United States: Nationwide Medical Monitoring Class Rejected

Procedural considerations often decide cases. Sometimes, weighty legal issues are reached through quirky procedural routes. When it comes to whether state tort law provides medical monitoring as a remedy for people who do not have a present compensable injury, that is a legal (and policy) issue. We have written many times that we think foundational principles of tort law run contrary to recognizing such relief and we have been pleased with the general trend of high courts rejecting medical monitoring for uninjured plaintiffs over the last roughly twenty years. (Like here, here, and here.) Class action as a vehicle for disposition of the claims of a multitude of plaintiffs over a common issue is a procedural issue. Class actions are the preferred—by plaintiff lawyers—mechanism for seeking medical monitoring and those cases tend to rise or fall on class certification. Another procedural issue that can be critical in class actions for medical monitoring, especially those seeking to cover plaintiffs who live in multiple states, is choice of law. How does that work?

Well, Almond v. Janssen Pharms., Inc., No. 202183, 2020 WL 6545892 (E.D. Pa. Nov. 6, 2020), is a fine illustration of the dynamic. First, some facts and a rant. Plaintiff had been prescribed defendants' prescription drug Elmiron to treat his interstitial cystitis (a serious bladder condition) and experienced no injuries for which he sought compensation. Instead, he sought to be the class representative for three classes of similarly uninjured people who had used the medication, those in Pennsylvania, those in Illinois, and those across the whole country. The premise was that these asymptomatic people without any diagnosed injury needed medical monitoring because of an allegedly undisclosed risk of a vision problem called pigmentary maculopathy. Those are the facts. Here is the rant. The plaintiff and defendants were from Pennsylvania, id. at *1 n.1, so the Illinois class did not make much sense. Also, the decision in Almond related to an amended complaint filed June 26, 2020, ten days after the FDA approved a labeling change that addressed the risk the amended complaint said was never in the label. Some of this detail in not in the decision, but can be found in a few minutes of searching the internet and finding sources like plaintiff law firm websites and the FDA's website. The inaccuracy in the amended complaint was apparently acknowledged by plaintiff in a brief, but the factual issue did not matter to the motion. Id. at *1 n.3. Nor did the fact that defendants sought to change the label in 2019, not long after the publications plaintiff cited. Id. We find this all pretty sleazy and wonder if what is left of the case will run into a strong preemption motion down the road.

The motion addressed in Almond was defendant's motion to strike the nationwide class action portion of the complaint, which basically teed up partial class certification and choice of law. We noted that the trend of rejecting medical monitoring had been going for about twenty years, but Pennsylvania was one of the early adopters of medical monitoring for uninjured plaintiffs. The familiar cases from the 1990s, Paoli, Simmons, and Redland Soccer, are still good law on medical monitoring, so it makes sense that the Almond plaintiff (lawyers) would try to have Pennsylvania law govern the proposed nationwide class. Plaintiff started by arguing that a case called Danganan v. Guardian Prot. Servs., 179 A.3d 9 (Pa. 2018), authorized a nationwide class under Pennsylvania law without requiring a choice of law analysis. Id. at *2. That was incorrect as Danganan performed a choice of law analysis in deciding that the class of California purchasers could sue under Pennsylvania law and did not obviate that step for future proposed classes. Id. at **2-3.

The first step in determining which law to apply is to see if there is a conflict between the forum state's law and the law of another state that might apply. Here, because it was a proposed nationwide class, this step involved taking a survey of the various approaches around the country to medical monitoring for uninjured people. Relatively few states have accepted it, more have rejected it, and others have allowed it only with proof of "subcellular changes that substantially increased the risk of serious, disease, illness, or injury" or as a remedy for a separate cause of action. Id. at *4 (citations omitted). Moreover, the expressed policy reasons for adopting or not adopting medical monitoring as a claim or type of relief run contrary to each other.

Id. at *5. Thus, there is "a true conflict of law" that requires the court to decide the applicable law.

Pennsylvania's choice of law rules focus on "which state has the greater interest in applying its law," so the home state for each putative class member should apply. Id. at **5-6 (citation omitted). As should be familiar from choice of law in cases alleging injuries from prescription medical products, the relationship between the defendant manufacturers and class members is in the state where each one was "prescribed and ingested Elmiron—not Pennsylvania," where defendants are based. Id. at *6. Accordingly, "the class members' home states have a stronger interest than Pennsylvania in applying its law to the class members' claims." Id. With each state applying its own law, which may or may not accept medical monitoring claims, the proposed class could not satisfy several of the requirements of Rule 23. Boiled down, a class is inappropriate when dramatically different law would apply to different class members. Id. at **7-8. Thus, the nationwide class portion of the amended complaint was stricken. We will keep an eye peeled to see what happens to the rest of this nutty case.

Originally Published by Reed Smith, November 2020

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