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State Consumer Protection Law: A New Path to Medical Monitoring Class Actions?
Medical monitoring is often pursued as a claim in class actions against corporate defendants based on exposures to environmental pollutants or products that allegedly have the potential to cause future health problems. Because medical monitoring is an exception to the general requirement that the plaintiff must have a present injury in order to pursue a claim, many jurisdictions have adopted strict elements that a plaintiff must satisfy in order to succeed on a medical monitoring claim. These elements often require the court to consider issues specific to individual plaintiffs, particularly aspects of each plaintiff's medical history that have an impact on the need for or the extent of the proposed medical monitoring. As a result of these individual medical issues, many courts in recent years have refused to certify medical monitoring class actions. See, e.g., Ball v. Union Carbide Corp., 385 F.3d 713, 727-28 (6th Cir. 2004); Zinser v. Accufix Research Inst., Inc., 253 F. 3d 1180, 1195-96, amended, 273 F.3d 1266 (9th Cir. 2001); Barnes v. Am. Tobacco Co., 161 F.3d 127, 143 (3d Cir. 1998); Boughton v. Cotter Corp., 65 F.3d 823, 827 (10th Cir. 1995).
As in other contexts, plaintiffs' counsel are turning to state consumer protection law in order to circumvent these limitations and plead a claim with a better chance of class certification. Thus, instead of pursing medical monitoring as a claim, plaintiffs allege a violation of state consumer protection law and then seek to recover the expenses of medical monitoring as damages for the consumer protection claim. Although pursuing medical monitoring via a consumer protection claim obviously does not eliminate the individual medical issues, the District of Minne-sota recently certified a proposed class action under these circumstances in the Silzone heart valve litigation. See In re St. Jude Medical, Inc. Silzone Heart Valves Products Liability Litigation, No. MDL 01-1396, 2006 WL 2943154 (D. Minn. Oct. 13, 2006).
The Silzone' heart valve litigation arose after the defendant, St. Jude Medical, voluntarily recalled prosthetic heart valves due to an increased risk of paravalvular leaks. Following consolidation of more than 11,000 claims in the MDL, plaintiffs filed a consolidated complaint asserting claims for strict liability, breach of warranty, negligence, medical monitoring, and violations of Minnesota's False Advertising Act, Consumer Fraud Act, Unlawful Trade Practices Act, and the Uniform Deceptive Trade Practices Act. In re St. Jude Medical, Inc., 2006 WL 2943154 at * 1. Plaintiffs moved for the certification of two classes: a medical monitoring class seeking only injunctive relief and a personal injury class seeking money damages.
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