WLF Counsel's Advisory
Court Ruling Advances Trend Medical Monitoring Class Actions
By Carl A. Solano
September 23, 2011 (Vol. 19 No. 4)
The landmark U.S. Supreme Court decision Wal-Mart Stores, Inc. v. Dukes sent a clear message to courts: certifying a federal class action is serious business, and it should not be done unless a "rigorous analysis" reveals issues common to all proposed class members that can be resolved by common proof. In Gates v. Rohm & Haas Co., the U.S. Court of Appeals for the Third Circuit applied this teaching in a medical monitoring class action. The Third Circuit's decision affirming the district court's denial of class certification furthers the federal judiciary's growing consensus on this important litigation issue.
The action arose from charges of environmental contamination from alleged deposits of chemical waste material into a "lagoon" near Rohm and Haas's facility in Ringwood, Illinois. According to the plaintiffs, the material contained a chemical that degraded into vinyl chloride, an alleged carcinogen, and allegedly evaporated into the air, where it was carried over McCullom Lake Village, about a mile south of Ringwood. Claiming that exposure to above-normal levels of vinyl chloride might cause brain cancer (a claim Rohm and Haas disputed), two village residents filed a class action on behalf of all town residents who did not have brain cancer. They sought an order that Rohm and Haas pay for periodic MRIs and other tests that could screen for illness in each resident. In refusing to certify the proposed class, the district court held that differences in each resident's alleged exposure levels, risk from exposure, and tolerance of test methods made certification improper. The Court of Appeals agreed.
The plaintiffs had sought certification under Federal Rule 23(b)(2), which applies to class actions seeking injunctive relief. The Court of Appeals emphasized that certification requirements for a Rule 23(b)(2) class are stringent because entry of a single "indivisible" injunction applicable to all class members requires those members to have a "strong commonality of interests" that makes the class "cohesive." The court observed, "Because causation and medical necessity often require individual proof, medical monitoring classes may founder for lack of cohesion," and it held that this was such a case.
One particular issue requiring individual proof was the amount of vinyl chloride, if any, to which each class member was exposed. A class member would be entitled to relief only if the level of that person's chemical exposure imposed a risk of harm. Even under the plaintiffs' air dispersion theory, however, each town resident would have had a different exposure, depending on how much time the resident spent in the town. The plaintiffs tried to navigate around this problem by using air models to present evidence of "average" exposure in the town over 25 years. The court held this evidence insufficient, reasoning that the plaintiffs could not prove any resident's exposure was equal to that "average." The court was skeptical about "using modeling and assumptions that do not reflect the individual characteristics of class members."
The court also observed that individual physical differences would make the amount of exposure posing a health risk different for each resident. It rejected a proposal to use federal Environmental Protection Agency regulatory benchmarks to establish a common risk level for all residents, since those benchmarks were not designed for that purpose. In addition, the court held that each town resident would need a different medical monitoring protocol, depending on his or her personal health characteristics, and that this difference also made class certification inappropriate.
Gates is just the latest in a series of federal appellate decisions holding that medical monitoring cases are inappropriate for class certification. Other Circuits that have reached this conclusion include the Sixth (Ball v. Union Carbide Corp., 2004); Eighth (In re St. Jude Med. Inc., 2005); Ninth (Zinser v. Accufix Research Inst., 2001); and Tenth (Boughter v. Cotter Corp., 1995). The Gates decision, with its careful analysis and consistency with Wal-Mart, positively advances that trend.
Carl A. Solano is a partner in the Philadelphia office of the law firm Schnader Harrison Segal & Lewis LLP. Mr. Solano represented Rohm & Haas in the litigation discussed above.