Published in the November 2010 issue of the Defense Research Institute\'s For the Defense magazine.

1. Product LiabiLity
A Less Attractive
Investment for the Has Dukes
Plaintiffs’ Bar
Killed Medical
By Jennifer Quinn-Barabanov Monitoring?
The practical impact From a corporate defendant’s perspective, a medical mon-
on the certification of itoring class action, which can aggregate the claims of
these class actions is so thousands of plaintiffs seeking decades worth of extensive
unfavorable that it seems medical testing costs, presents one of the most serious
unlikely that these claims litigation risks in the product liability
and toxic tort arena. While much ink has
bar for all class plaintiffs under either rule,
Federal Rule 23(b)(2) or Federal Rule 23(b)
can recover their past been spilled about the impact of the recent
United States Supreme Court decision in
(3), to demonstrate commonality to sup-
port certification. Lastly, Dukes, in dicta,
status as potent threats. Dukes v. Wal-Mart Stores, Inc., 131 S. Ct.
2541 (2011), on employment litigation, far
endorses Daubert scrutiny of expert testi-
mony offered during the class certification
less attention has been paid to the conse- stage—a more rigorous approach than pre-
quences of the Dukes decision for medical viously adopted by several courts of appeal.
monitoring claims in the federal courts. By substantially diminishing certifi-
In fact, Dukes represents a potentially cation chances, reducing the potential
fatal blow to medical monitoring class advantages of medical monitoring class
actions because it raises substantial legal actions, and increasing litigation costs,
and practical obstacles to certification of Dukes makes medical monitoring claims
those claims. Most importantly, Dukes much less attractive investments for the
creates serious doubt that courts can ever plaintiffs’ bar. While Dukes has not killed
properly certify medical monitoring claims medical monitoring class actions entirely,
under Federal Rule of Civil Procedure 23(b) as a practical matter, it has left them on
(2), which plaintiffs’ attorneys have tradi- life support.
tionally relied on to aggregate the maxi-
mum number of claims in a mandatory The Attractiveness of Medical
class without complying with the predomi- Monitoring Classes
nance, superiority, and notice requirements Medical monitoring, recognized in more
triggered by Federal of Rule of Civil Proce- than a dozen states, allows a plaintiff to
dure 23(b)(3). In addition, Dukes raises the recover the costs associated with medical
■ Jennifer Quinn-Barabanov is a partner in the Washington, D.C., office of Steptoe & Johnson LLP, where she is a member of
the firm’s Litigation Department. Ms. Quinn-Barabanov concentrates her practice on class actions, mass torts, toxic torts, prod-
uct liability matters, and other complex disputes. Ms. Quinn-Barabanov has successfully defeated class certification in sev-
eral cases seeking medical monitoring relief. She is a member of DRI’s Toxic Torts and Environmental Law, Product Liability, and
Women in the Law Committees.
© 2011 DRI. All rights reserved. For The Defense ■ November 2011 ■ 51

2. Product LiabiLity
testing that he or she claims has become Settlements and verdicts in medical mon- under the circumstances, including indi-
medically necessary to monitor his or her itoring cases brought by large classes have vidual notice to class members who can
health as a result of exposure to a haz- reached into the hundreds of millions of be identified with reasonable effort.” Fed.
ardous substance caused by a defendant’s dollars. R. Civ. P. 23(c)(2)(B). And, as mentioned,
wrongful conduct. Although the require- From the plaintiffs’ bar’s perspective, plaintiffs ordinarily bear the costs associ-
ments vary somewhat from state to state, a medical monitoring claims’ attractive- ated with fulfilling the class notice require-
plaintiff seeking medical monitoring gen- ness has depended significantly on having ment; the sometimes substantial costs can
erally must prove a significant exposure to the ability to secure certification for them deter plaintiffs from filing a proposed class
a hazardous substance as a result of a defen- as mandatory class actions for injunctive action. See Eisen v. Carlisle & Jacquelin, 417
relief under Federal Rule of Civil Proce- U.S. 156, 167–68 (1974).
dure 23(b)(2). Federal Rule 23(b)(2) applies
when “the party opposing the class has Medical Monitoring Was Already Sick
As Dukes makes “pellucidly acted or refused to act on grounds that Even before the Supreme Court issued a
apply generally to the class, so that final ruling in Dukes, plaintiffs seeking class
clear,” a requested remedy’s injunctive relief or corresponding declar- certification of medical monitoring claims
atory relief is appropriate respecting the already faced an uphill battle.
equitable nature does not class as a whole.” According to the advi- The Class Action Fairness Act (CAFA)
sory committee note, “this [Federal Rule expanded the federal courts’ diversity juris-
render a claim certifiable 23] subdivision does not extend to cases diction to cover, with limited exceptions,
in which the appropriate final relief relates most class actions against nonresident de-
under Federal Rule 23(b)(2); exclusively or predominantly to money fendants worth more than $5 million. 28
damages.” U.S.C. §1332(d). As a result, CAFA forced
a proposed class must also Certifying a class under Federal Rule many plaintiffs seeking medical monitor-
23(b)(2) forms a “mandatory” class, mean- ing into the federal courts instead of state
request some injunctive ing that class members do not routinely courts, which have traditionally applied
have an opportunity to opt out, which in class action requirements more leniently.
or declaratory relief. turn, means that plaintiffs avoid the costs See In re Welding Fume Prod. Liab. Litig.,
associated with providing notice to poten- 245 F.R.D. 279, 306, 308 (N.D. Ohio 2007)
tial class members as required under Fed- (analyzing state and federal cases involv-
dant’s tortious conduct, which has proxi- eral Rule 23(b)(3). Federal Rule of Civil ing identical “mass torts” and concluding
mately caused a significantly increased risk Procedure 23(b)(2) thus permits plaintiffs’ that state courts, even those applying rules
that the plaintiff will contract a serious, attorneys to aggregate the maximum num- identical to Fed. R. Civ. P. 23, have been far
latent disease and made it reasonably nec- ber of potential claims for the minimum more willing to certify medical monitor-
essary for the plaintiff to undergo regular, level of investment. In addition, Federal ing classes).
diagnostic medical testing that would not Rule 23(b)(2) does not require plaintiffs Although several federal district courts
have been necessary without the exposure to demonstrate predominance of com- have certified medical monitoring classes,
to the hazardous substance. See Ayers v. mon, as opposed to individualized, issues, every federal appellate court that has exam-
Jackson Tp., 525 A.2d 287, 312, 106 N.J. 557, or that a class action is superior to other ined a proposed medical monitoring class
606 (N.J. 1987); Bower v. Westinghouse, 522 possible methods of resolving the claims. has refused certification. See Barnes v. Am.
S.E. 2d 424, 432–33, 206 W.Va. 133, 141–42 The predominance requirement of Federal Tobacco Co., 161 F.3d 127 (3d Cir. 1998),
(W. Va. 1999); Potter v. Firestone, 863 P.2d Rule 23(b)(3) is more demanding than the cert. denied, 526 U.S. 1114 (1999); Ball v.
795, 824–25, 25 Cal. Rptr. 2d 550, 579–80 commonality requirement that applies to Union Carbide Corp., 385 F.3d 713, 728
(Cal. 1993); Hansen v. Mountain Fuel Sup- all class actions. See advisory committee’s (4th Cir. 2004); In re St Jude Med., Inc., 422
ply Co., 858 P.2d 970, 979 (Utah 1993). note to 1966 Am. to Fed. R. Civ. P. 23. Man- F.3d 1116, 1120 (8th Cir. 2005); In re St Jude
Medical monitoring claims are expen- ageability also plays a greater role when a Med., Inc., 522 F.3d 836, 840 (8th Cir. 2008),
sive to litigate. They typically depend on court evaluates whether to certify a Federal reh’g denied, 522 F.3d 836 (8th Cir. 2008);
complex scientific proof and expert tes- Rule of Civil Procedure 23(b)(3) class than Zinser v. Accufix Research Inst., Inc., 253
timony. At the same time, the medical when a court evaluates whether to certify a F.3d 1180, 1196, amended, 273 F.3d 1266
testing costs that a single plaintiff can Federal Rule 23(b)(2) class. See Fed. R. Civ. (9th Cir. 2001); Boughton v. Cotter Corp.,
recover typically are not much. As a result, P. 23(b)(3)(D). 65 F.3d 823 (10th Cir. 1995).
it usually only makes economic sense for In a Federal Rule 23(b)(3) class, more- With the addition of Federal Rule of
plaintiffs who are not otherwise injured over, members of the proposed class must Civil Procedure 23(f) in 1998, the threat
to pursue aggregated medical monitoring receive notice of the action and an oppor- of appellate review became more potent.
claims, for example, on behalf of a class. tunity to opt out, for example, to pursue Federal Rule 23(f) authorizes parties to
In aggregate, medical monitoring claims their own individual claims. The notice petition for immediate appellate review
can have enormous benefits for plaintiffs. must be “the best notice that is practicable of a certification decision without leave of
52 ■ For The Defense ■ November 2011

3. the district court. Although such appellate with a request for prospective injunctive claim for future damages.’” (quoting Ball v.
review is discretionary, Federal Rule 23(f) relief under Federal Rule 23(b)(2) because Joy Techs., 958 F.2d 36, 39 (4th Cir. 1991));
provides an automatic opportunity to seek the back-pay claims were “equitable in Hansen, 858 P.2d at 976–79.
appellate review without litigating a case nature.” 131 S. Ct. at 2560. The Court char- Medical monitoring costs remain dam-
to a final judgment, which rarely happens acterized the equitable nature of the relief ages whether a defendant pays them as a
anyway, since class certification typically as “irrelevant” because “[t]he Rule does lump sum or through a court-supervised
prompts settlement. not speak of ‘equitable’ remedies gener- monitoring fund. Ayers, the first court
In addition, plaintiffs seeking medical ally but of injunctions and declaratory to endorse using such funds, character-
monitoring have found themselves on the judgments. As Title VII itself makes pellu- ized them as “a highly appropriate exer-
wrong side of several recent federal legal cidly clear, backpay is neither.” Id. Thus, as cise of the court’s equitable powers” that
trends that have made it more difficult to Dukes makes “pellucidly clear,” a requested encouraged plaintiffs to be monitored and
obtain class certification generally in the remedy’s equitable nature does not ren- ensured that defendants only paid for the
federal courts. These trends among fed- der a claim certifiable under Federal Rule costs of tests that plaintiffs received. 525 A.
eral courts include increased willingness 23(b)(2); a proposed class must also request 2d at 609–610, 106 N.J. at 314–15 (empha-
to resolve factual disputes that overlap with some injunctive or declaratory relief. Id. sis added). See also Hansen, 858 P.2d at 982
the merits of plaintiffs’ claims at the certifi- While the Supreme Court declined to (“[W]e do not mandate a trust fund, leav-
cation stage, tightened standards requiring decide whether or not Federal Rule 23(b)(2) ing it to the trial court to fashion a suitable
judicial findings to support courts’ deter- “applies only to requests for such declara- equitable remedy….”) (emphasis added).
minations that plaintiffs have met Fed- tory or injunctive relief and does not autho- Even if a court-administered fund can
eral Rule 23 requirements, clarification of rize certification of monetary claims at properly be characterized as an equita-
the applicable burden of proof for satisfy- all,” it rejected a traditional analytical ble remedy, it does not transform medical
ing Federal Rule 23, and increased scrutiny framework that permitted certification monitoring into injunctive relief.
of expert opinions offered during the cer- of damage claims as long as they did not Under Dukes, the distinction between
tification stage. The Supreme Court Dukes predominate over requests for injunctive an equitable remedy and an injunctive one
decision, in several ways, represents a cul- or declaratory relief. Id. at 2557, 2557–58. is crucial. In medical monitoring cases,
mination of these unfavorable federal court The Supreme Court left open the question however, many courts have made the same
trends for plaintiffs seeking class treatment “whether there are any forms of ‘inciden- mistake as the Dukes plaintiffs’ attorneys,
of medical monitoring claims. tal’ monetary relief that are consistent with improperly equating an equitable remedy
the interpretation of Rule 23(b)(2) we have with an injunctive one potentially certifi-
Injunctive Relief or Money Damages? announced and that comply with the Due able under Federal Rule 23(b)(2). The lead-
Before the Supreme Court decision in Dukes, Process Clause.” Id. at 2561 (citing Allison ing case typically relied on by plaintiffs’
whether a court should categorize medical v. Citgo Petroleum Corp., 151 F.3d 402, 415 attorneys to support Federal Rule 23 (b)(2)
monitoring as a claim for injunctive relief, (5th Cir. 1998)). certification, Day v. NLO, Inc., evidences
which a court could properly certify under By holding that an equitable remedy this mistake. 144 F.R.D. 330, 335–36 (S.D.
Federal Rule 23(b)(2), or money damages, cannot support a Federal Rule 23(b)(2) Ohio 1992), rev’d on other grounds, 5 F.3d
potentially certifiable under Federal Rule class, Dukes undermines plaintiffs’ ability 154 (6th Cir.1993). Day cites Ayers and Han-
23(b)(3), was an issue that the plaintiffs’ to obtain Federal Rule 23(b)(2) certifica- sen as endorsing medical monitoring funds
bar appeared to have won. Dukes cast this tion by recasting claims for monetary relief as a “use of the Court’s injunctive powers,”
long-standing and wrongly decided line of as “equitable.” Reexamining the origins of when in fact they characterized such funds
authority into significant doubt. By clarify- medical monitoring demonstrates that it is as an exercise of the each court’s equitable
ing that Federal Rule 23(b)(2) classes must precisely the kind of claim that courts and powers. Id. (citations omitted). The game
seek injunctive, rather than simply “equita- plaintiffs’ attorneys have mischaracterized of telephone continued from there, with
ble” relief, Dukes reopens the debate about in this way to qualify improperly for Fed- many district courts following Day and its
whether a court can ever certify medical eral Rule 23 (b)(2) certification. incorrect reasoning. E.g., Yslava v. Hughes
monitoring claims to form a mandatory In Ayers, the landmark decision recog- Aircraft Co., 845 F. Supp. 705, 713 (D. Ariz.
Federal Rule 23(b)(2) class. Moreover, by re- nizing medical monitoring, the New Jersey 1993); Craft v. Vanderbilt Univ., 174 F.R.D.
jecting the traditional analytical framework Supreme Court held “that the cost of med- 396, 406 (M.D. Tenn. 1996) (citing cases).
for determining whether classes seeking el- ical surveillance is a compensable item of With some notable exceptions, e.g., Zin-
ements of monetary relief can properly re- damages.” Ayers, 106 N.J. at 606, 525 A.2d ser, 253 F.3d at 1196 and Boughton, 65
ceive certification under Federal Rule 23(b) at 312 (emphasis added). See also Potter, 25 F.3d at 827, most courts characterized pro-
(2), the Supreme Court has created the con- Cal. Rptr. 2d at 579, 863 P.2d at 824 (“[T]he posed medical monitoring funds as injunc-
ditions for lower courts to reexamine this cost of medical monitoring is a compensa- tive remedies that courts could potentially
question afresh. ble item of damages….”); Bower, 206 W.Va. certify under Federal Rule 23(b)(2). Some
In Dukes, a unanimous Supreme Court at 138–39, 522 S.E. 2d at 429–30 (“As the courts’ certification decisions turned on
rejected the plaintiffs’ contention that a Fourth Circuit correctly surmised, a claim the intricacies of the wording of the request
court could certify back-pay claims along for medical monitoring is essentially ‘a for relief, specifically, if the request sought
For The Defense ■ November 2011 ■ 53

4. Product LiabiLity
a program, which was potentially certifi- egorized as injunctive or monetary relief.” whether courts should certify mandatory
able under Federal Rule 23(b)(2), or a fund Gates v. Rohm & Haas Co., F. 3d (3d medical monitoring classes at all, whereas
that resembled a payment of money dam- Cir. 2011), 2011 WL 3715817, at *5 (Aug. 25, in the past, they have typically lost this
ages, which was not. E.g., Zinzer, 253 F.3d at 2011). The Third Circuit declined to resolve issue. See 131 S. Ct. at 2560,
1195–95. One court described the distinc- the issue but appeared to acknowledge that This is not to say that plaintiffs’ attor-
tion between a medical monitoring claim medical monitoring incorporates at least neys cannot close this window of opportu-
certifiable under Federal Rule 23(b)(2) and some aspects of monetary relief. Id. (“[W]e nity for defendants. In addition to relying
one that was not as follows: need not determine whether the monetary on previous cases that went their way and
A court-administered fund which goes aspects of plaintiffs’ medical monitoring distinguishing Dukes as an employment
claims are incidental to the grant of injunc- case, plaintiffs’ attorneys can take practi-
tive or declaratory relief.”). As a result, the cal steps to try to preserve Federal Rule of
Third Circuit expressed skepticism about Civil Procedure 23(b)(2) certification. Since
Medical monitoring the viability of mandatory medical moni- appropriately characterizing medical mon-
toring classes, noting that “[i]n light of the itoring relief arguably depends on state law,
costs remain damages Supreme Court’s recent decision in Wal- plaintiffs’ attorneys may pursue favorable
Mart Stores, Inc. v. Dukes… we question state court decisions characterizing medi-
whether a defendant whether the kind of medical monitoring cal monitoring as injunctive relief that they
sought here can be certified under Rule can later rely on to support their efforts to
pays them as a lump 23(b)(2) but we do not reach the issue.” Id. obtain Federal Rule 23(b)(2) certification in
(internal citation omitted). federal cases. See Gates, 2011 WL 3715817, at
sum or through a court- Although the Supreme Court in Dukes *5 (discussing whether medical monitoring
did not decide that Federal Rule 23(b)(2) is a monetary or injunctive remedy under
supervised monitoring fund. precludes certification of all claims for state law and Pennsylvania law in partic-
monetary relief, it suggested that other ular). Plaintiffs’ attorneys could also craft
courts should take this argument seri- proposed monitoring programs to require
beyond payment of the costs of moni- ously. 131 S. Ct. at 2557. A defense attorney more defendant involvement to bolster their
toring an individual plaintiffs’ health should make this argument and, in doing characterization of the relief as injunctive.
to establish the pooled resources for so, disaggregate the elements of plaintiffs’ Even if plaintiffs’ attorneys can convince
the early detection and advances in the proposed monitoring program into indi- a court that medical monitoring is injunc-
treatment of the disease is injunctive vidual components, most notably including tive relief, one likely practical consequence
in nature rather than “predominantly a fund. If Dukes precludes any request for of Dukes is that it will limit plaintiffs’ attor-
money damages” and therefore is prop- monetary relief by a Federal Rule 23(b)(2) neys’ ability to combine medical moni-
erly certified under Rule 23(b)(2). class, then a court will need to determine toring claims with other claims seeking
Gibbs v. E.I. DuPont de Nemours, 876 F. whether some relief requested by the class monetary relief, even arguably equitable
Supp. 475, 481 (W.D. N.Y. 1995). Apply- is monetary. A defense attorney should ones such as restitution, because including
ing this rationale, plaintiffs’ attorneys argue that medical monitoring is a claim these additional claims should significantly
packaged medical monitoring with other for damages that has often been equita- diminish the chance that a court would
forms of injunctive relief—medical exams, bly administered by the courts. Contrary certify a mandatory class under Federal
studies, data collection, dissemination of to significant precedent, it is not, properly Rule of Civil Procedure 23(b)(2).
health-related information and the like— understood, a claim for injunctive relief.
to bolster their argument that the claims Courts do not typically order defendants Medical Monitoring—An
were appropriate for Federal Rule 23(b)(2) to conduct medical testing. Defendants just Indivisible Remedy?
certification because any monetary relief pay for it. From a defendant’s perspective, Even if Dukes does not preclude Federal
was incidental and did not “predominate.” there is no meaningful difference between Rule of Civil Procedure 23(b)(2) certifi-
By eliminating the “predominance” test a court order to fund a medical monitoring cation of all medical monitoring claims,
in Dukes, the Supreme Court has created program and an order to pay money dam- it should preclude mandatory certifica-
the conditions for courts to revisit clas- ages, except that a defendant sometimes tion of the kind of relief requested by most
sifying medical monitoring as injunctive can make payments to a monitoring fund plaintiffs seeking medical monitoring to-
or monetary relief in a meaningful way. in phases over time. day. A court-supervised monitoring pro-
The rationale in cases such as Gibbs, and Even if the lower courts ultimately apply gram that includes a broad range of tests
there are many of them, is simply invalid the “incidental” monetary damages test, and is tailored to individual needs during
after Dukes. referenced but not adopted in Dukes, which the implementation phase fails to satisfy the
In fact, the Third Circuit, in the first would permit them to certify some mone- Supreme Court’s requirement that a Federal
decision involving a proposed medical tary damages claims under Federal Rule Rule 23(b)(2) class must seek an “indivisi-
monitoring class after Dukes, observed that 23(b)(2), Dukes has created an opportu- ble” injunctive remedy. See 131 S. Ct. at 2557.
“Medical monitoring cannot be easily cat- nity for defendants to win on the issue of The Third Circuit’s recent Gates decision
54 ■ For The Defense ■ November 2011

5. confirms that this argument is a power- the medical necessity of plaintiffs’ pro- A defense attorney has a strong argu-
ful weapon against certification of medical posed monitoring regime without further ment that unless a requested medical
monitoring claims. 2011 WL 3715817, at *5. individual proceedings to consider class monitoring regime applies to every class
To succeed on a claim for medical moni- members’ individual characteristics and member, a court cannot certify the claim
toring, plaintiffs must prove that, as a result medical histories and to weigh the bene- under Federal Rule 23(b)(2). If some class
of exposure to a hazardous substance or fits and safety of a monitoring program.”). members would need testing even if expo-
product, class members require diagnostic Several other courts have rejected class sure to a hazardous substance or product
testing that would not have been medically certification of medical monitoring claims had not occurred, a court cannot deter-
necessary without the exposure. Bower, 522 on these grounds, finding that resolving mine a defendant’s liability for the testing
S.E. 2d at 432, 206 W.Va. at 142; Ayers, 525 whether plaintiffs need medical monitor-
A.2d at 312, 106 N.J. at 606; Potter, 863 P.2d ing because of an exposure requires indi-
at 795, 824 25 Cal. Rptr. 2d at 579; Hansen, vidualized inquiries. E.g., In re St Jude
858 P.2d at 980 (citation omitted). Med., Inc., 425 F.3d at 1120 (overturning By eliminating the
Plaintiffs’ attorneys typically concede, as the district court’s certification for rea-
they must, that some class members would sons including that “each plaintiff’s need “predominance” test in
require the requested testing even if they (or lack of need) for medical monitoring
had not been exposed to a hazardous sub- is highly individualized.”); Rhodes v. E.I. Dukes, the Supreme Court
stance or product, because of their individ- DuPont de Nemours & Co., 253 F.R.D. 365,
ual characteristics (e.g., age, gender) and 380 (S.D. W.Va. 2008) (“[I]ndividual inqui- has created the conditions for
risk factors (e.g., smoking, obesity, family ries into the need for medical monitor-
history). In general, larger classes seeking ing… would destroy the cohesiveness of the courts to revisit classifying
more expansive monitoring regimens are class.”), aff’d, 636 F.3d 88 (4th Cir. 2011); In
particularly susceptible to this problem. Of Re Rezulin Prod. Liab. Litig., 210 F.R.D. 61, medical monitoring as
course, from the perspective of a plaintiffs’ 75 (S.D.N.Y.2002). See also Amchem Prod.,
lawyer, a medical monitoring claim’s value Inc. v. Windsor, 521 U.S. 591, 624 (1997) injunctive or monetary relief
depends on the size of the class and the (citation and quotation omitted) (affirm-
number of costly medical procedures cov- ing the Third Circuit’s reversal of a Fed. R. in a meaningful way.
ered by the proposed monitoring program. Civ. P. 23(b)(3) settlement class, noting that
As a result, in practice, this variable rem- the plaintiffs “will also incur different med-
edy issue arises in the vast majority of cases. ical expenses because their monitoring and “as to all the class members or as to none of
Even before Dukes, demonstrating that treatment will depend on singular circum- them.” Id. (internal quotation and citation
plaintiffs needed testing because of an stances and individual medical histories.”). omitted). A plaintiffs’ attorney in this situ-
exposure to a hazardous substance or prod- Typically, whether a plaintiffs’ attorney ation has not met the “indivisible” injunc-
uct, as opposed to some other reason, pre- could avoid this result has depended on tion requirement for Federal Rule 23(b)
sented the most serious obstacle to class his or her ability to convince a court that (2) certification. In Gates, the Third Cir-
certification. The Third Circuit, for exam- a medical monitoring program can be tai- cuit affirmed denial of class certification
ple, has questioned whether courts could lored to individual needs without running for medical monitoring on precisely this
ever determine that plaintiffs need medical afoul of Federal Rule 23(b)(2). A program, basis, holding that “‘[a] single injunction
testing on a classwide basis, reasoning that a plaintiffs’ attorney would argue, permits or declaratory judgment’” cannot “‘provide
each class member must prove that the each class member to consult with a doc- relief to each member of the class’ proposed
monitoring program he requires is dif- tor who can identify the court-ordered here.” 2011 WL 3715817, at *5 (citing Dukes,
ferent from that normally recommended tests that are appropriate to each individ- 131 S. Ct. at 2557).
in the absence of exposure. To satisfy ual’s needs. The “indivisible” injunction requirement
this requirement, each plaintiff must Dukes eviscerates this argument. The Su- will not necessarily disqualify every med-
prove the monitoring program that is preme Court made it absolutely clear that ical monitoring claim from Federal Rule
prescribed for the general public and claims for individualized relief… do not 23(b)(2) certification. Plaintiffs’ attorneys
the monitoring program that would be satisfy the Rule. The key to the (b)(2) class could potentially craft narrowly defined
prescribed for him. Although the gen- is “the indivisible nature of the injunc- proposed classes that would exclude indi-
eral public’s monitoring program can tive… remedy warranted… Rule 23(b)(2) viduals with existing risk factors and pro-
be proved on a classwide basis, an indi- applies only when a single injunction… pose fewer diagnostic tests to minimize
vidual’s monitoring program by defini- would provide relief to each member of the need for individual customization. For
tion cannot. the class. It does not authorize class cer- example, seeking mammograms for a class
Barnes, 163. F.3d at 141 (emphasis added). tification when each individual class of women under 40 who do not have a fam-
Accord Gates, 2011 WL 3715817, at *11 member would be entitled to a differ- ily history of breast cancer would put plain-
(“Plaintiffs’ proposed common evidence ent injunction… against the defendant. tiffs on stronger footing than seeking that
and trial plan would not be able to prove 131 S. Ct. at 2557. test as part of a proposed medical monitor-
For The Defense ■ November 2011 ■ 55

6. Product LiabiLity
ing program for an entire community that Before Dukes, many courts analyzed from the same event or practice or course
included men. commonality perfunctorily, interpreting of conduct that gives rise to the claims of
While plaintiffs’ attorneys have always the requirement as “easily met.” Baby Neal the class members, and if it is based on the
had to choose between pursuing a broad v. Casey, 43 F.3d 48, 56 (3d Cir. 1994) (cit- same legal theory.”)). Rather than focus on
class seeking substantial relief and a nar- ing 1 Newberg on Class Actions §3-10, at whether plaintiffs’ claims are based on the
rower class seeking more limited relief 3-50). Commonality was “satisfied if the same legal theory, Dukes emphasizes that
that a court would more likely certify, named plaintiffs share[d] at least one ques- “[c]ommonality requires the plaintiff to
Dukes substantially ratchets up the pres- tion of fact or law” with the prospective demonstrate that the class members ‘have
sure on attorneys asking courts to cer- class. E.g., id. suffered the same injury’…. This does not
The Dukes majority rejected this liberal mean merely that they have all suffered a
approach. It held that the relevant inquiry violation of the same provision of law.” 131
for determining if commonality is met is S. Ct. at 2551 (citing Falcon, 457 U.S. at 157)
A defense attorney not the existence of common questions, (emphasis added).
“but, rather, the capacity of a classwide Whether framed in terms of common-
should argue that medical proceeding to generate common answers ality or typicality, the focus in Dukes on
apt to drive the resolution of the litigation.” a common injury as a prerequisite to cer-
monitoring is a claim Id. at 2551 (quotation omitted). tifying a class is a positive development
Under the relaxed, pre-Dukes standard, for defendants confronted with medical
for damages that has attorneys pursuing medical monitoring monitoring claims because it is plaintiffs’
classes often satisfied commonality by greatest weakness. The injury at issue in
often been equitably focusing on the common issues related to a medical monitoring claim is the cost of
a defendant’s conduct and whether it was diagnostic testing that would not have been
administered by the courts. wrongful. See, e.g., Day, 851 F. Supp. at 7884 medically indicated without exposure to a
(“The focus of the case at bar is the behavior hazardous substance or product. And, this
of the defendants.”). As long as attorneys is precisely the issue that many courts have
tify medical monitoring classes to narrow could demonstrate that those common found requires individualized determina-
the scope of both the proposed classes and issues existed, potential differences among tions that prevent certification under Fed-
the requested relief. Such approaches may the class members, such as differences in eral Rule 23 (b)(2) and (b)(3). E.g., In re St
improve the chances of certification some- product usage, chemical dose, and the like, Jude Med., Inc., 425 F.3d at 1120 (revers-
what, but they also potentially reduce the did not defeat commonality. After Dukes, ing certification of Fed. R. Civ. P. 23(b)(2)
value of claims dramatically. plaintiffs’ attorneys will need to demon- class); In re St Jude Med., Inc., 522 F.3d at
strate that despite potential differences 840 (affirming denial of class certifica-
New Challenges for All Classes among plaintiffs belonging to a proposed tion under Fed. R. Civ. P. 23(b)(3)). Rely-
Moreover, plaintiffs cannot rely on Federal class, their individual claims “depend upon ing on Dukes, defense attorneys can now
Rule 23(b)(3) to avoid the negative con- a common contention… [which is] of such plague plaintiffs’ attorneys seeking medi-
sequences of Dukes. The Supreme Court’s a nature that it is capable of class-wide res- cal monitoring with this objection in the
decision raises substantial obstacles to cer- olution—which means that determination context of a court’s commonality determi-
tifying medical monitoring classes whether of its truth or falsity will resolve an issue nation as well.
plaintiffs’ attorneys pursue a Federal Rule that is central to the validity of each one of
23(b)(2) mandatory class or a Federal Rule the claims in one stroke.” 131 S. Ct. at 2551. Experts Subject to Daubert Scrutiny
23(b)(3) opt-out class. And these obsta- Most importantly, in Dukes the Supreme at the Certification Stage
cles are not unique to medical monitor- Court signaled that courts should toler- After Dukes, plaintiffs seeking medical
ing claims. ate less variation among class members in monitoring face an increased risk that
future classes than in the past. Commonal- defense attorneys will successfully chal-
Heightened Commonality ity and typicality, both required by Federal lenge and exclude expert testimony offered
Requirements Apply Rule 23(a), “tend to merge.” Gen. Telephone in support of class certification under
To obtain certification, all class plaintiffs Co. of Southwest v. Falcon, 457 U.S. 147, Daubert v. Merrell Dow Pharmaceuticals,
must satisfy the Federal Rule of Civil Pro- 158 n.13 (1982). Before Dukes, most courts Inc., 509 U.S. 579, 592–93 (1993) (holding
cedure 23(a)(2) requirement “that there found that “[e]ven relatively pronounced that expert testimony must be relevant and
are questions of law or fact common to the factual differences will generally not pre- reliable to be admissible).
class.” In Dukes, a majority of a divided clude a finding of typicality where there is a In recent years, parties have litigated
court substantially raised the bar for sat- strong similarity of legal theories.” Barnes, vigorously the level of scrutiny that courts
isfying this requirement, making it more 163 F.3d at 141 (quoting Baby Neal, 43 F.3d should apply to expert opinions offered
difficult for all plaintiffs, including those at 58 and citing 1 Newberg on Class Actions during the class certification stage. While
seeking medical monitoring, to obtain §3.15, at 3-78 (“[f]actual differences will not recently courts have tended to scrutinize
class certification. render a claim atypical if the claim arises class-related experts more rigorously under
56 ■ For The Defense ■ November 2011

7. Daubert’s relevance and reliability criteria, “exhaustive and conclusive Daubert inquiry through class actions typically rely heavily
some courts of appeal have permitted more before the completion of merits discovery on expert testimony in their efforts to sat-
lenient review at the certification stage cannot be reconciled with the inherently isfy Federal Rule 23.
than at trial. Compare American Honda preliminary nature of pretrial evidentiary Precertification Daubert motions chal-
Motor Co. v. Allen, 600 F.3d 813, 815–16 and class certification rulings.” In re Zurn lenging plaintiffs’ experts are now likely
(7th Cir. 2010) (“[W]hen an expert’s report Pex Plumbing Prod. Liab. Litig., 644 F.3d to become a ubiquitous feature of medical
or testimony is critical to class certifica- 604 (8th Cir. 2011). As an alternative, the monitoring litigation, to the extent that liti-
tion… a district court must conclusively Eighth Circuit affirmed the district court’s gation survives. Such motions practice will
rule on any challenge to the expert’s quali- “focused Daubert analysis which scruti- increase the already substantial costs and
fications or submissions prior to ruling on nized the reliability of the expert testimony uncertainties of medical monitoring class
a class certification motion. That is, a dis- in light of the criteria for class certification actions, making them less attractive invest-
trict court must perform a full Daubert and the current state of the evidence.” Id. ments to the plaintiffs’ bar.
analysis before certifying the class if the The “focused Daubert analysis” approved
situation warrants.”); Sher v. Raytheon, by the Eighth Circuit apparently requires a Conclusion
2011 WL 814379, at *3 (11th Cir.) (March court to apply Daubert criteria in evaluat- The Supreme Court’s Dukes decision has
9, 2009) (unpublished) (“[I]f the situation ing expert testimony during the class cer- made an already challenging legal environ-
warrants, the district court must perform tification stage, but it does not require, and ment for plaintiffs seeking medical moni-
a full Daubert analysis before certifying in some circumstances, may not permit, a toring even more difficult. If any medical
the class.”) with Blades v. Monsanto, 400 definitive ruling on its admissibility, for monitoring claims are certified in federal
F.3d 562, 575 (8th Cir. 2005) (holding that instance, if merits discovery has not con- court, they will likely be opt-out classes
“findings as to the experts’ disputes were cluded. Id. As Judge Gruender’s dissent ob- under Federal Rule 23(b)(3), and will
properly limited to whether, if appellants’ served, Dukes disapproved of the standard involve smaller classes seeking narrower
basic allegations were true, common evi- adopted by the Zurn majority. Id. relief than in the past. The diminished
dence could suffice, given the factual set- While the precise parameters of scrutiny potential value of medical monitoring
ting of the case, to show classwide injury.”); applied to expert testimony during class claims, combined with the increased risk
In re New Motor Vehicles Canadian Export certification remain unresolved, Dukes that plaintiffs’ experts’ testimony will be
Antitrust Litig., 522 F.3d 6, 26 (1st Cir. 2008) can fairly be characterized, at a minimum, excluded and that certification will ulti-
(holding that “when a Rule 23 requirement as moving the poles of the debate. In light mately be denied, will likely result in fewer
relies upon a novel or complex theory as to of Dukes, a court should not uncritically medical monitoring class actions being
injury… the district court must engage in a accept expert testimony challenged in con- filed in the federal courts in the future.
searching inquiry into the viability of that nection with class certification. A court Whether the plaintiffs’ bar can revive
theory and the existence of the facts neces- should conduct some review, based upon medical monitoring class actions in more
sary for that theory to succeed.”). Daubert criteria, of the relevance and reli- liberal state courts remains to be seen.
In Dukes, the Supreme Court in dicta ability of that expert testimony. Another aspect of Dukes detrimental to
addressed the emerging circuit conflict and Since plaintiffs bear the burden of show- plaintiffs is that it lays the groundwork for
apparently endorsed full-blown Daubert ing that they have met the Federal Rule of defense attorneys to challenge mandatory
scrutiny of expert opinions during the class Civil Procedure 23 requirements, the bur- classes certified in state courts on due pro-
certification stage. The Supreme Court den of increased scrutiny of expert testi- cess grounds. See 131 S. Ct. at 2559.
noted: “The District Court concluded that mony falls primarily on them. Plaintiffs While the plaintiffs’ bar has demon-
Daubert did not apply to expert testimony asserting medical monitoring claims will strated resilience in the face of past chal-
at the certification stage of class-action pro- especially feel the impact because virtu- lenges, the current legal environment and
ceedings. We doubt that is so.” 131 S. Ct. at ally every element of a medical monitoring its practical impact on medical monitor-
2553–54 (internal citation omitted). claim—hazardous substance, significant ing classes is so unfavorable that it seems
The Dukes opinion seemed to suggest exposure, increased risk of disease, med- unlikely medical monitoring class actions,
that defendants were destined to prevail on ical monitoring necessity—depends on at least in the federal courts and in the
this issue in the future, but not so. Only two expert testimony. For these reasons, plain- near-term, can recover their past status as
weeks later the Eighth Circuit held that an tiffs’ attorneys seeking medical monitoring potent threats.
For The Defense ■ November 2011 ■ 57