case is no different.

The plaintiffs’ allegations that Merck failed to warn doctors adequately regarding the alleged health risks of Vioxx—whether they sound in strict liability or negligence—necessarily turn on numerous individualized issues such as: the alleged injury; what Merck knew about the risks of the alleged injury when the patient was prescribed Vioxx; what Merck told physicians and consumers about those risks in the Vioxx label and other media, what the plaintiffs’ physicians knew about these risks from other sources, and whether the plaintiffs’ physicians would still have prescribed Vioxx had stronger warnings been given. These individualized issues precluded certification in the Baycol litigation:

Plaintiffs’ claims of failure to warn turn on what Defendants knew at the time [Vioxx] was prescribed. As the class members were prescribed [Vioxx] at different times, the issue of Defendants’ knowledge will differ from case to case. The same is true for the claims based on negligence. For example, negligence claims depend on individual facts—whether there is a breach of duty or the foreseeability of harm will depend on what Defendants knew or should have known at the time [Vioxx] was prescribed and whether Defendants acted reasonably based on the knowledge it had at that time.

In re Baycol, 218 F.R.D. at 208. These individualized issues likewise preclude a finding of predominance in this litigation. Moreover, during the approximately five years that Merck marketed Vioxx, the package insert and label changed several times. These changes further frustrate a finding of predominance. See In re Prempro, 230 F.R.D. at 567; In re Rezulin, 210 F.R.D. at 66-67. In short, there is no uniform body of representations to which all physicians and putative class members were exposed.

In refus