Environmental Law

Class Certification - Medical Monitoring

By Gail Wurtzler

It continues to be difficult to predict the outcome of motions to certify classes in toxic tort cases. In a recent medical monitoring case in West Virginia, Rhodes v. E.I. du Pont de Nemours & Co.,     F.R.D.     , 2008 WL 4414720 (S.D. W. Va. September 30, 2008), the plaintiffs patterned their certification motion on a medical monitoring class settlement involving the same defendant, the same chemical (perfluorooctanoic acid or PFOA or C-8), and similar exposure levels. However, the court refused to certify the class.

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  Denial of class certification was based on the court’s conclusion that the plaintiffs had not shown the class met the criteria for a medical monitoring claim under West Virginia law. In particular, the plaintiffs did not show that the proposed class had been significantly exposed to PFOA, a chemical used to manufacture products including non-stick pans, or that their exposure jeopardized their health. 

            No Significant Exposure. The court was unimpressed that the prior class settlement included people with similar exposures. The concession in the prior case meant nothing. Evidence of recommended precautions by public health agencies was similarly unhelpful because none of the agencies making recommendations had definitively concluded that persons exposed to [PFOA] have a significantly increased risk of disease. Finally, the court rejected the plaintiff expert’s risk assessment, and risk assessments in general, as evidence of causation in toxic tort cases because “risk assessments have largely been developed for regulatory purposes and thus serve a protection function in providing a level below which there is no appreciable risk to the general population. They do not provide information about actual risk or causation.” 2008 WL 4414720 at *12.

            No Health Jeopardy.        Regulatory agency concerns that PFOA may be harmful were not sufficient to show that the plaintiffs’ health was in jeopardy from exposure to PFOA. A public potential public health risk in the abstract was not evidence of the common individual injuries needed for class certification

Full post as published by Environmental Toxic Torts Blog on November 05, 2008 (boomark / email).