Medical Monitoring Webinar Next Week

I wanted to remind readers know that I will be speaking in an upcoming Strafford live phone/web seminar entitled "Medical Monitoring in Products Liability Claims: Challenges for Plaintiffs and Defendants" scheduled for Tuesday, March 20, 1:00pm-2:30pm EDT.

We have posted on a number of medical monitoring issues before, and some observers think that the number of medical monitoring claims for future testing to provide for early detection of diseases based on alleged exposure to toxic substances is on the rise.

Courts in various jurisdictions hold different views on the recognition of medical monitoring claims, whether these claims are a cause of action or an issue of damages, and the elements of the theory.

My fellow panelists and I will provide practitioners with a review of defense and plaintiff counsels' perspectives regarding medical monitoring. My focus will be on medical monitoring class actions.

After our presentations, we will engage in a live question and answer session with participants — so we can answer your questions about these important issues directly. I hope you'll join us.
 

You can register here.

 

Federal Court Denies Certification of MP3 Class Action - Again

A New Jersey federal court last week declined to certify a proposed class in a suit over alleged defects in the Zune MP3 player's display screen. See Maloney, et al. v. Microsoft Corp., No. 3:09-cv-02047 (D.N.J. 2012).

Readers may recall we blogged about this case when the court denied certification of a nationwide class, in part because of choice of law issues. The court at that point reserved decision as to whether or not a New Jersey-wide class might be certified, subject to further briefing by the parties.  We said at that time: "clearly additional individual issues will predominate in that context as well."  Hope our college Madness pool predictions will be as accurate.

The new proposed class was NJ residents who purchased or owned a Microsoft Zune 30gb model and whose Zune liquid crystal display screen cracked without cracking or chipping of the outer screen that covers the LCD screen within their applicable warranty period (one-year, unless under an extended warranty) and who notified Microsoft orally or in writing about the cracked LCD but did not receive repair or replacement of their Zune from Microsoft.  That's a mouthful.

Defendant argued that plaintiffs had no unifying theory of causation capable of class-wide proof and that individual questions of fact would therefore predominate at trial.  Plaintiff, on the other hand, argued that causation could be established on a class-wide basis because class members‘ LCD screens fractured without external damage to the outer lens;  fractured in locations that were disproportionately clustered around four identified alleged internal design defects; and were 20 times more likely to crack without external damage than were LCD screens on the later-model Zune.

Our readers know that the burden is on the plaintiff to prove that the requirements of Rule 23 have been satisfied. Class certification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites‘ of Rule 23 are met. Predominance was the key element here, as issues common to the class must predominate over individual issues. If any key elements of a claim can be proven only by resort to individual treatment, class certification is inappropriate. Plaintiffs seeking class certification must demonstrate that each element of [the cause of action is capable of proof at trial through evidence that is common to the class rather than individual to its members.

Here, the court determined that plaintiffs' purported proofs failed to establish that any of the alleged design defects commonly caused class members‘ injuries because this evidence suffered from what the United States Supreme Court has termed a failure of inference. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2555 (2011).  Procedurally, any factual dispute concerning whether causation is capable of proof at trial through common evidence must be determined by the court. This often requires the weighing of conflicting expert testimony, and the court must then resolve expert disputes in order to determine whether the predominance requirement has been met. A court must engage in this analysis even if it overlaps with the merits.

The practical considerations underlying the presentation of a case at trial should be considered by the court in determining whether individual questions of fact would predominate.  In the context of proving the element of causation, numerous courts have held that individualized questions of fact prevent class certification where resort to case-by-case testimony would be necessary. In the context of consumer fraud, for example, class certification is inappropriate where oral representations are made to each class member and where plaintiffs must rely on this evidence to prove causation.

Here, the court noted that a jury must be able to independently weigh whether each alleged design defect actually existed and whether that specific defect was the cause of each class member‘s injury.  Plaintiff‘s proffered evidence was largely the plaintiff‘s lawyers‘ comparison effort.  Plaintiff‘s expert conducted no statistical analysis. It was thus impossible to tell from plaintiff‘s proffered evidence whether any of the numbers put forward were statistically significant.  Also, plaintiff had not put forth any evidence that a jury could rely upon in determining which alleged design defect led to which Zune failure or which grouping of Zune failures. As framed by the plaintiffs, the alleged LCD cracks resulted from a muddled mix of causes and effects. There was no indication that each purported cause led to a uniform result (e.g., an origination point in the same location), which would permit the jury to draw an inference of a specific design defect. Thus, there was no way to determine which of the purported causes or which grouping of these causes led to which individual LCD crack or group of LCD cracks.

Indeed, according to plaintiff‘s own expert, one of the most basic concepts of failure analysis is that the origin (position) of failure can be determined from the failure pattern on the fracture surface of an object. Plaintiffs also admitted that a number of the 30gb Zunes sampled by their expert fell outside the high-frequency areas identified in the expert report.  Just as statistical evidence of gender disparity at the regional or national level in Dukes could not establish gender disparity at the local level, plaintiffs' proof could not establish the design defects on a common basis.

Moreover, and this is an important point that some courts ignore, even if prima facie evidence of causation could be established on the basis of statistically significant recurrence of crack-origination points—something the plaintiffs had not established — the defendant must be given the opportunity to rebut such an inference; to defend against each of these alleged defects; to respond to that proof.  The only way in which the defendant could rebut plaintiff‘s proposed class-wide evidence would be through the presentation of individual evidence regarding the circumstances surrounding each cracked LCD screen. A lack of damage to the outer lens did not necessarily preclude evidence that other portions of the outer shell of the 30gb Zune were damaged by misuse.  Defendant would have to be given the opportunity to cross-examine each Zune owner to assure that there was no damage to the outer casing (as opposed to the outer lens covering the LCD screen) that resulted from misuse or abuse. This would result in hundreds of mini-trials.

Lastly, internal defendant communications did not establish causation as to each individual class member‘s injury. Generalized statements about an alleged design defect are merely that—general statements; they fail to show that all LCD cracks must have been the result of this alleged defect. Just as in Dukes, anecdotal evidence generally cannot serve as a basis for class certification.

State Supreme Court Rejects Tolling Based on Prior Class Action

A state's supreme court ruled earlier this month that the filing of a putative class action in another state does not stop the clock on the running of the Virginia statute of limitations for absent class members.  See Casey v. Merck & Co.,  No. 111438 (Va., 3/2/12).

The issue arose in the context of the Fosamax litigation and the somewhat unique civil procedure of Virginia.  On September 15, 2005, a putative class action, Wolfe v. Merck & Co., was filed in the United States District Court for the Middle District of Tennessee. The putative class included "[a]ll persons who consume or have consumed FOSAMAX, whether intravenously or by mouth." The representative plaintiffs in the class action asserted claims of strict liability, negligence, and medical monitoring against Merck.  The case became part of the MDL for this product, and the MDL court denied class certification in 2008.  But prior to the dismissal of the Wolfe putative class action, four plaintiffs, all residents of Virginia, filed individual state law based actions against Merck in the Southern District of New York, asserting federal diversity jurisdiction. It was undisputed that all four plaintiffs filed suit more than two years after the latest possible date that they sustained their respective alleged injuries, and that Virginia law applied to their claims.

Defendant naturally moved for summary judgment, alleging that the four plaintiffs’ actions were untimely under Virginia's two-year statute of limitations for personal injuries. In response, the plaintiffs claimed that the Wolfe putative class action, which was filed within the two-year limitation period, tolled the running of the Virginia statute of limitations on their individual actions because they would have been members of the proposed class had certification been granted.

The district court agreed with defendant, but on appeal the Second Circuit certified, asking the Virginia Supreme Court to determine whether Virginia law permits equitable or statutory tolling of a Virginia statute of limitations due to the pendency of a putative class action in another jurisdiction.

The court began from the proposition that limitations periods are a creature of statute, and a statute of limitations may not be tolled, or an exception applied, in the absence of a clear statutory enactment to such effect. Any doubt must be resolved in favor of the enforcement of the statute. Given these principles, there was no authority in Virginia jurisprudence for the equitable tolling of a statute of limitations based upon the pendency of a putative class action in another jurisdiction.

As for statutory tolling, Virginia Code § 8.01-229(E)(1) provided that, “If any action is commenced within the prescribed limitations period and for any cause abates or is dismissed without determining the merits, the time such action is pending shall not be computed as part of the period within which such action may be brought, and another action may be brought within the remaining period.”  The plaintiffs contended that Code § 8.01-229(E)(1) statutorily tolled the statute of limitations for plaintiffs’ claims during the pendency of the putative class action, and that the court's decision in Welding, Inc. v. Bland Cnty. Serv. Auth., 261 Va. 218, 541 S.E.2d 909 (2001), indicated that Virginia had recognized cross-jurisdictional putative class action tolling.

In Welding, the court had stated that, under Virginia law, an action filed in a foreign jurisdiction may indeed trigger tolling under the Code section. Although there is no particular type of action that must be filed and no particular jurisdiction in which that action must be brought for the commencement of an action to trigger tolling under Code § 8.01-229(E)(1), for tolling to be permitted, the subsequently filed action must be filed by the same party in interest on the same cause of action in the same right.  Welding differed from the instant case because it concerned a situation where the same plaintiff initially sued in federal court on the same cause of action he subsequently pursued in state court. The plaintiff in both actions was clearly the same. In the instant matter, said the court, it is undisputed that the four plaintiffs were not named plaintiffs in the putative class action that they claim triggered the tolling. They were merely absent members of a putative class that included everyone in the country who had taken this drug.

For the filing of an action to toll the statute of limitations from running on a subsequently filed action, there must be a true identity of the parties in the two lawsuits. In other words, for the statute of limitations to be tolled for a subsequent action, the party who brought the original action must be the same as the plaintiff in the subsequent action or a recognized representative of that plaintiff asserting the same cause and right of action. A putative class action is a representative action in which a representative plaintiff attempts to represent the interests of not only named plaintiffs, but also those of unnamed class members. But Virginia jurisprudence does not recognize class actions. Under Virginia law, a class representative who files a putative class action is not recognized as having standing to sue in a representative capacity on behalf of the unnamed members of the putative class. Thus, under Virginia law, there is no identity of parties between the named plaintiff in a putative class action and the plaintiff in a subsequent action filed by a putative class member individually. Accordingly, a putative class action cannot toll the limitations period for unnamed putative class members under Virginia law.

Certified questions answered in the negative.

  

Upcoming Webinar Worth Checking Out

I wanted to let readers know that I will be speaking in an upcoming Strafford live phone/web seminar entitled "Medical Monitoring in Products Liability Claims: Challenges for Plaintiffs and Defendants" scheduled for Tuesday, March 20, 1:00pm-2:30pm EDT.

We have posted on a number of medical monitoring issues before, and some observers think that the number of medical monitoring claims for future testing to provide for early detection of diseases based on alleged exposure to toxic substances is on the rise.

Courts in various jurisdictions hold different views on the recognition of medical monitoring claims, whether these claims are a cause of action or an issue of damages, and the elements of the theory.

My fellow panelists and I will provide practitioners with a review of defense and plaintiff counsels' perspectives regarding medical monitoring.  My focus will be on medical monitoring class actions.

After our presentations, we will engage in a live question and answer session with participants — so we can answer your questions about these important issues directly.  I hope you'll join us.
 

You can register here