Requests for class action certification of medical monitoring claims.

• Author: Campbell, Richard P.

IADC member Richard P. Campbell is a founder of Campbell & Associates P.C, a New England regional law firm based in Boston and engaged in both civil and criminal litigation. A graduate of the University of Massachusetts (B.A. 1974) and the Boston College Law School (J.D. 1974), he concentrates in the defense of major toxic tort, products liability and environmental cases.

Michelle I. Schaffer is an associate at the same firm. She is a graduate of Tufts University (B.A. 1985) and Northeastern University School of Law (J. D. 1988).

THERE continues to be an increase in the number and complexity of cases in which plaintiffs seek class action certification of personal injury claims arising from acute or long-term exposure to toxic substances.(1) The class representatives usually include several categories of claimants--persons alleged to have sustained the toxic exposure, as well as their estates, spouses and children. And the certification tends to be sought on multiple causes of action that extend beyond traditional theories of recovery. The multiple count complaints routinely include causes of action for negligence, breach of warranty, strict products liability, fraud, misrepresentation, negligent or intentional infliction of emotional distress, violation of consumer protection statutes, and conspiracy.

For defendants, one of the most significant trends in these cases is that plaintiffs' counsel are seeking to expand the scope of recovery by including class-wide claims for medical monitoring, by which plaintiffs seek compensation for a toxic exposure that not yet has produced any physical manifestation of injury or disease.

When courts are faced with evaluating requests for class action treatment of toxic exposure-related medical monitoring claims, they must balance two competing considerations. Although the treatment on a class-wide basis of the individualized questions of liability, causation and damages presented in toxic tort cases runs contrary to the requirements of Rule 23 of the Federal Rules of Civil Procedure and its state counterparts, courts consider and in some cases approve class certification of certain toxic exposure cases to achieve judicial economy. In light of the broad discretion enjoyed by courts in determining whether an action is maintainable as a class action, it is defense counsel's challenge in opposing certification of claims for medical monitoring to demonstrate that the individual issues dominate so that little or no efficiency would be achieved by consolidation of the claims in one action.

What are the issues courts must consider in evaluating class action certification requests for medical monitoring claims in toxic exposure cases? What are the reasons that courts generally find certification to be inappropriate for such claims?

MEDICAL MONITORING CLAIMS

Claims for medical monitoring are becoming routine in cases arising from acute or long-term exposure to toxic substances.(2) Class-wide claims for medical monitoring are commonly asserted as potentially affording compensation to broad groups of plaintiffs who have sustained a toxic exposure but have no present physical manifestation of disease or injury other than the exposure.(3) Although the viability of a cause of action for medical monitoring has not yet been addressed in many jurisdictions, most courts that have recognized such claims have determined that even in the absence of physical disease, a plaintiff should be able to recover the cost of diagnostic medical evaluation proved to be proximately caused by the defendant's wrongdoing.(4)

As one court explained:

In recent years medical science has come to understanding

that certain exposures can cause a disease

with a protracted latency period, which may

not manifest itself for many years. Under these

circumstances a prudent physician could order

preventative measures and periodic future testing,

in order to have the best opportunity for early detection

and treatment of die full blown disease, if

and when it might manifest itself. It is the combination

of the traditional tort policy of compensation

for reasonable diagnostic procedures and the

medical understanding of diseases with protracted

latency periods that have led courts to order prospective

medical monitoring, where liability is

clearly established and medical experts assure the

necessity and value of the monitoring procedures.(5)

The required elements of proof necessary to recover medical monitoring damages vary slightly by jurisdiction. In Ayers v. Township of Jackson, the New Jersey Supreme Court held that medical surveillance damages would be appropriate if the plaintiff could establish that the monitoring is "reasonable and necessary," stating:

[T]he cost of medical surveillance is a compensable

item of damages where the proofs demonstrate,

through reliable expert testimony predicated

upon the significance and extent of exposure

to chemicals, the toxicity of the chemicals,

the seriousness of the diseases for which individuals

are at risk, the relative increase in the chance

of onset of disease in those exposed, and the value

of early diagnosis, that such surveillance to monitor

the effect of exposure to toxic chemicals is

reasonable and necessary.(6)

The Supreme Court of Utah in Hansen v. Mountain Fuel Supply Co. established an eight-part standard for recovery under Utah law: (1) exposure (2) to a toxic substance, (3) which exposure was caused by the defendant's negligence, (4) resulting in an increased risk (5) of a serious disease, illness, or injury (6) for which a medical test for early detection exists (7) and for which early detection is beneficial, meaning that a treatment exists that can alter the course of the illness, (8) and which test has been prescribed by a qualified physician according to contemporary scientific principles.(7)

In the Paoli R.R. Yard PCB Litigation, the Third Circuit predicted that the Supreme Court of Pennsylvania would recognize a cause of action for medical monitoring by requiring the following:

1. Plaintiff was significantly exposed to a

   proven hazardous substance through the negligent

   actions of the defendant.

2. As a proximate result of exposure, plaintiff

   suffers a significantly increased risk of contracting

   a serious latent disease.

3. That increased risk makes periodic diagnostic

   medical examination reasonably necessary.

4. Monitoring and testing procedures exist

   which make the early detection and treatment of

   the disease possible and beneficial.(8)

   The court noted further that these factors would have to be proved by competent medical testimony.

   Despite the differences in the approaches to recovery of medical monitoring damages, proof of the following elements is uniformly required: exposure, proximate causation, increased risk of disease, and the necessity and usefulness of medical monitoring. Thus, plaintiffs must prove individually that they have an increased risk of disease warranting a reasonable physician to prescribe medical monitoring. Because medical monitoring claims involve numerous individualized issues, many courts have found that they cannot efficiently or fairly be adjudicated on a class action basis.

   PREREQUISITES TO MEDICAL MONITORING CLASS ACTIONS

   Plaintiffs seeking class certification are required to establish that the action meets the requirements of Rule 23 or the state procedural counterpart. That rule provides that one or more members of a class may sue as representative parties on behalf of the class only if the four prerequisites set forth in Rule 23(a) are met and the action qualifies as one of the four types of class actions set forth in Rule 23(b).

   Rule 23(a) lists the four prerequisites as:

   (1) the class is so numerous that joinder of all

   members is impracticable, (2) there are questions

   of law or fact common to the class, (3) the claims

   or defenses of the representative parties are typical

   of the claims or defenses of the class, and (4)

   the representative parties will fairly and adequately

   protect the interests of the class.

   Rule 23(b) allows for class action certification under the following circumstances: if the prosecution of separate actions by or against individual members of a class would create a risk of inconsistent or varying adjudications regarding individual class members establishing incompatible standards of conduct for the party opposing the class (a Rule 23(b)(1)(A) class action) or would substantially impair or impede the ability of others to protect their interests (a Rule 23(b)(1)(B) class action); if the party opposing the class has acted or refused to act on grounds applicable to the class, thereby making final injunctive relief or declaratory relief appropriate with respect to the class as a whole (a Rule 23(b)(2) class action); or if questions of law or fact common to the members of the class predominate over questions affecting only individual members and the class action is superior to other methods of adjudicating the controversy (a Rule 23(b)(3) class action).

   Plaintiffs seeking class certification bear the burden of proving that the action satisfies each of the requirements of Rule 23(a) and qualifies as a class action under one of the alternative requirements of Rule 23(b).(9) A class action should be certified only "if, after a `rigorous analysis,' the trial court is satisfied that the requirements of Rule 23 have been met."(10)

   1. Rule 23(a) Analysis

   Although the requirements of Rule 23(a) are mandatory, courts appear to apply a relatively relaxed standard in evaluating whether they have been met. In toxic exposure cases, courts generally find that the proposed class satisfies the requirements of Rule 23(a).(11)

1. Numerosity

   The "numerosity" prerequisite of Rule 23(a)(1) requires that the plaintiffs prove that the class is "so numerous that joinder of all members is impracticable." Plaintiffs cannot rely on speculation as to the number of potential claimants to meet this requirement,(12) but because...