Mixed Results for Diet-Drug Medical Monitoring Claims.

Recognizing that a wide range of practical and helpful material appears in the newsletters prepared by committees of the International Association of Defense Counsel, this department highlights interesting topics covered in recent newsletters and presents excerpts from them.

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...