Rising up down in Georgia, Bexis used the phrase “an entire lotta nuthin’” often when encountering issues (just like the Seventies Underground Atlanta vacationer entice) or individuals (like Lester Maddox, who ruled the identical approach he rode bicycles) that didn’t impress him a lot. That’s the phrase that got here to thoughts once we learn In re E. I. du Pont de Nemours & Co. C-8 Private Damage Litigation, ___ F.4th ___, 2023 WL 8183812 (sixth Cir. Nov. 27, 2023). Certainly, the opening sentence of the du Pont opinion was: “Seldom is so bold a case filed on so slight a foundation.” Id. at 81. And sure, du Pont was an enchantment from yet one more bizarrely pro-plaintiff MDL choice.
The du Pont litigation concerned chemical substances, not prescription medical merchandise. There, the district courtroom spent over 35 revealed pages making an attempt to create one thing out of nothing and authorized a “medical monitoring” class motion that included as members each one that resided within the State of Ohio. It reached this consequence, inter alia, by defining class membership to achieve any “particular person” with “0.05 elements per trillion” of so-called “endlessly chemical substances” (technically, “per- and polyfluoroalkyl substances” (“PFAS”)) of their blood. Hardwick v. 3M Co., 589 F. Supp.3d 832, 840 (S.D. Ohio 2022), vacated, 2023 WL 8183812 (sixth Cir. Nov. 27, 2023). Because the Sixth Circuit identified, in its 4-page, however precedential, choice vacating that monstrosity, that “hint quantity” is: (1) “current within the blood of each individual residing in the US” and (2) “orders of magnitude lower than the quantities at present detectable by any testing.” 2023 WL 8183812, at *2.
The would-be class consultant “d[id] not know what corporations manufactured” the merchandise that purportedly uncovered him to PFAS, and “d[id] not know whether or not these specific PFAS have been current” in these merchandise. Id. at *1. So he arbitrarily sued “ten defendants” out “of the hundreds of corporations which have manufactured chemical substances of this normal kind.” Id. Not surprisingly, the criticism merely lumped all of the defendants collectively, with “each collective . . . and conclusory” allegations. Id. On that nearly non-existent foundation, the MDL courtroom “licensed a category comprising each individual residing within the State of Ohio − some 11.8 million individuals.” Id.
Within the Sixth Circuit, the MDL choice didn’t even make it to first base. Not bothering to decertify the category, the appellate courtroom ordered the motion dismissed altogether for lack of standing. To carry go well with “[p]laintiffs will need to have suffered an damage. They have to hint this damage to the defendant. They usually should present {that a} courtroom can redress it.” Id. at *2 (quotation and citation marks omitted). {That a} case is “a putative class motion provides nothing to the query of standing.” Id. (quotation and citation marks omitted).
The du Pont criticism completely flunked – failing on the preliminary ingredient of “traceability.” First, “standing is just not allotted in gross.” Id. at *3 (quotation and citation marks omitted). Not solely was the whole criticism pleaded collectively in opposition to “defendants,” however that was additionally how the category was licensed – “referring to the actions of ‘Defendants’ all through.” Id. A plaintiff “doesn’t [have] a license to sue anybody over something.” Id. (quotation and citation marks omitted). As a result of plaintiff “has not even tried to make that extra particular exhibiting” in opposition to any of the defendants, he lacked standing as to all of them. Id.
Second, all the plaintiff’s allegations have been “conclusory.” Id. With hundreds of various PFAS chemical substances:
To allege merely that these defendants manufactured or in any other case distributed “PFAS,” due to this fact, is patently inadequate to help a believable inference that any of them bear duty for the actual [five] PFAS in [plaintiff’s] blood. But nowhere in his criticism, for instance, did [plaintiff] allege that any of those defendants, a lot much less each one among them, manufactured any of these 5 compounds.
du Pont, 2023 WL 8183812, at *3. Plaintiff “ha[d] not alleged information supporting a believable inference that any of those defendants brought on these 5 specific PFAS to finish up in his blood.” Id. at *4. Nor may he, because the criticism’s collective vagueness was important to hide the inherently individualized nature of the medical monitoring claims within the would-be class motion. As a result of plaintiff “elides moderately than meets the Supreme Courtroom’s necessities as to pleadings and traceability,” he “lacks standing” and the whole pipe dream of a criticism was dismissed.
What occurred in du Pont is what ought to have occurred to the equally meritless class actions within the Valsartan MDL litigation we criticized right here.
If anybody needs to know why we are so strongly opposed to no-injury medical monitoring as a principle of legal responsibility, look no additional than the du Pont and Valsartan litigations. Just like the Sixth Circuit in du Pont, we “start and finish, 2023 WL 8183812, at *3, with “medical monitoring” as a automobile for abusive litigation – particularly for creating an entire lotta nuthin’.
