The uncertainty about the rules governing certification of medical monitoring classes is particularly acute in the U.S. Court of Appeals for the Third Circuit, which has twice taken the unusual step of granting Rule 23(f) petitions to consider the issue, only to leave it unresolved.
With mass tort cases on the rise, one increasingly common form of relief plaintiffs seek is “medical monitoring,” where the defendants pay for plaintiffs’ consultations with doctors to detect potentially latent conditions or diseases, as in M.P. v. Allergan, No. 2:19-cv-22126 (D.N.J.) (Dec. 30, 2019); Doe v. Allergan, No. 2:19-cv-05138 (E.D. Pa.) (Nov. 1, 2019) and Banks v. E.I. du Pont de Nemours & Co., No. 1:19-cv-01672 (D. Del.) (May 17, 2019; removed Sept. 06, 2019). When plaintiffs seek certification of these so-called medical-monitoring classes, the courts face a threshold question: are medical-monitoring claims predominantly claims for injunctive relief, subject to the requirements of Rule 23(b)(2), or are they claims for monetary relief, subject to the requirements of Rule 23(b)(3)? Across the country, courts have long been “divided over whether Rule 23(b)(2) or Rule 23(b)(3) is the appropriate vehicle for certifying a mass tort class for medical monitoring,” see “Manual for Complex Litigation” (Fourth) Section 22.74 (2004).
The uncertainty about the rules governing certification of medical-monitoring classes is particularly acute in the U.S. Court of Appeals for the Third Circuit, which has twice taken the unusual step of granting Rule 23(f) petitions to consider the issue, only to leave it unresolved. See Gates v. Rohm & Haas, 655 F.3d 255, 263 (3d Cir. 2011) (“questioning” whether medical-monitoring claims could be certified under Rule 23(b)(2), but denying class certification for different reasons); Baker v. LivaNova, No. 17-8059 (3rd Cir. Dec. 13, 2018) (granting Rule 23(f) petition on this issue; case settled prior to briefing and argument).
Other Third Circuit cases create a similar tension. On one hand, the court has held that a request for future medical examinations “in fact, was a claim for money damages,” and that a plaintiff could not “transform a claim for damages into an equitable action by asking for an injunction that orders the payment of money,” see Jaffee v. United States, 592 F.2d 712, 715 (3d Cir. 1979). On the other, the court has held more recently that requests for medical monitoring were “best understood as requests for injunctive relief.” See Giovanni v. U.S. Department of Navy, 906 F.3d 94, 121 (3rd Cir. 2018). But that case addressed sovereign immunity, not class certification, and the court offered no broad holdings, instead favoring a “case-specific analysis.”
The court should resolve the issue once and for all. As explained further below, the better view is that certification of medical-monitoring classes should be required to satisfy the conditions in Rule 23(b)(3), rather than Rule 23(b)(2).
Under Rule 23, plaintiffs seeking class certification must satisfy all of the requirements of subpart (a) and at least one of the requirements of subpart (b). As relevant here, Rule 23(b)(2) allows a class to be certified if “final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Rule 23(b)(3), by contrast, is the appropriate vehicle for proposed classes that seek monetary damages or other forms of noninjunctive relief. Courts have long grappled with whether a putative class seeking medical monitoring is seeking injunctive relief, such that class certification would be governed by Rule 23(b)(2), or is instead seeking a form of money damages, such that Rule 23(b)(3) would apply.
The Third Circuit first discussed rules for certification of medical-monitoring classes in Jaffee v. United States, 592 F.2d 712 (3d Cir. 1979). Jaffee concerned a former soldier’s claim that he and other soldiers were ordered to stand in an open field near the site of a nuclear bomb explosion without proper protection. Among other claims, Jaffee sought to represent a class seeking to force the government to “provide or subsidize medical care for the members of the class.” The district court dismissed the claim, and on appeal the Third Circuit held that even though it purported to be a claim for injunctive relief, it really was a “disguised claim for damages.” The court explained that Stanley Jaffee’s request for future “medical examinations and all medical care and necessary treatment, in fact, was a claim for money damages,” so he could not “transform a claim for damages into an equitable action by asking for an injunction that orders the payment of money.”
The Third Circuit next addressed certification of medical-monitoring classes in Barnes v. American Tobacco, 161 F.3d 127, 138-50 (3d Cir. 1998). Barnes concerned a putative class of cigarette smokers who sued tobacco companies and sought to impose a “court-supervised or court-approved program providing medical monitoring to class members” that would “pay for medical examinations designed to detect latent diseases caused by smoking.” The district court declined to certify a class because the relief plaintiffs sought was “monetary in nature.” The plaintiffs amended their complaint, but the courts never addressed whether the amended claim was to be governed by Rule 23(b)(2) or (b)(3), because either way, the case presented “too many individual issues to permit certification.”
More recently, in Gates v. Rohm & Haas, 655 F.3d 255, 263 (3d Cir. 2011), the Third Circuit granted a Rule 23(f) petition to consider whether medical monitoring “can be certified under Rule 23(b)(2).” Gates was brought by plaintiffs who alleged that a chemical company allowed a carcinogen to leech from wastewater into an aquifer, later evaporating over their village and exposing them to harmful chemicals. The plaintiffs sought certification of a “class seeking medical monitoring for village residents exposed to the chemical.” The district court denied class certification, but the Third Circuit took the unusual step of granting a Rule 23(f) petition. Acknowledging that “the remedy of medical monitoring has divided courts on whether plaintiffs should proceed under Rule 23(b)(2) or Rule 23(b)(3),” the court “questioned” whether medical-monitoring claims could be certified under Rule 23(b)(2) but “did not reach the issue” because it denied class certification for other reasons.
Most recently, the Third Circuit addressed medical monitoring in a slightly different context. In Giovanni v. U.S. Department of the Navy, 906 F.3d 94 (3rd Cir. 2018), the court considered whether two families could sue the federal government under the Pennsylvania Hazardous Sites Cleanup Act (HSCA). The two families alleged that they lived near sites that the Navy had operated and which were contaminated with hazardous substances; and they sought an order requiring the Navy to “pay for medical monitoring and to conduct a health assessment or health effects study that would include blood testing for themselves or others exposed to the hazardous substances.” For their suit to proceed, they needed to prove that the government had waived sovereign immunity, which depended, in turn, on whether they sought injunctive relief under state law. In holding that the families’ suit could proceed, the Third Circuit explained that the medical-monitoring question “requires a case-specific analysis.” In the context of a plaintiff’s claim under the HSCA, it held that medical monitoring was “primarily equitable in nature,” such that the plaintiffs’ claims could proceed.
Giovanni might seem to provide some guidance, but just two months after it came out, the Third Circuit granted another Rule 23(f) petition to consider whether medical-monitoring claims were appropriately certified for class treatment under Rule 23(b)(2). See Baker v. LivaNova, No. 17-8059 (3rd Cir. Dec. 13, 2018). Before the issue could be briefed or argued, however, the case settled, leaving Third Circuit law on the issue in a state of uncertainty.
Court Should Resolve the Uncertainty
The time has come to resolve the uncertainty exhibited by the decisions in Jaffee, Barnes, Gates, and Giovanni. At the next opportunity, the court should accept a Rule 23(f) petition and hold that medical-monitoring claims are governed by Rule 23(b)(3). It should do so for three reasons.
First, and most fundamentally, a medical-monitoring class that seeks payment for various medical procedures is really just seeking money damages. As an Arizona court recently explained, medical monitoring is a remedy that really asks defendants to “do nothing more than pay money.” See Barraza v. C.R. Bard, 322 F.R.D. 369, 386 (D. Ariz. 2017). The only differences are that the money comes with a specific designated purpose—to pay for class members to see their own physicians or undergo other medical procedures—and that the obligation is to pay an unknown (and, indeed, unknowable) amount. But by definition, an injunction should be more than merely ordering a defendant to pay money, regardless of the specificity of purpose or un-specificity of amount. As the Arizona court explained, “Plaintiffs cannot transform a claim for damages into injunctive relief simply by asking for an injunction that orders the payment of money.” See also Thomas v. FAG Bearings, 846 F. Supp. 1400, 1404 (W.D. Mo. 1994) (“Absent anything more than an exchange of money, as requested by the plaintiffs, these medical-monitoring damages cannot be injunctive in nature.”); Werlein v. United States, 746 F. Supp. 887, 895 (D. Minn. 1990), vacated in part on other grounds, 793 F. Supp. 898 (D. Minn. 1992) (“Payment of cash by one party to reimburse other parties for costs incurred for medical monitoring is not injunctive relief.”).
Second, the history and purpose of Rule 23(b)’s various subsections support a holding that medical-monitoring classes be processed—if at all—under Rule 23(b)(3). As the U.S. Supreme Court has noted, “‘civil rights cases against parties charged with unlawful, class-based discrimination are prime examples’ of what (b)(2) is meant to capture.” See Wal-Mart Stores. v. Dukes, 564 U.S. 338, 361 (2011) (quoting Amchem Products v. Windsor, 521 U.S. 591, 614 (1997)). Rule 23(b)(2) certification was appropriate in those cases because they targeted “conduct that was remedied by a single classwide order;” there was nothing even remotely individualized about the relief provided. Medical-monitoring cases, by contrast, require a much deeper dive into the weeds of each potential class member’s medical history, personal circumstances and future prognosis—all of which defy the stroke-of-a-pen model that has historically typified (b)(2) relief. Similarly suggestive of the propriety of (b)(3) certification is the fact that certification under Rule 23(b)(2) does not even require notification to the class. A certifying court could order such notice as part of the certification process (or as part of a settlement), but the fact that it is not provided by default is yet further indication that Rule 23(b)(2) is not intended for relief (like medical monitoring) where any measure of individual tailoring would be required.
Finally, requiring medical-monitoring plaintiffs to seek certification under Rule 23(b)(3) would promote predictability. Though courts have struggled with the issue over the years, the more recent, better reasoned, and majority view is to hold that medical-monitoring claims are subject to Rule 23(b)(3). See, e.g., Zinser v. Accufix Research Institute, 253 F.3d 1180, 1195-96 (9th Cir. 2001) (plaintiffs who sought “full and proper research into alternative methodologies for remedying the condition of each patient/class member” was still subject to Rule 23(b)(3) because that injunctive relief was “merely incidental to the primary claim for money damages”); Boughton v. Cotter, 65 F.3d 823, 827 (10th Cir. 1995) (affirming rejection of medical-monitoring class under Rule 23(b)(2) because “the relief sought was primarily money damages”); Duncan v. Northwest Airlines, 203 F.R.D. 601, 611 (W.D. Wash. 2001) (“Although the plaintiff now characterizes the relief as a program rather than a fund, the bottom line is money.”). The Third Circuit avoids decisions that would create a circuit split unless there is a “compelling basis,” Parker v. Montgomery County Correctional Facility, 870 F.3d 144, 151-52 (3d Cir. 2017), and in light of the great weight of authority requiring analysis under Rule 23(b)(3), there is hardly a compelling basis to conclude otherwise. See also Yamada v. Nobel Biocare Holding AG, 275 F.R.D. 573, 580 (C.D. Cal. 2011); Cole v. ASARCO, 256 F.R.D. 690, 696 (N.D. Okla. 2009); Mehl v. Canadian Pacific Railway, 227 F.R.D. 505, 520 (D.N.D. 2005); Dhamer v. Bristol-Myers Squibb Co., 183 F.R.D. 520, 529 (N.D. Ill. 1998); Smith v. Brown & Williamson Tobacco, 174 F.R.D. 90, 100 (W.D. Mo. 1997) (all holding that Rule 23(b)(3) was the appropriate vehicle under which to analyze class certification of medical-monitoring claims).
There is a strong case to be made that certification of medical-monitoring classes should be assessed under Rule 23(b)(3) rather than Rule 23(b)(2). But regardless of the ultimate outcome, the judicial system’s interest in the prompt, efficient and just resolution of such cases counsels strongly in favor of providing a clear and definitive answer to that question in the Third Circuit—either in a post-judgment appeal or (more likely) in a Rule 23(f) petition—at the earliest opportunity.
Reprinted with permission from the March 6, 2020 edition of the Legal Intelligencer© 2020 ALM Media Properties, LLC. All rights reserved.