In a nuanced and intelligently written opinion that gives new
life to key defense arguments opposing class treatment of medical
monitoring claims, a federal judge in West Virginia has rejected
certification of a class of persons allegedly exposed to
perfluorooctanoic acid (PFOA) in their drinking water, Rhodes
v. E. I. du Pont De Nemours and Co., 2008 WL 4414720
(S.D.W.Va., 09/30/08).
Too often, courts pay mere lip service to the requirement that
plaintiffs establish the propriety of class treatment for each of
their causes of action. Refreshingly, the judge in Rhodes
observed that of plaintiffs' six causes of action (including
trespass and negligence), only one had been
significantly addressed in the class certification briefing:
medical monitoring. Consequently, the court found that the
plaintiffs had not met their burden as to the five other causes of
action.
The court then focused on the commonality requirement of Rule 23
and its updated and more stringent requirement, cohesiveness,
"The plaintiff must offer evidence that commonly proves the
elements of a medical monitoring claim for each proposed class
member."
This requirement, applied to plaintiffs' key expert proofs
– risk assessment and general epidemiology –
resulted in the failure of the plaintiffs' case.
The court found that classwide exposure risk assessment has two
serious flaws. First, it "does not demonstrate that any extra
level above the 'safe' level are significantly
harmful." Second, it does not demonstrate that each class
member has a significantly increased risk. Indeed, "risk
assessment is of limited utility in a toxic tort case" because
it does not provide information about actual risk or causation.
However interesting and important risk assessments may be from a
precautionary, public health perspective, they do not provide the
certainty required by tort law.
The epidemiology evidence offered by the plaintiffs suffered from
similar inadequacies. Although that evidence may show that PFOA
"generally causes some diseases," it does not show that
class members' exposures caused a significantly increased risk
of disease for each member of the class.
It is the general theme of the court's opinion that is most
instructive and important to practitioners: There is a world of
difference between what may be wise to do from a public health
perspective and what is required for class certification. Indeed,
the court stated that plaintiffs had presented "compelling
evidence" that exposure to PFOA may be harmful to human
health. That is not proof, however, of specific causation or the
common injury required for class cohesiveness and class
certification.
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