Guest Commentary
Carl A. Solano, Schnader Harrison Segal & Lewis LLP*
Last Term’s landmark Supreme Court decision in Wal-Mart Stores, Inc. v. Dukes sent a clear message: certifying a federal class action is serious business, and courts should not do it unless a “rigorous analysis” reveals issues common to all proposed class members that can be resolved by common proof. Last month, the U.S. Court of Appeals for the Third Circuit applied that teaching to an action seeking medical monitoring for a class consisting of the entire asymptomatic population of a small Illinois town. It held that the district court had correctly refused to certify the proposed class.
The action, Gates v. Rohm & Haas Co., arose from charges of environmental contamination resulting from alleged deposits of chemical waste material into a “lagoon” near Rohm and Haas’ 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 that Rohm and Haas disputed), two residents of the Village brought the class action and sought an order that Rohm and Haas pay for periodic MRIs and other tests of the town’s residents to screen for the illness. 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 could not be entitled to relief unless the level of that person’s chemical exposure imposed a risk of harm, but, even under the plaintiffs’ air dispersion theory, each town resident would have had a different exposure, depending on how much time the resident spent in the town. The plaintiffs tried to deal with this issue by using air models to present evidence of “average” exposure in the town over 25 years, but the court held this evidence insufficient because there was no proof that 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 EPA 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 too 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 Fifth (Castano v. Am. Tobacco Co., 1996), Sixth (Ball v. Union Carbide Corp., 2004; a conflicting Sixth Circuit decision that same year permitted a “conditional” certification, but that procedure no longer is permitted by the federal rules), Eighth (In re St. Jude Med. Inc., 2005), Ninth (Zinser v. Accufix Research Inst., 2001), and Tenth (Boughter v. Cotter Corp., 1995). There thus appears to be a developing consensus in the courts of appeals. The Gates decision, with its careful analysis and consistency with Wal-Mart, fits well within this trend.
*Mr. Solano, along with three of his Schnader Harrison colleagues, represented Rohm & Haas in the Third Circuit, with Mr. Solano arguing the case before the court.