New York High Court Rejects Medical Monitoring

Just the facts on this one, as my firm is involved for defendants in such actions, but word comes that New York's highest court has joined the trend of state courts rejecting medical monitoring. See Caronia v. Philip Morris USA, Inc.,  No. 227 (N.Y., 12/17/13).

Plaintiffs, healthy smokers, sought medical monitoring in the form of low dose CT scans allegedly necessitated by their increased risk of future disease.  The federal court certified the issue of medical monitoring to the state court, specifically, (1) under New York Law, may a current or former longtime heavy smoker who has not been diagnosed with a smoking-related disease, and
who is not under investigation by a physician for such a suspected disease, pursue an  independent equitable cause of action for medical monitoring for such a disease?
(2) If New York recognizes such an independent cause of action for medical monitoring, what are the elements of that cause of action? What is the applicable statute of limitations, and when does that cause of action accrue?

The state court observed that while there is certainly an important health interest in fostering access to medical testing for those whose exposure has resulted in an increased risk of disease, and such testing could possibly lead to early detection and treatment, not only mitigating future illness but also reducing the cost to the tortfeasor.  However, the potential systemic effects of
creating a new, full-blown tort law cause of action cannot be ignored. For instance, dispensing with the physical injury requirement could permit tens of millions of potential plaintiffs to recover monitoring costs, effectively flooding the courts while concomitantly depleting the purported tortfeasor's resources for those who have actually sustained damage.  From a practical standpoint, it cannot be overlooked that there is no framework concerning how such a medical monitoring program would be implemented and administered. Courts generally lack the technical expertise necessary to effectively administer a program heavily dependent on scientific disciplines
such as medicine, chemistry, and environmental science.  The Legislature is plainly in the better position to study the impact and consequences of creating such a cause of action, including the
costs of implementation and the burden on the courts in adjudicating such claims.

The court concluded that these policy reasons militated against a judicially created independent cause of action for medical monitoring. Allowance of such a claim, absent any  evidence of present physical injury or damage to property, would constitute a significant deviation from the state's tort jurisprudence. 

State Appeals Court Rejects Expert Testimony In Toxic Tort Case

The Superior Court of Pennsylvania recently rejected the plaintiff's expert's opinion on causation, in an interesting Frye decision.  See Snizavich v. Rohm and Haas Co., No. 1383 EDA 2012, (Pa. Super. Ct. Dec. 6, 2013).

Plaintiff's decedent filed suit against Rohm and Haas in April 2009, asserting causes of action under the Wrongful Death and Survival Acts, in which she alleged that decedent’s brain cancer was caused by exposure to chemicals while working at Spring House, and that Rohm and Haas was allegedly liable.  Plaintiffs submitted an expert report, which defendant challenged in a Frye motion and then hearing.  The trial court rejected the expert opinion and then granted defendant summary judgment. Plaintiff appealed.

The trial court was especially troubled by the plaintiff's expert, Dr. Milby’s, reliance on a report from the University of Minnesota (“Minnesota Report”), finding an association between brain cancer and working at the Spring House, PA facility where thousands of chemicals had been used. The Minnesota Report was inconclusive as to both the cause of the brain cancer found in the Spring
House workers and the relationship between the chemicals and increased incidence of brain cancer. Nevertheless, as the court stated, Dr. “Milby somehow comes to the exact opposite conclusion . . . Milby, however, does not state any scientific methodology that he used nor does he call into question the [study’s] methodology that might make its findings incorrect, rather he simply stated his own opposite conclusions without any further support.”  Ultimately, the Milby expert report seemed to be little more than an unscientific lay opinion given by someone who happened to be a medical doctor. As such, Dr. Milby’s testimony would not assist the trier of fact, because it contained no evidence, causal or otherwise, linking the decedent’s brain cancer to the Spring House facility.

Under Pennsylvania law, admissible expert testimony that reflects the application of expertise requires more than simply having an expert offer a lay opinion.  Testimony does not become scientific knowledge merely because it was proffered by a scientist.  Wack v. Farmland Industries, Inc., 744 A.2d 265, 271 (Pa. Super. 1999) abrogated on other grounds by Trach v. Fellin, 817 A.2d
1102 (Pa. Super. 2003). Likewise, expert testimony must be based on more than mere personal belief, Commonwealth v. Stringer, 678 A.2d 1200, 1202 (Pa. Super. 1999), and must be supported by reference to facts, testimony or empirical data.  Downey v. Crozer-Chester Medical Center, 817 A.2d 517, 528 (Pa. Super. 2003) (en banc).

The exercise of scientific expertise requires inclusion of scientific authority and application of the authority to the specific facts at hand. Thus, the minimal threshold that expert testimony must meet to qualify as an expert opinion rather than merely an opinion expressed by an expert, is this, observed the court: the proffered expert testimony must point to, rely on or cite some scientific authority – whether facts, empirical studies, or the expert’s own research – that the expert has applied to the facts at hand and which supports the expert’s ultimate conclusion. When an expert opinion fails to include such authority, the trial court has no choice but to conclude that the expert
opinion reflects nothing more than mere personal belief.

Here, the appellate court agreed that Dr. Milby failed to demonstrate any scientific basis, other than his own subjective beliefs, that the chemicals used at Spring House caused brain cancer. He basically reviewed plaintiff's medical records, work history, and work conditions, and then relied on the Minnesota Report.  However, the Minnesota Report was inconclusive as to the cause of the brain cancer found in the Spring House workers and the relationship between the chemicals used at Spring House and brain cancer. Although Dr. Milby references and seems to rely on the Minnesota Report, he ignored the fact that it specifically and intentionally disclaims that exact conclusion that he himself reaches.  Dr. Milby did not offer any other scientific authority that even suggested a causal relationship between possible exposure to chemicals at Spring House and brain cancer, or any reason to doubt the scientific veracity of the Minnesota Report. The Milby expert opinion was, therefore, more aptly described as scrupulously avoiding the medical literature, and based entirely on subjective assessments of both cause and effect.

Thus, the Superior Court concluded that Dr. Milby’s opinion was nothing more than lay opinion offered by an expert and therefore was inadmissible. The decision reinforces the burden facing plaintiffs in toxic tort cases to proffer expert testimony with a sufficient scientific basis, especially where there are numerous idiopathic cases, where the scientific and medical literature has not found a conclusive causal link between a given product and the alleged injury.

 

Federal Court Rejects Consumer Class Action

 A California court recently rejected the class certification motion by a Chipotle Mexican Grill Inc. customer alleging the chain falsely advertised its meat as humanely raised and free of antibiotics and hormones. See Alan Hernandez v. Chipotle Mexican Grill Inc. et al., No. 2:12-cv-05543 (C.D. Cal. 2013). While the case was initially broader, plaintiff’s allegations came to center on the
representations allegedly made in Chipotle’s in-store menu signboards and Chipotle’s paper menus.

The court concluded that the proposed class action failed to satisfy the requirements of Rule 23(b)(3). Class certification under Rule 23(b)(3) is proper, inter alia, only when common questions present a significant portion of the case and can be resolved for all members of the class in a single adjudication. The predominance inquiry under Rule 23(b) tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997).  Rule 23(b)(3) also requires the court to find that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.

Here, the court found that common questions did not predominate over individual issues, and the class action device was not a fair and efficient way to provide a fair opportunity for class members to obtain relief, or for Chipotle to defend itself against claims. Many key issues could only be handled individually. Most fundamentally, the questions of when a class member ate at Chipotle,
the exact location where he or she ate, and which meat (if any) he or she ate are all not subject to class treatment.  Here, the dispute concerned a very low price transaction that neither the class members nor Chipotle maintained any specific record of, or could be expected to recall. 

More importantly, the alleged misconduct took place only with regard to certain products at varying locations within limited time frames. That was critical, because certain stores were allegedly serving certain conventional meats only at certain times because of shortages. Therefore, a class member would need to know with some certainty – and Chipotle should be allowed some mechanism for confirming or contesting that certainty – the date, location, and particular meat purchased. That kind of certainty in a class action that  encompasses purchases more than five years ago and, said the court, was not practical. Credit card records could provide some evidence of class members’ purchases, but credit card records would not provide the critical detail of which meat was purchased in any given transaction. 

Further, the important question of whether a class member saw a point-of-purchase sign when a particular purchase was made cannot be handled on a class-wide basis. For each purchase when naturally raised meat was allegedly not being served, the court observed there were at least four possibilities: (1) the sign was there and the class member saw it, (2) the sign was there and the class member did not see it due to Chipotle’s conduct, (3) the sign was there and the class member did not see it due to the class member’s negligence, and (4) the sign was not there. Many of the individual issues regarding liability were also reasons why the class action mechanism was not fair and efficient in this case.

In a burst of realism, the court was "confident" that very few people in a class would be able to provide the necessary information. People will either (1) lie, (2) attempt to present the facts but be unable to do so accurately, or, most likely, (3) not know.  This would even impact a theoretical future settlement.  Money would be given out basically at random to people who may or may not actually be entitled to restitution. This is unfair both to legitimate class members and to Chipotle.

The decision is the latest instance of an emerging trend in consumer class action cases: a recognition of the often insurmountable task of reliably identifying disparate members of a proposed class where few, if any members, have documentary proof of their purchases.  Here, it is treated as part of the predominance inquiry, and in other cases as part of ascertainability.