In an opinion addressing several important questions of class-action law, the US Court of Appeals for the Third Circuit recently affirmed a district court’s decision denying certification of medical monitoring and property damage classes in a suit alleging environmental contamination. Gates v. Rohm & Haas Co., 2011 WL 3715817 (3d Cir. Aug. 25, 2011).
Plaintiffs in Gates alleged that, by dumping wastewater, companies operating a nearby manufacturing facility released the carcinogen vinyl chloride into the air over plaintiffs’ residential community. Plaintiffs requested certification of a class of asymptomatic residents seeking medical monitoring for diseases associated with vinyl chloride exposure as well as a class seeking compensation for property damage. The district court denied class certification under Fed. R. Civ. P. 23, and plaintiffs sought interlocutory review.
The Third Circuit held that the district court properly denied certification of plaintiffs’ medical monitoring claims under Rule 23(b)(2). Citing the Supreme Court’s recent suggestion that monetary relief may be unavailable in (b)(2) classes (Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011)), the Third Circuit “question[ed]” whether medical monitoring claims can ever be certified under (b)(2). Even if they can, however, plaintiffs’ claims lacked the requisite cohesion.
The court explained that plaintiffs failed to show how they could prove, on a classwide basis, three of the elements of a medical monitoring claim under governing Pennsylvania law. First, expert evidence about average daily exposure to vinyl chloride in plaintiffs’ community did not “constitute common proof of exposure above background levels.” Levels of vinyl chloride in the air varied over the decades-long class period, plaintiffs had differing susceptibilities to exposure, and plaintiffs’ varying work and recreational schedules resulted in different levels of exposure. Thus, “[a]verages … 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.” According to the court, plaintiffs could not “substitute evidence of exposure of actual class members with evidence of hypothetical, composite persons in order to gain class certification.”
Second, plaintiffs did not establish a level of vinyl chloride exposure that “would create a significant risk of contracting a serious latent disease for all class members.” The EPA’s regulatory threshold limit for vinyl chloride exposure “would not be the threshold for each class member who may be more or less susceptible to diseases from exposure to vinyl chloride.”
Third, plaintiffs could not prove on a classwide basis that the proposed medical monitoring regime—serial MRIs—was “reasonably medically necessary.” The court credited defense experts who testified that the negative effects of medical monitoring, such as dangers from the contrast agent used for MRIs to patients with kidney disease, may outweigh any benefits. Individual inquiries would be needed “to consider class members’ individual characteristics and medical histories and to weigh the benefits and safety of a monitoring program.”
The Third Circuit next affirmed denial of a medical monitoring class under Rule 23(b)(3). Citing the same factors that prevented (b)(2) certification, the court held that individual issues predominated over common questions. While plaintiffs suggested that their experts could provide evidence to overcome these individual issues, the court observed that “[a] party’s assurances to the court that it intends or plans to meet the requirements is insufficient.”
The Third Circuit also rejected certification of a property damage class under Rule 23(b)(3). Distinguishing cases that have certified property damage classes, the court stated that “the potential difference in contamination on the properties” meant that “common issues do not predominate.”
Finally, the Third Circuit rejected plaintiffs’ request for an “issues-only” class on liability under Rule 23(c)(4). Noting a circuit split concerning whether Rule 23(c)(4) permits issue certification when common questions do not predominate “for the cause of action as a whole,” the court adopted a third approach, reciting a “non-exclusive list of factors” to consider. Applying that standard, the court held that the district judge properly denied issue certification. A class trial would leave “significant and complex questions” concerning causation and damages “unanswered,” and “common issues” were “not divisible from individual issues.”
By holding that plaintiffs may not use statistical averages or regulatory pronouncements to overcome differences in putative class members’ risk factors, the Third Circuit’s decision in Gates imposes a high bar on certifying medical monitoring classes. Thus, even in the minority of states that recognize medical monitoring as a claim or remedy for plaintiffs who have not incurred physical injuries, application of the Gates standard substantially reduces the dangers posed by medical monitoring suits.
For more information about medical monitoring claims, please see the article written by Mayer Brown partners Herbert L. Zarov, Craig A. Woods, and Stephen J. Kane, “A Medical Monitoring Claims for Asymptomatic Plaintiffs: Should Illinois Take the Plunge?,” 12 De Paul J. Health Care L. 1 (2009).
For inquiries related to this Legal Update, please contact Stephen J. Kane at +1 312 701 8857.
For information about Mayer Brown’s Product Liability & Mass Torts group, contact Henninger S. Bullock at +1 212 506 2528, Michael A. Olsen at +1 312 701 7120, or Daniel L. Ring at +1 312 701 8520.