Medical Monitoring - Another Individualized Issue

Medical monitoring is an odd-duck (we would say illegitimate) tort because it's almost 100% dependent upon a particular procedure - the class action - for its existence.  Procedure, of course, is not supposed to alter the substantive law, but in medical monitoring it has.  Thus, kill the medical monitoring class action and one largely kills the tort.

We blogged not too long ago about the Third Circuit's decision in Gates v. Rohm & Haas Co., 655 F.3d 255 (3d Cir. 2011), because of that court's evaluation of the presence of individual medical/exposure in medical monitoring claims.  The finding in Gates on the predominance question, we thought, pretty much closed the coffin on class certification of medical monitoring claims, at least under Pennsylvania law.

Kill the class action and we kill the tort.

Here's another recent opinion putting some nails in the coffin:  Fiorentino v. Cabot Oil & Gas Co., 2011 WL 5239068 (Disc. Sp. Master M.D. Pa. Nov. 1, 2011).  The special master's ruling arises in a somewhat odd context, a discovery dispute.  It's not entirely clear, but we think it's a fracking case - part of the latest environmental guerilla war in these parts (although with natural gas less carbon-intensive than coal, we're not sure what the fight is really supposed to be about).

In Fiorentino, a bunch of plaintiffs were seeking medical monitoring.  As usual, they alleged no personal injury at all, only some vague "future risk."  Rather cheekily (and unwisely, as it turned out) they refused to turn over their medical records.  The defendants pursued the issue, arguing that they needed medical records to evaluate whether the plaintiffs really required monitoring beyond what they would have had to get anyway, given their pre-existing medical conditions.  That's element six of medical monitoring in Pennsylvania.  Fiorentino, 2011 WL 5239068, at *3 (listing elements).  We'll call it the "over-and-above" element for short.

The plaintiffs claimed that their individual records were "completely irrelevant" because the over-and-above element was judged solely against what was "normally prescribed for the general public."  The defendants viewed this over-and-above element as requiring monitoring beyond that "normally recommended for that particular plaintiff."   2011 WL 5239068, at *3.

General public versus particular plaintiff.

Common issue versus individualized issue.

Class certification versus no class certification.

Kill the class; kill the tort.

The decision in Fiorentino came down squarely on the side of the over-and-above element requiring individualized proof:

The fundamental principles of tort law and the evolution of the medical monitoring claim throughout Pennsylvania Supreme Court decisions leads to the prediction that the Supreme Court would require each plaintiff to demonstrate that the monitoring regime recommended for her is different from the monitoring regime recommended for her absent the alleged exposure.  In other words, each plaintiff's individual medical condition/history is relevant to establishing the medical monitoring claim.

 2011 WL 5239068, at *6 (emphasis added).  There follow (follows? - interesting grammatical conundrum) several pages of analysis in support of that conclusion, which we commend to anyone defending a medical monitoring claim (and not just in Pennsylvania).  We won't go into all that now.

Our takeaway.  Here's yet another way - beyond those already held dispositive in Gates - of demonstrating that common issues do not predominate in medical montoring claims (and after Dukes, predominance cannot be avoided).  Since almost every state that has made the mistake of recognizing medical monitoring claims includes an over-and-above element, the same argument should be available elsewhere.

Kill the class action; kill the tort.

Big-Deal Third Circuit Medical Monitoring Case

The Third Circuit has decided Gates v. Rohm & Haas Co., No. 10-2108, slip op. (3d Cir. Aug. 25, 2011).  Although not a pharmaceutical case, it's something our readers would want to know about.  Gates was decided under Pennsylvania law - somewhat bizarre because the contamination occurred in Illinois.  It pretty much kills medical monitoring class actions except possibly in single-event contamination episodes - and thus takes medical monitoring class actions effectively off the table in pharma mass tort actions.  The court refuses to allow plaintiffs to use statistical analyses to gloss over individual differences in terms of length, amount, and seriousness of exposure.

Plaintiffs cannot substitute evidence of exposure of actual class members with evidence of hypothetical, composite persons in order to gain class certification. . . .  The evidence here is not “common” because it is not shared by all (possibly even most) individuals in the class. Averages or community-wide estimations would not be probative of any individual‟s claim because any one class member may have an exposure level well above or below the average.  Attempts to meet the burden of proof using modeling and assumptions that do not reflect the individual characteristics of class members have been met with skepticism.

Slip op. at 20-21 (citations omitted).  Also, Gates refuses to apply prophylactic government regulatory exposure standards to civil litigation:

Although the positions of regulatory policymakers are relevant, their risk assessments are not necessarily conclusive in determining what risk exposure presents to specified individuals.  Thus, plaintiffs could not carry their burden of proof for a class of specific persons simply by citing regulatory standards for the population as a whole.

Id. at 25-26 (numerous citations omitted)
The court "questions" but does not decide whether medical monitoring could ever be a Rule 23(b)(2) class after the Wal-Mart. decision.  Slip op. at 15.  The court goes on to affirm denial of class certification under (b)(2), (b)(3), and (c)(4).  The court adopts the Principles of Aggregate Litigation for (c)(4), and affirms the court's finding that medical monitoring intertwines common and individual issues so that there are no "joints" at which to cut.  Slip op. at 35-37.  Denial of certification of a property damage class was also affirmed.  Slip op. at 31-34.

If you defend medical monitoring cases, whether in pharmaceutical cases or otherwise, you'll like Gates.