Consumer Class Actions and Mass Torts : Class Action Lawyer & Attorney : J. Russell Jackson : Skadden Law Firm : Complex Class Actions : Consumer Class Actions & Mass Torts Law Blog

Conventional wisdom says that classes involving personal injuries or emotional distress damages cannot be certified because individual issues predominate those types of claims.  As Law360 reported on Tuesday, that conventional wisdom was confirmed by a recent decision in the litigation involving Similac powdered infant formula, which the manufacturer had recalled based on reports of beetle larvae contamination that allegedly caused some infants to suffer gastrointestinal problems.  See Brandner v. Abbott Labs., Inc., Civ. A. No. 10-3242, Slip op. (E.D. La. Jan. 23, 2012).

Plaintiff sought certification of a Louisiana-only Rule 23(b)(3) class of purchasers of Similac products bearing recall lot numbers that were purchased during the recall purchase period.  She asserted claims for personal injury and emotional distress damages under Louisiana's Product Liability Act, and she asserted economic loss under a theory of redhibition.

The court described its job as identifying the substantive issues that would control the outcome of the case, assessing which issues would predominate and whether they were common to the class, and then determining whether there is a way to try the case that would prevent "'the class from degenerating into a series of individual trials.'"  Slip op. at 6 (quoting Madison v. Chalmette Refining LLC, 637 F.3d 551, 555 (5th Cir. 2011)).

The court examined the elements of an LPLA claim, and quickly concluded that it needed to go no further than holding that the elements of predominance and superiority were not met:

The Court finds that the individual issues predominate over issues common to the class.  First, despite Brandner's argument to the contrary, the LPLA requires a plaintiff to demonstrate that the product was unreasonably dangerous when it left the manufacturer's control.  Courts routinely deny claims when the plaintiff cannot establish this element of an LPLA cause of action.  Whether each class member purchased contaminated Similac is subject to individualized, not collective, proof.

Second, each putative class member must establish that Abbott's actions were a proximate cause of his or her injury. . . .  The court need not determine predominance with respect to general causation, because proving specific causation would require a determination of "an individual's family and medical history; age; gender; diet; . . . the timing of ingestion of the product; . . . whether that individual suffered an injury, when the injury occurred, the type of injury suffered, and the number of occurrences of the injury; the likelihood of injury; and/or the foundation as to whether a justifiable fear of injury exists." . . .  This highly individualized inquiry leads the court to conclude that issues common to the class do not predominate.

Third, all plaintiffs who claim emotional distress . . . would have to establish not only the distress but also the attendant damages. . . .  The damages issue requires a determination of whether plaintiffs sought medical treatment, psychiatric treatment, the degree to which plaintiffs manifested generalized fear, and the severity of plaintiffs' emotional distress.  Because the determination of whether each member suffered emotional distress turns on a highly individualized assessment, questions of fact regarding individual members predominated over common issues of fact.

. . . Establishing emotional [distress] damages would entail the exact type of 'mini-trials' the Fifth Circuit has cautioned against.

Slip op. at 9-13 (citations omitted).

The court also denied certification of the redhibition claim, which required claimants to establish that the product had a physical imperfection or deformity at the time it was purchased in order for the claimants to recover the purchase price, as well as any interest.  Plaintiff argued that the fact of the recall made the redhibition claim subject to common proof.  The court held otherwise.  Because the defendant's testing had not found contamination in every batch, and because many of the lots that were included within the recall simply were not tested at all, there was no way to know on a class-member-by-class-member basis whether the product actually was contaminated.  If it was not, there was no claim under Louisiana redhibition law.  Moreover, the recall was voluntary and did not admit contamination of each of the recalled lot numbers; in fact, the recall notice had said the possibility of contamination was remote.  Accordingly, the court held that common issues did not predominate for this cause of action as well.

Because the court was able to decide the class certification motion on the issues of predominance and superiority, it did not engage in an analysis of Rule 23(a) factors or have to construe the Supreme Court's Wal-Mart v. Dukes decision.

Although the result in Brandner is hardly surprising, it is a good reminder why class actions for personal injuries and emotional distress simply are not suited for class action treatment.

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The Eighth Circuit recently issued a Daubert opinion that provides a good reminder that in toxic tort cases, experts must pay attention to issues of actual exposure and dose before they can have an admissible opinion on "specific" causation (i.e., that the plaintiff's exposure to the chemical caused his injury).

In Barrett v. Rhodia, Inc., No. 09-3115, Slip op. (8th Cir. May 24, 2010), the plaintiff worked for a company that disposed of hazardous waste.  Plaintiff's job was to assist in ash fixation -- making waste materials stable enough to be disposed of in landfills.  Plaintiff worked in a three-story facility with steel grating floors.  One of his co-workers would open a barrel of phosphorus pentasulfide and load it into a chute on the third floor.  Plaintiff's job was to open the door of the chute on the second floor and let the phosphorus pentasulfide flow down to the first floor, where the waste materials awaited treatment.

Phosphorus pentasulfide is a powder that defendant delivered in barrels.  It reacts with water and water vapor, forming toxic hydrogen sulfide gas.  If the dust is enhaled, it interacts with moisture in the lungs to form the gas.  High concentrations of hydrogen sulfide gas (500 to 1,000 ppm) can cause unconsciousness and death.

Because of its known toxicity, OSHA advises that workers who use the chemical wear protective clothing and a self-contained breathing apparatus.  On the date in question, the employee on the third floor wore a breathing apparatus, put plaintiff and his colleagues on the lower floor did not.  The employee on the third floor loaded the chute.  When plaintiff went to open the second-floor chute, he collapsed.  He subsequently was diagnosed with dementia resulting from lack of oxygen to the brain.

Plaintiff's employer hired someone to investigate the incident.  They opened the drums of phosphorus pentasulfide and found hydrogen sulfide gas in the headspace of the drums at a concentration as much as 5,500 ppm. 

Plaintiff sued the defendant chemical supplier, claiming that the drum was defectively designed to allow hydrogen sulfide to build up in the headspace and that defendant failed to warn of the risk of harm from hydrogen sulfide in the headspace of the drum.  Plaintiffs' experts were prepared to testify that it was the act of third floor employee in opening the drum that caused plaintiff to be exposed to enough hydrogen sulfide to pass out and be injured.

Defendant moved to exclude plaintiff's expert testimony under Daubert, arguing that although some of the experts might be qualified to testify to general causation -- i.e., that hydrogen sulfide can cause the type of injury that plaintiff has -- none were able to testify to specific causation with the requisite degree of scientific reliability because they did not establish that plaintiff was exposed to hydrogen sulfide from the drum's headspace and, if so, in what dose.  In fact, the defendant hired its own expert who conducted drum opening experiments in the employer's facility, including gas dispersion calculations to determine how much hydrogen sulfide gas a person standing twelve to fourteen feet below the drum (on the second floor) would receive.  Defendant's expert concluded that the plaintiff could not have been exposed to a sufficient concentration of hydrogen sulfide gas to cause plaintiff's reaction.  The defendant's expert concluded that the more likely explanation was that plaintiff -- who wore no breathing apparatus -- inhaled phosphorus pentasulfide dust when he tried to open the chute.  This, of course, was a danger that was amply warned about.

Plaintiff's primary expert was an experienced allergist who was board certified in toxicology.  She had never treated anyone with exposure to hydrogen sulfide gas.  And she "conceded that she did not know how hydrogen sulfide disperses, the distance between [plaintiff] and the . . . drum alleged to be the source of the gas, or the concentration of hydrogen sulfide gas, if any, in the drum."  Slip. op. at 8.  She also testified that she did not rule out other potential causes of plaintiff's injury -- such as the inhalation of phosphorus pentasulfide dust -- prior to forming her causation opinion, which she admitted was "based on assumption, without any scientific testing or analysis."  Slip op. at 8-9.

The court stressed that "[t]he plaintiff in a toxic tort strict liability case needs to establish causation through expert testimony," which in this case meant both general causation and "that [plaintiff] was exposed to hydrogen sulfide gas which dispersed from the . . . drum manufactured by [defendant] in sufficient concentration to cause his injuries."  Slip op. at 7.  Without admissible expert testimony on this point, plaintiff failed to establish a prima facie case.

The court affirmed the trial court's grant of summary judgment for the defendant based on plaintiff's failure to offer admissible expert testimony on specific causation:

[Plaintiff's experts] had presented insufficient evidence, and no expert evidence, on specific causation.  They had not shown that hydrogen sulfide gas released from [defendant's] drum was the source of [plaintiff's] injuries.  The [district] court also noted that appellants had offered no evidence to refute [defendant's] expert, who had testified in his deposition on the basis of chemical analysis and modeling that [plaintiff] had actually inhaled [phosphorus pentasulfide] dust as a result of not wearing any protective equipment.

Slip op. at 13. 

Plaintiffs tried to rely on temporal relationships and the employer's investigator's finding of gas in the drums to get to a jury on the question of specific causation.  But the Eighth Circuit said no; expert proof on dose and exposure is required in toxic tort cases:  "Although a mathematically precise quantification of exposure level is not required, [plaintiff and his employer] were required to present expert evidence that [plaintiff] was exposed to toxic levels of hydrogen sulfide gas, as opposed to [phosphorus pentasulfide] dust."  Slip op. at 14.

Barrett is a strong reminder that experts must do their homework on the basic questions of exposure and dose, and work to eliminate potential alternative causes, in order to have admissible testimony that meets a plaintiff's prima facie burden of proof in a toxic tort case.

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The court handling Delaware's Seroquel cases recently issued a thoughtful opinion analyzing the admissibility of medical causation testimony.  See Hopkins v. AstraZeneca Pharmaceuticals, LP, 2010 WL 1267219 (Del. Super. -- New Castle Co. Mar. 31, 2010).

In Hopkins, plaintiff was a morbidly obese woman whose family history and medical condition put her at a substantially increased risk of developing Type II diabetes.  She began taking Seroquel as a sleep aid in January 2003, and stopped after less than two years, when she was diagnosed with Type II diabetes.  Plaintiff sued Seroquel's manufacturer, alleging that the medicine caused her to develop diabetes.  The defendant moved for summary judgment, arguing that plaintiff had no credible proof of specific causation.

In response, plaintiff proffered the testimony of Dr. Loren W. Greene, a Clinical Associate Professor of Medicine at NYU School of Medicine who is board certified in Internal Medicine as well as Endocrinology and Metabolism.  Id. at *3.  The defendant did not challenge Dr. Greene's qualifications.

It did, however, challenge her methodology.  The defendant argued that Dr. Greene could not give an opinion to a reasonable degree of medical certainty as to how Seroquel causes diabetes, and she could not isolate Seroquel from the other potential causes.  Her opinion, at its core, was a temporal association:  because plaintiff had not developed Type II diabetes before, it must be that she developed diabetes shortly after taking Seroquel because of the Seroquel.  Id. at *5-*6.  And yet Dr. Greene could not rule out chronic morbid obesity as the sole cause of plaintiff's diabetes.  Id. at *6.

Delaware follows Daubert and has adopted an identical version of Rule 702 requiring expert testimony to be based on sufficient data, reliable principles, and the reliable application of those principles to the facts of the case.  The court ultimately held that Dr. Greene's testimony was inadmissible because she:  (1) failed to adequately explain her methodology, (2) placed too much emphasis on the temporal relationship, (3) failed to rule out other likely causes, and (4) failed to explain how she incorporated data from epidemiological studies and clinical studies into her analysis.

Because Dr. Greene's specific causation testimony was inadmissible, the court granted the defendant's motion for summary judgment against plaintiff.

The opinion in Hopkins is an example of a very workmanlike approach to the admissibility of scientific expert testimony.  It takes the court's gatekeeping function seriously, while not erecting impossible burdens for the expert to overcome.  Clearly, the court was influenced by the fact that much of the expert's deposition was spent answering "I don't recall" to questions about studies forming the basic underlying theory of general causation.

One often wonders what the subsequent impact is of judicial opinions rejecting expert testimony for failure to follow the scientific method.  For example, does any sort of review board take up the issue of a medical professor's methodology when it has been rejected by a court of law?  To the extent a treating physician and professor has, in paid testimony, reached a conclusion on specific causation without excluding other likely causes of the condition, should that have any relevance beyond the litigation context?

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