Mixed Results for Diet-Drug Medical Monitoring Claims.
Writing in the December newsletter of the Class Action and Multi-party Litigation Committee, D. Jeffrey Campbell and Jonathan R. Kuhlman of Porzio, Bromberg & Newman, Morristown, New Jersey, discuss the pursuit of class certification by the plaintiffs' bar:
The relentless pursuit of class certification in product liability actions by the plaintiffs' bar, particularly when medical monitoring is one form of relief demanded, goes on unabated. The newest battleground is the complex litigation involving the diet drugs fenfluramine, phentermine and dexfenfluramine. Plaintiffs' success in obtaining limited class certification in two of four recent state court actions has greatly increased potential liabilities posed to drug manufacturers and other defendants whose products are the focus of mass tort claims.
Class action the way to go
In the cases filed against the diet drug manufacturers, plaintiffs generally allege that the use of these drugs can cause injury in the form of pulmonary hypertension and heart valve irregularity. The relatively small value of each individual claim and the absence of disease in many claimants have led plaintiffs' counsel to appreciate and actively seek the economic benefits of class certification, especially for medical monitoring.
State courts managing the diet drug litigation have split on the issue of class certification. Courts in New Jersey and Arkansas denied certification, while those in Texas and Washington granted it when the putative class was limited to plaintiffs seeking injunctive relief in the form of medical monitoring. Only the New Jersey court, however, issued a comprehensive written opinion setting forth the basis of its decision.
A review of these cases makes it clear that the unsettled and conflicting case law on this issue and the encouragement that the plaintiffs' bar has received from the Washington and Texas decisions have marked this as an issue that is going to be litigated extensively in future cases.
New Jersey turns it down
On October 7, 1998, Judge Marina Corodemus of the Superior Court of New Jersey, Middlesex County, issued a comprehensive, 44-page opinion denying the plaintiffs' motion in nine separate actions seeking class certification for medical monitoring against two diet drug manufacturers. In re Diet Drug Litigation, Case Code 240.
Although the plaintiffs' complaints alleged negligence, strict liability, failure to warn, violations of New Jersey's Product Liability Act, breach of warranty, misrepresentation, violation of the New Jersey Consumer Fraud Act, fraud by concealment, punitive damages, and compensation for medical monitoring, the plaintiffs sought class certification only for the claims for medical monitoring, reimbursement for costs of the drugs taken and previously incurred examination costs, and punitive damages. Class relief for present and continuing personal injures was not sought. Class certification was sought under New Jersey Rule 4:32, which is modeled after Federal Rule of Civil Procedure 23.
Strategically, the plaintiffs' counsel was attempting to carve out certain claims from the original complaints in order to present a cohesive group that could withstand the requirements for class certification. The court, however, was quick to point out this flawed approach, stating that "the plaintiffs, in an attempt to create a cohesive and adequate class by limiting their claims, have complicated matters." Although Judge Corodemus found that plaintiffs' proposed medical monitoring class met the numerosity, commonality, typicality and adequacy prongs of Rule 4:32, she concluded that under New Jersey law, "class members may not ignore one claim against a defendant, join in a medical monitoring class and bring separate actions for present, personal injury manifestations."
Carving up the baby
Judge Corodemus held that plaintiffs' attempt to limit relief created an "intolerable position" for the court, which is prohibited by New Jersey's entire controversy doctrine requiring mandatory joinder of all claims that arise from the same transaction. Absent class members would be prohibited from pursuing personal injury claims because the representatives chose to limit their claims. Consequently, Judge Corodemus held that the plaintiffs could not properly serve as class representatives, even if the court were to certify a class pursuant to Rule 4:32-1(b), which parallels Federal Rule 23(b).
The court then addressed the plaintiffs' contention that a class may be certified under Rule 4:32-1(b)(2), which governs class certification in cases in which only injunctive relief is sought. She noted that medical monitoring may be an appropriate form of relief in a class action under certain circumstances. She further held that a medical monitoring class may be certified under Rule 4:32-1(b)(2) because "the establishment of a fund for monitoring and research is injunctive in nature and could be established under this court's equity powers."
Nevertheless, the plaintiffs' attempt to carve out claims to create a medical monitoring fund precluded class certification. Judge Corodemus also denied class certification for compensatory damages (cost of drugs and prior examinations) and punitive damages. The court held that the compensatory damages sought were legal in nature and could not be transformed into equitable relief by channeling them through a medical monitoring fund. As to punitive damages, the court held that such claims "raised too many individual factual questions" for certification.
Common issues not predominate
Judge Corodemus also denied class certification under Rule 4:32-1(b)(3), finding that common issues did not predominate in the class and that the class action approach was not a superior way to adjudicate the claims. As to the predominance prong, the court stated that each plaintiff had a varied and particular health history, and that the risks associated with taking the drugs depended on individual habits and risk factors. Therefore, individual issues concerning causation and defendants' affirmative defenses predominated.
As to the superiority prong, the court stated that each of the plaintiffs had a "significant interest in individually controlling his or her rights because the amounts of money at stake are not so small to prevent independent adjudication."
Judge Corodemus said that judicial economy would not be served by certifying a class because the litigation involves multiple issues that the trier of fact must address for each individual class member.
Arkansas denies certification
Similarly, at a hearing on October 20, 1998, Judge Kim M. Smith of the Circuit Court of Washington County, Arkansas, denied the plaintiffs' motion for class certification in an oral opinion from the bench in Baker v. Wyeth-Ayerst Laboratories, No. CIV 97-1192. The plaintiffs did not seek to limit certification to a medical monitoring class, but rather sought class certification of all claims pursuant to the state counterpart of Federal Rule 23(b)(3).
As in New Jersey, the court found that the proposed class met the numerosity, commonality, typicality and adequacy prongs and stated that "the main issues come down to, do the common issues in this case predominate over the individual or different issues, and is the class action in this particular case a superior method of disposing of these cases?" In answering both of these questions in the negative, Judge Smith relied on Arkansas case law and secondary authority that indicate that class certification does not provide an adequate method of claim resolution in products liability cases, especially in cases with allegations of present and future injuries.
Too many differences
As to the specific cases at hand, Judge Smith stated that plaintiffs have different alleged medical conditions, different doctors, different levels of information concerning the drugs received from the different doctors, different drugs and combinations thereof that were taken, different durations of taking the drugs, different medical histories, and different injuries. "We have some with no physical sign of injury, that are seeking the medical monitoring claim or money to seek a medical examination," the court declared. "We have others who are claiming physical injuries for which they seek damages."
Consequently, Judge Smith concluded that "when we have to weigh [these individual differences] and look at the matter as far as the predominance, ... the individual differences predominate over the common issues." Based on this finding, Judge Smith summarily held that class certification was not a superior method for resolving the cases.
Washington goes the other way
Having reviewed both the New Jersey and Arkansas rulings, Judge Richard J. Schroeder of the Superior Court of Washington, Spokane County, issued an oral opinion on October 23, 1998, granting plaintiffs' motion for class certification in St. John v. A.H. Robins Co., Cause No. 97-2-06368-4. The plaintiffs' motion was restricted to a request for a medial monitoring class pursuant to Washington Civil Rules 23(a) and (b)(2), which parallel the Federal Rules. Judge Schroeder was faced with the same decision as the New Jersey court: whether a class could be appropriately certified for injunctive relief only.
In summary fashion, he found that plaintiffs' pleadings satisfied the numerosity, commonality, typicality and adequacy prongs of the rule. After commenting on the helpfulness of Judge Corodemus's written opinion, Judge Schroeder held "that since the case is narrowed as it has been to requesting a fund strictly for providing an examination or examinations for monitoring, that this is a request for equitable relief and does fall under CR 23(b)(2), and that therefore, based upon all of those considerations, I am going to grant the motion for certification."
The court, however, left open the possibility of limiting the members of the class to persons who have taken the drugs for a minimum amount of time, if evidence were to be presented as to the amount of time required for the drugs to have some adverse effect or the quantity of drugs required to result in an adverse effect. Likewise, he left open the possibility of establishing sub-classes, based primarily on the drugs or combinations of drugs taken.
Texas grants certification
Last, in a painfully brief ruling from the bench on October 14, 1998, Judge Fred Edwards of the Ninth Judicial District Court, Montgomery County, Texas, certified a statewide medical monitoring class in diet drug litigation. He held that under the court's injunctive power, the court is permitted to frame a remedy to rectify the problem, and he proceeded to certify the class. The court stated that "the plaintiffs have put forth [a] sufficient amount of evidence for this trial court, at least, to rule in favor of the class certification."
Plaintiffs' bar relentless
As evidenced by these recent motions and rulings on class certification, the plaintiffs' bar is relentless in its attempts to obtain class certification in products liability cases. While defendants are usually successful in defeating class treatment for damages that are legal in nature, plaintiffs have had greater success in certifying classes that seek only injunctive relief.
Defense counsel must aggressively and convincingly demonstrate why even these limited classes, in the words of New Jersey's Judge Corodemus, create an "intolerable position" for the courts. Only then will defendants succeed in preventing plaintiffs' counsels' efforts to deluge the courts with quantity over substance.