The thing about personal injury claims is that they’re personal. Each case has distinctive details, such as why the plaintiff used the product, what she relied on, what harm resulted, and what caused the harm. That’s why personal injury claims are not fit for class treatment. They are almost never certified.
In fact, nowadays, they are not only rejected; they are rejected hard. That’s what happened in Haggard v. Endogastric Solutions, Inc., 2012 U.S. Dist. LEXIS 89767 (W.D. Pa. June 28, 2012). The defendant manufactures a device (EsophyX) that is inserted without an incision to treat GERD. The plaintiff had it inserted, choosing it over a competitor’s surgically implanted device (Nissen). When the device didn’t work, his doctor couldn’t completely remove it, and the plaintiff claimed that this eliminated certain other treatment options that had been available to him. He reluctantly tried the competitor’s Nissen device, but his symptoms got worse. Plaintiff then filed his class action, claiming that the defendant had misrepresented that the insertion procedure was reversible, when in fact it was only “revisable” (apparently something less than reversible). Id. at *1-3.
If this sounds like a situation rife with unique personal facts, that’s because it is. And so plaintiff’s attempt to put a class together failed miserably.
Plaintiff first tried to certify a class that consisted of everyone who had used the defendant’s device. The court rejected this class for a bunch of reasons, many of which are obvious. It failed the “typicality” requirement. The class rep had “marked” differences with the other putative class members as to the information received and relied upon, as well as the harm suffered, particularly given that plaintiff admitted that, unlike with him, the device worked for most of the class members:
Evidence of record indicates there would be numerous, inevitable questions regarding the information received by individual patients - from their physicians or other sources - and their reliance on particular representations. . . . More importantly for purposes of a typicality analysis, Plaintiff’s theory of harm because he was informed as to and relied on representations of its “reversibility” in electing a surgical procedure is harm of a fundamentally different nature - i.e., it is different in kind - from the inchoate harm, if any, of being subject to misrepresentations in the abstract.
Id. at *14, *17.
That’s enough to doom this case. But the court went on to say that under Dukes the class would have failed “commonality” for these same reasons. Id. at *13-14 n.5. It would have failed "adequacy" of representation because plaintiff’s counsel had a conflict representing class members who had successful surgeries and those who did not. Id. at *19 n. 10. It couldn’t be certified under FRCP 23(b)(2) because that subsection is reserved for claims primarily seeking injunctive or declaratory relief, yet plaintiff was primarily seeking “monetary relief.” Id. at *20.
There’s more. The class failed FRCP 23(b)(3)’s predominance requirement because, as we said, personal injury claims are personal. Individual, not class-wide, issues predominated:
In this case, reliance on Defendant’s alleged misrepresentations in electing to undergo the . . . procedure is central; it is the lynchpin of damages. . . . But the evidence of record indicates that (1) putative class members received information regarding the procedure primarily from their physicians, which information likely varied for reasons related to both the physicians themselves and the individual patient’s medical circumstances; (2) the amount and content of information received by a patient directly from Defendant’s marketing or other materials likely differed from Plaintiff’s and as between putative class members as well; and (3) individual decisions to undergo the procedure were likely influenced by and premised on varying individual considerations. In addition, it is not immediately apparent that prospective EsophyX patients would ordinarily place substantial emphasis on reversibility in view of the fact that the procedure was offered as a less intrusive alternative to the Nissen procedure, so that in the infrequent event EsophyX was unsuccessful, progression to the Nissen - rather than attempted reversal - would be, as it was for Plaintiff, the recommended course. . . . The resultant injury/harm is also, of course, central to this case and it too raises a multitude of individual, as opposed to, common issues.
Id. at *23-25. That’s a lot of differences.
It also failed FRCP 23(b)(3)’s “superiority” requirement:
[I]n light of the extent to which determinations would need to be made on an individual basis, adjudicating the claims as a class would be unlikely to reduce litigation or preserve judicial resources. To the contrary, individual questions of information received, reliance, and actual injury would require extensive individual assessments and significant trial time would likely have to be devoted to their resolution.
Id. at *27-28. In other words, this case had no business being a class action.
Plaintiff didn’t give up, though. He tried to hide all these individual differences and certify an alternative class that included only patients who relied on the defendant’s alleged misrepresentation that insertion of the device was reversible. This was a “non-starter.” Id. at *7.
Individual differences can’t simply be swept away to create a class action. They were still there, and they were still a problem. This sleight of hand only shifted the determination of these individualized issues from a merits analysis to a class membership analysis, making the class itself “untenable because it is not objectively, reasonably ascertainable”:
The determination of class membership under Plaintiff’s alternative definition would require this Court to adjudicate on a person-by-person basis whether each proposed class member relied on Defendant’s representations. That is, class membership would not be ascertainable without the imposition of serious administrative burdens incongruous with the efficiencies expected in a class action.
Id. at *11.
Frankly, this “alternative” class wasn’t really a class at all. Three people do not a class make. The defendant pointed out that, despite two years of lawyer advertising, plaintiff had only been able to identify two other individuals as potential members of this alternative class. Id. at *12. And so plaintiff’s alternative class failed numerosity at well.