This is our second post in three weeks on class actions, owing to the filing of two really interesting class action opinions within a couple of weeks of each other. We posted two weeks ago on the Eleventh Circuit's rejection of a medical monitoring class action—a class action where the plaintiffs and putative class members have not experienced any injury, but still want the defendant to pay for their future medical care.
A recent order from the Eastern District of Pennsylvania rejecting another class action got us to thinking about class actions more generally. We used to see "personal injury" class actions, where the plaintiffs were claiming relief for an entire class of individuals claiming to be harmed by a product. But a class action like that obviously cannot work because of the multiple individualized issues that need to be adjudicated. Cases like Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997), pretty much put an end to them. (You can see this for yourself in our state and federal class action denial cheat sheets, here and here.) Then we saw the aforementioned "medical monitoring" class actions. The plaintiffs' hoped there that their affirmative allegations of no injury would avoid class-defeating individualized issues. But that did not work either because proving an entitlement to "medical monitoring" invokes individualized factors too, such as whether any patient requires future medical care above and beyond what he or she otherwise would have required. The Eighth Circuit's opinion in In re Silzone Heart Valve Products Liability Litigation, 425 F.3d 1116 (8th Cir. 2005), is as good a place as any to start on why medical monitoring claims are not certifiable as class actions.
That leaves class actions like Center City Periodontists v. Dentsply International, Inc., No. 10-774, 2017 WL 3142119 (E.D. Pa. July 24, 2017). You might call cases like this "economic loss" class actions, where a product's user is claiming neither a particular injury nor a right to future benefits, but rather claims that the value of what he or she bought is impaired because of a product defect. "Aha!", say the plaintiffs. We've done away with all those pesky individual issues, and it now boils down only to damages, which we can prove on a classwide basis with our experts.
Alas, it is not so easy. In Center City, the plaintiffs purported to represent a class of dentists and periodontists claiming that the "Cavitron ultrasonic scalers" that they purchased were defective because they were prone to biofilm growth and thus not worth what they paid for them. The next time we go to the dentist, we will look around for a device labeled "scaler." We do not like the sound of it, and it reminds us of the time when we were law students in need of a cleaning, but with little cash to spare. We went to the low-cost student clinic at our university's dental school, which was conveniently located in the building next to the law school. If you take one point away from this post, remember this—do not seek dental care at a student clinic. It was like our own personal retelling of the Marathon Man, starring Dustin Hoffman in his post-The Graduate and pre-Kramer v. Kramer days. (In Marathon Man, Hoffman plays a hapless soul who finds himself being tortured while bound to a stiff-back reclining chair by a . . . . Well, you will have to see the film. As an aside, people often remember Dustin Hoffman in this role, but fewer recall that the torturer was played by none other than Sir Laurence Olivier. For our part, we prefer to remember Olivier as Henry V or as the warm-hearted doctor in A Bridge Too Far, which is a terrific movie but an even better book. But we digress.)
The district court's order denying class certification is interesting for two reasons. First, the court entertained full-blown Daubert challenges to the plaintiffs' experts' opinions. The court excluded the opinions of the plaintiffs' regulatory expert, not because his qualifications or opinions were lacking, but because his opinions did not "fit" the case. In a case claiming economic loss and breach of warranties, the court did not see how opinions on the "regulatory regime" were helpful. Id. at **5-6.
More importantly, the court excluded the opinions of the plaintiffs' accountant, who opined that the class could recover damages based on three remedies—reimbursement, retrofit, and replacement. Id. at *7. The experts' damages opinion was unreliable because he did not take into account the economic value that each class member derived from using his or her Cavitron scaler without incident. The applicable laws (New Jersey and Pennsylvania) allow credits for "the value of the goods accepted." Id. Thus, according to the district court,
Hazel's methodology fails to account for any revenue generated by class member from successfully using their allegedly non-conforming Cavitrons . . . . Failure to do so rendered his model unreliable and ill-fitting under the facts of this case. Because individualized inquiries will be necessary to identify any value obtained by each class member from using the Cavitron as accepted, Hazel's approach is also unhelpful for computing damages on a class-wide basis.
Id. The expert also could not link his model directly to the alleged breach of warranty, which is required under Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013). Rather, he conceded that he could not distinguish between damages attributable to the alleged breach and those attributable to "something else." Id. at *8.
Second, after excluding the plaintiffs' experts, the court ruled that the plaintiffs had not met their burden of proving the class certification requirements under Rule 23. The plaintiffs' claims were not typical because, for among other reasons, some of the product's users were aware of the risk of biofilm formation and had even taken precautions. None of the plaintiffs had read the product's directions for use, which included relevant information. Id.at **10. These issues—which are directly reminiscent of issues we deal with every day in product liability claims—are unique to each product user and require individualized inquiries. Id. at **10-11.
The plaintiffs were not adequate class representatives because their claims were arguably time barred, placing them in a conflict with class members whose claims would be timely and arguable more valuable. Id. at *11. Oddly, the plaintiffs did not prove numerosity, an element that is usually uncontested. Maybe the plaintiffs mistakenly thought it would be uncontested here too, because they submitted no evidence beyond speculation as to how many Cavitron devices were actually purchased and used. Id. at **12-13.
Finally, the proposed class did not meet the requirements of Rule 23(b)(3): Common questions did not predominate because whether certain representations were made and whether anyone relied on them are inherently individualized issues—again directly reminiscent of arguments we have made vigorously in product liability cases. Proving damages on a classwide basis was impossible too because, as prefaced above, each user could have derived different value from the product as accepted.
This class action bit the dust, and it is significant to us because it highlights issues with "economic loss" class actions that make them as untenable in the drug and medical device space as other kinds of class actions that are now history. With the current prevalence of inventory-dominated mass tort proceedings, we may never see a class action again. But if we do, we will drill down, don our lead vests, and expect to prevail.
This article is presented for informational purposes only and is not intended to constitute legal advice.
