MEDICAL MONITORING:
Class Action Issues
Sean P. Wajert
Dechert, LLP
Philadelphia, PA
www.masstortdefense.com
Chemical Products Liability & Environmental
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MEDICAL MONITORING
CLASS ACTIONS
 Medical monitoring is often presented
as a class action claim:
 Expanding universe of potential plaintiffs from
injured plaintiffs to so-far healthy plaintiffs


plaintiffs who have been exposed
plaintiffs at increased risk of future disease
 A number of elements of medical monitoring
seem more amenable to “common” proof
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MEDICAL MONITORING:
CLASS ACTIONS
 Facing the class claim:
 Is medical monitoring recognized in the
relevant jurisdiction?
 If so,


Is it a cause of action or remedy?
Is it equitable relief or a damages action?
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MEDICAL MONITORING:
CLASS ACTIONS
 Lowe v. Philip Morris USA, Inc., 344 Ore. 403; 183 P.3d 181
(2008)
 Threat of future harm is insufficient to state a claim
 The need to undergo periodic medical monitoring is
insufficient “harm.”
 Donovan v. Philip Morris USA, Inc, 455 Mass. 215 (2009).

Recognized when defendant's negligence causes plaintiff to
become exposed to a hazardous substance that produces
sub-cellular changes that substantially increased the risk of
serious disease
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MEDICAL MONITORING:
Class Actions
 Is
it a remedy or a cause of action?
 Class certification implications
 If recognized as a remedy, need to also
examine underlying tort/cause of action
elements
 If independent cause of action, additional
focus may be on medical monitoring
elements
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MEDICAL MONITORING:
CLASS ACTIONS
 Do plaintiffs seek injunctive/equitable or
damages/legal relief?
 Manual for Complex Litigation: courts are
divided over whether 23(b)(2) or 23(b)(3) is
the appropriate vehicle for certifying a class
for medical monitoring
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MEDICAL MONITORING:
CLASS ACTIONS
 Do plaintiffs seek injunctive or legal relief?


Gates v. Rohm and Haas Co., 2010 WL
774327 (E.D. Pa. 3/5/10)
Doctors’ Hospital L.P. v. Webb, 704 S.E.2d 185
(Ga. App. 2010)
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MEDICAL MONITORING:
CLASS ACTIONS
 Increasingly, plaintiffs seek alleged injunctive
relief… Why?
 Insurance for impact of Rule 23(b)(3):
predominance of common issues
 Plaintiffs think that certification under (b)(2)
allows them to push medical monitoring elements
into “program”
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MEDICAL MONITORING:
CLASS ACTIONS
 Rule 23(b)(2) different than (b)(3)
 No predominance requirement
 But courts differ
 cohesiveness more stringent than predominance



Barnes v. American Tob. Co., 161 F.3d 127 (3d Cir.
1998)
Kelecseny v. Chevron, U.S.A., Inc., 262 F.R.D.
660, 681 (S.D. Fla. 2009)
no cohesiveness requirement at all?
 Wal-Mart Stores v. Dukes,79 USLW 3128 (U.S.
Dec. 6, 2010)
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MEDICAL MONITORING:
CLASS ACTIONS
 Several cases on injunctive relief with dicta, little analysis
 Gates v. Rohm & Haas Co., 265 F.R.D. 208, 230 (E.D. Pa. 2010) (“request
for a court-ordered, court-supervised medical monitoring program can be
considered a request for injunctive relief” but denying class certification on
other grounds);

Rowe v. E.I. Dupont De Nemours, 2008 U.S. Dist. LEXIS 103528, at *30
(D.N.J. Dec. 23, 2008) (“requests for medical monitoring in this case can be
considered requests for injunctive relief.”);

Rhodes v. E.I. Dupont De Nemours & Co., 2008 U.S. Dist. LEXIS 46159, at
*13 (S.D. W. Va. June 11, 2008) (“plaintiffs are seeking primarily injunctive
or declaratory relief in the form of a court-supervised medical monitoring
program.”);

In re Welding Fume Prods. Liab. Litig., 245 F.R.D. 279, 290 (N.D. Ohio 2007)
(Rule 23(b)(2) applies to medical-monitoring claims because “plaintiffs ask
only for injunctive relief, in the form of a court-supervised medical
monitoring program” and not “money damages” but denying class
certification on other grounds).
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MEDICAL MONITORING:
CLASS ACTIONS
 How to combat characterization as injunctive relief?
 How is the remedy defined under state law?
 Does this class really fit the test of (b)(2)?
 Absence of cohesiveness- where available
 Especially if jurisdiction does not recognize need for
cohesiveness:


ascertainability
manageability
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MEDICAL MONITORING:
CLASS ACTIONS
 How to combat alleged injunctive relief
 How is the remedy defined under applicable law?


Potter v. Firestone Tire & Rubber, 863 P.2d 795
(1993)(“it is simply a compensable item of damages”)
if damages, it’s not injunctive relief
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MEDICAL MONITORING:
CLASS ACTIONS
 How to combat alleged injunctive relief?

Courts view of applicability to medical monitoring generally.

Zinser v. Accufix Res. Inst., Inc., 253 F.3d 1180, 1195 (9th Cir.),
amended, 273 F.3d 1266 (9th Cir. 2001) (medical monitoring not
“injunctive” because it “is appropriate only as an element of
damages after independent proof of liability”).
Certification under Rule 23(b)(2) is inappropriate if the injunction is
a "disguised request for compensatory damages." Barnes, 161 F.3d
at 131 (3d Cir. 1998); see also Day v. NLO, Inc., 144 F.R.D. 330,
335-36 (S.D. Ohio 1992), rev'd on other grounds, 5 F.3d 154 (6th
Cir. 1993).
Cook v. Rockwell Int’l Corp., 181 F.R.D. at 479-80 (medical
monitoring relief was primarily a suit for damages);
Thomas v. FAG Bearings Corp., 846 F. Supp. 1400, 1404 (W.D. Mo.
1994) (declining to certify class because costs were nothing more
than compensation for necessary medical expenses reasonably
anticipated to be incurred in the future).



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MEDICAL MONITORING:
CLASS ACTIONS
 How to combat alleged injunctive relief?
 Can you use the test of (b)(2)
 (1) that plaintiff has suffered an irreparable injury;
 (2) that remedies available at law, such as monetary
damages, are inadequate to compensate for that
injury;
 (3) that, considering the balance of hardships between
the plaintiff and defendant, a remedy in equity is
warranted; and
 (4) that the public interest would not be disserved by a
permanent injunction.
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MEDICAL MONITORING:
CLASS ACTIONS
 How to combat alleged injunctive relief?
 Have plaintiffs obtained such scanning?
 If no, may undermining any claim of irreparable harm.
 under the rubric of “self-inflicted harm,” which
precludes a claim for injunctive relief when the alleged
irreparable harm for which the plaintiff seeks relief is
self-inflicted.
 See, e.g., FIBA Leasing Co., Inc. v. Airdyne Indus.,
Inc., 826 F. Supp. 38, 39 (D. Mass. 1993) (“injunction
movant does not satisfy the irreparable harm criterion
when the alleged harm is self inflicted.”)
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MEDICAL MONITORING:
CLASS ACTIONS
 How to combat alleged injunctive relief?
 If money damages will adequately redress harm, injury
is not considered irreparable. Plaintiffs may argue that
monetary damages are not adequate:
 insurance coverage is not available.
 alleged lack of available testing machines.
 damages not accurately measurable due to
uncertainty as to the costs of scanning.
 need a court-supervised “program”
 need record keeping.
 alleged purpose is studies.

Are these factual? merely incidental?
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MEDICAL MONITORING:
CLASS ACTIONS
 How to combat alleged injunctive relief?

Requirement of cohesiveness in many courts

Perez v. Metabolife Int’l., Inc., 218 F.R.D. 262 (S.D. Fla. 2003) (courts “should be
hesitant to grant certification” of medical-monitoring claims where “the many
individual issues involved in determining whether a monitoring program is”
required for class “preclude a finding of cohesiveness under Rule 23(b)(2).”)

Zehel-Miller v. AstraZenaca Pharms., LP, 223 F.R.D. 659, 664 (M.D. Fla. 2004)
(denying class certification of medical monitoring class under Rule 23(b)(2)
because “all of the individual issues identified in [the 23(b)(3) analysis] destroy
any semblance of cohesion”).

Sweet v. Pfizer, 232 F.R.D. 360, 374 (C.D. Cal. 2005)(court refused to certify a
class of purchasers of the prescription drug Mirapex seeking injunctive relief
under 23(b)(2)).

Lewallen v. Medtronic USA, Inc., 2002 U.S. Dist. LEXIS 20153, at *10-11 (N.D.
Cal. Aug. 28, 2002)(court applied the cohesiveness standard to a proposed
medical monitoring class under Rule 23(b)(2), noting that “even though the rule
does not contain a predominance and superiority requirement, the requisite
cohesiveness is lacking where individual issues predominate.”)
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MEDICAL MONITORING:
CLASS ACTIONS
 Individual issues affecting cohesiveness (and
predominance)



Underlying tort elements
Medical monitoring elements
Affirmative defenses
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MEDICAL MONITORING:
CLASS ACTIONS
 Individual issue hurdles
 Medical monitoring elements, e.g.,




Exposure levels
Risk Levels
Causation
Over and above
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MEDICAL MONITORING:
CLASS ACTIONS
 Exposure Levels
 Leib v. Rex Energy Operating Corp., 2008 WL
5377792 (S.D. Ill., 2/26/09)
 In re FEMA Trailer Formaldehyde Products
Liability Litigation, 2008 WL 5423488, at *16
(E.D.La. 2008)
 Rowe v. E.I. duPont de Nemours and Co.,
2008 WL 5412912, at *12-15 (D.N.J. 2008)
 Gates v. Rohm and Haas Co., 2010 WL
774327 (E.D. Pa. 3/5/10).
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MEDICAL MONITORING:
CLASS ACTIONS
 Risk Levels

Does epidemiology establish increased risk? On a
class-wide basis?



Mann v. CSX Transp., Inc., 2009 WL 3766056, at *4
(N.D.Ohio 2009)
Rhodes v. E.I. du Pont de Nemours and Co., 253
F.R.D. 365, 376-77 (S.D, W.Va. 2008)
Gates v. Rohm and Haas Co., 2010 WL 774327 (E.D.
Pa. 3/5/10)
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MEDICAL MONITORING:
CLASS ACTIONS
 Causation




What must be caused?
Does the defendant’s conduct need to cause
the exposure to the hazardous product, or the
increased risk, or both?
Must the defendant’s conduct have caused the
“need” for medical monitoring?
When court requires proof of an underlying
tort, must the plaintiff also show causation in
some traditional sense?
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MEDICAL MONITORING:
CLASS ACTIONS
 Causation


Myers v. BP America, Inc., 2009 WL 2341983,
at *6-10 (W.D.La. 2009)
In re FEMA Trailer Formaldehyde Products
Liability Litigation, 2008 WL 5423488, at *19
(E.D.La. 2008)
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MEDICAL MONITORING:
CLASS ACTIONS
 “Over and Above”
 Different from what would be prescribed in
absence of the exposure
 Other risk factors? Individual assessments?


Leib v. Rex Energy Operating Corp., 2008 WL
5377792, at *13 (S.D. Ill., 2/26/09)
Hoyte v. Stauffer Chemical Co., 2002 WL
31892830, *30, 50 (Fla.Cir.Ct.)
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MEDICAL MONITORING:
CLASS ACTIONS
 Lesson from life sciences
 In re: St. Jude Medical, Inc., Silzone Heart Valve
Products Liability Litigation, No. 06-3860, 2008 WL
942274 (8th Cir. April 9, 2008)


"highly individualized remedy of medical monitoring”
whether an individual plaintiff will require additional
monitoring is individualized inquiry depending on that
patient's medical history, condition of the patient's heart
valves at the time of implantation, patient's risk factors for
heart valve complications, patient's general health, patient's
personal choice, and other factors.
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MEDICAL MONITORING:
Class Action Trials
 Defeating the (b)(2) class motion
 Ascertainability
 membership requires plaintiff-specific inquiry


involves subjective, state of mind inquiry


Solo v. Bausch & Lomb Inc., 2009 U.S. Dist. LEXIS
115029, at *13 (D.S.C. Sept. 25, 2009)
Guillory v. Am. Tobacco Co., No. 97 C 8641, 2001 WL
290603, at *3 (N. D. Ill. Mar. 20 2001) (individuals who
“desire[d]” to participate in a medical monitoring
program)
fail-safe class: can take advantage of win but not
bound by loss

See generally Intratex Gas Co. v. Beeson, 22 S.W.3d
398 (Tex. 2000).
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MEDICAL MONITORING:
Class Action Trials
 Defeating the (b)(2) class motion
 Manageability
 Shook v. El Paso Cnty., Bd. of Cnty. Comm’rs, 386 F.3d
963, 972–73 (10th Cir. 2004) (considering manageability
and efficiency in (b)(2) determination);

Robinson v. Metro-N. Commuter R.R., 267 F.3d 147, 164
(2d Cir. 2001) ( (b)(2) certification only when “class
treatment would be efficient and manageable, thereby
achieving an appreciable measure of judicial economy.”);

In re Rezulin Prods. Liab. Litig., 210 F.R.D. 61, 74
(S.D.N.Y. 2002)(Applying to medical monitoring).
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MEDICAL MONITORING:
Class Action Trials
 Defeating the (b)(2) class motion
 Manageability





Trial Plan- how will plaintiffs get there from here
 put them to the test
Due process violations
Rules Enabling Act violations
7th Amendment in federal cases
Choice of law
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MEDICAL MONITORING:
Class Action Trials
 Manageability

Medical Monitoring Plan





Combat vagueness
Plaintiffs must come forward with detailed plan
Pin down the experts
Watch for “access” approach
Need a target to shoot at

Plaintiffs cannot prove elements without a plan
 Rink v. Cheminova, Inc., 203 F.R.D. 648, 662 (M.D.
Fla. 2001)
 Gates v. Rohm and Haas Co., 2010 WL 774327
(E.D. Pa. 3/5/10)
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MEDICAL MONITORING:
Class Action Trials
 Manageability

Plaintiffs’ Typical Plan





“prove” individual issues through affidavits
“prove” individual issues through administrative process
move individual issues into the “plan” outside of court
affirmative defenses are “barred” in equitable claim
Rule 23 is procedural device that cannot be used
to change substantive law


McLaughlin v. Am. Tobacco Co., 522 F.3d 215 (2d Cir.
2008)
In re Bridgestone/Firestone Inc., 288 F.3d 1012 (7th
Cir. 2002), cert. denied, 537 U.S. 1105 (2003)
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MEDICAL MONITORING:
Class Action Trials
 Manageability
 Plaintiffs’ Plan






“prove” individual issues through affidavits
“prove” individual issues through administrative process
move individual issues into the plan
affirmative defenses are “barred” in equitable claim
Perez v. Metabolife Int’l, Inc., 218 F.R.D. 262, 269 (S.D. Fla.
2003) (“allowing such uncorroborated and self-serving
evidence without giving Defendant an opportunity to
challenge the class member’s evidentiary submissions
would likely implicate Defendant’s due process rights”);
Fisher v. Ciba Specialty Chems. Corp., 238 F.R.D. 273,
302 (S.D. Ala. 2006) (rejecting “plaintiffs’ optimistic argument
that prospective class members could be counted on to selfselect whether” they satisfy the class definition because
such a process “could not reasonably be expected to
produce reliable results”).
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MEDICAL MONITORING:
Class Action Trials
 Manageability- Plan Ahead

All or nothing



Plaintiffs obtain class certification with claim that
elements can be shown on common basis
Hold them to common proof
Point out any examples of people who fit the class
definition but who do not fit the “common” pattern
 Don’t have exposure; or risk; or need for medical
monitoring; or already need it

Some or even most not good enough

Cf. Mann v. CSX Transportation,
2009 WL 3766056 (N.D. Ohio Nov. 10, 2009)
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MEDICAL MONITORING:
Class Actions
 Manageability:
Choice of Law
 Even if recognized, elements vary

Exposure necessary
Risk level
Type of conduct
Efficacy of test/treatment
Standard of Care
Over and above

Payment plan





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MEDICAL MONITORING:
Class Actions

Choice of law - National classes

Zehel-Miller v. Astrazeneca Pharmaceuticals, LP, 223 F.R.D.
659 (M.D.Fla. 2004).
In re Rezulin Products Liability Litigation, 210 F.R.D. 61
(S.D.N.Y. 2002).
Sanders v. Johnson & Johnson, Inc., 2006 WL 1541033
(D.N.J. June 2, 2006).


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MEDICAL MONITORING:
Class Actions

Choice of law – Multi-state classes

In re FEMA Trailer Formaldehyde Products Liability
Litigation, 2008 WL 5423488 (E.D.La.)
In re St. Jude Medical, Inc., 425 F.3d 1116 (8th Cir. 2005)

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MEDICAL MONITORING:
Class Actions

Choice of law – Plaintiffs’ response

In re Welding Fume Products Liability Litig., 245 F.R.D. 279
N.D.Ohio (2007)
State of West Virginia ex rel. Chemtall Inc. v. Madden, 216
W.Va. 443, 607 S.E.2d 772 (2004)

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MEDICAL MONITORING:
Class Action Issues
Sean P. Wajert
Dechert, LLP
Philadelphia, PA
[email protected]
Blog: www.masstortdefense.com
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