United States: Medical Monitoring Class Certification Fails

Last Updated: September 19 2017
Article by Eric Alexander

Normally, when we think of decisions relating to medical monitoring, the issue is whether a state will recognize medical monitoring for uninjured people as a separate claim or relief that can be sought under an existing theory of recovery. Just last month, we noted that it looked like the issue had been largely resolved against allowing such claims or relief. Sometimes, the issue is whether the plaintiff sufficiently pleads the elements of a medical monitoring claim in a jurisdiction that recognizes it. Today's case involves a different consideration of medical monitoring, looking at whether the requirements of Fed. R. Civ. 23 are met and a medical monitoring class can be certified. There is quite a bit to Barraza v. C.R. Bard Inc., No. CV16-01374-PHX-DGC, 2017 WL 3976720 (D. Ariz. Sept. 11, 2017), and we are only going to focus we find most interesting.

Barraza comes from an IVC Filter MDL, which has been the source of some other decisions that drew our interest, and ultimately focused on the question of whether class certification was appropriate for eleven separate classes, each for the residents of a state that has recognized medical monitoring and had a resident proposed class representative. Each class sought medical monitoring for people with one of seven of the defendant's IVC filter devices in-place (after being implanted at any time) who had not brought a case alleging personal injury. In other words, these were to be classes of uninjured plaintiffs with on-going use of the allegedly defective devices. (Note that the proposed class definition does not expressly exclude all patients claiming current complications, but the court addresses the case as though it presents a "no injury" class, so we will too.) Keep in mind that a common reason for rejecting medical monitoring has been that the tort system is predicating on an actual injury, giving rise to accrual of claims, damages that can be determined by somewhat predictable rules, a duty to mitigate, etc., and people who have not have an actual injury do not fit well within the existing tort system. Someone with an actual injury, however, may be entitled to compensation for on-going medical care to minimize the progression or sequelae of the injury. With that in mind, we turn to the evaluation of whether individual considerations or common issues predominate in trying to decide the elements of medical monitoring—as identified by the plaintiffs based on an amalgam of the law of the eleven states.

We will focus on the elements that mattered to the outcome. While plaintiffs argued that negligent design and failure to warn could be decided on common evidence, the court disagreed. The seven devices were designed and launched over a more than ten year period and exhibited different design features, manufacturing specifications, and testing. Similarly, the labeling for the devices differed depending on the date and product, but seemed to address the risks that plaintiffs claim required monitoring. "Trial of a single class representative's claim would not suffice because the representative would have received a different filter with different warnings than many members of the class." Similarly, the application of affirmative defenses like assumption of the risk and contributory negligence would also turn on individual evidence about what the plaintiff and her doctor knew and did. The court noted how some of the named plaintiffs—putative class representatives—had ignored recommendations for medical follow up and removal of the device they claim subjects them to an increased risk of harm requiring monitoring. Thus, individual considerations in evaluating liability predominated and "the classes cannot be certified simply because Plaintiffs allegedly face a common risk and need medical monitoring."

The related issues of whether the proposed monitoring was necessary and different from the treatment the plaintiffs would otherwise receive also turned on individual considerations.

Here, the amount of monitoring a class member would require in a normal course of her treatment and illness, without the monitoring sought in this case, is an individualized inquiry into the medical needs and ongoing course of treatment for each class member.

For instance, some named plaintiffs were already undergoing monitoring of their own doctor's devising with different levels of compliance.

Even what law would apply to classes defined by the state of residency involved individual considerations as the state where each plaintiff's implant surgery occurred, the state where the injury occurred, and the state where the defendant designed the products and drafted labeling could affect the law that would apply.

Put it all together and plaintiff did not come particularly close to satisfying the predominance requirement and class certification under Fed. R. Civ. P. 23(a). (The plaintiffs also tried for certification of a 23(b)(2) class, but that was pretty much a non-starter as the relief sought—paying for monitoring—is not injunctive.) Some of the result here is likely due to the plaintiffs' insistence on broad classes and the selection of putative class representatives with warts, but Barraza also illustrates how class treatment of medical monitoring claims should be a long shot even when state law allows monitoring for uninjured people.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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