On August 25, 2011, the Court of Appeals for the Third Circuit rendered a precedential decision in favor of the Firm’s client, Rohm and Haas Co., on an important issue of federal class action law. The plaintiffs, residents of a small town in northeastern Illinois, sued on behalf of all of the town’s residents, who allegedly were exposed to airborne amounts of a chemical that evaporated from a waste water facility on the company’s property. They alleged that exposure to above-normal levels of the chemical can cause cancer and sought an order requiring that all of the town’s residents receive periodic medical tests to screen for cancer. The Court of Appeals unanimously affirmed a decision by the trial court that such an action for “medical monitoring” cannot be certified as a federal class action because certification requires that the class members have a predominance of issues in common and there were too many differences in the evidence applicable to each of the town’s residents to satisfy that requirement.
The Court’s opinion, which was written by U.S. Circuit Judge Anthony J. Scirica, explained that the plaintiffs could not rely on testimony by experts to prove whether each member of the class was exposed to hazardous levels of the chemical because the expert testimony described only the average exposure of those living in the town over a 20-year period and evidence about such averages did not account for individual differences in the exposure levels of each resident. The Court noted that “[e]ach person's work, travel, and recreational habits may have affected their level of exposure," and held that the variations from person to person made creation of a medical monitoring class inappropriate. The Court thus agreed with the reasoning of U.S. District Judge Gene E.K. Pratter, who had ruled in the trial court that neither the medical monitoring claims nor additional claims by the plaintiffs for alleged damage to their property could be certified for class treatment because a class would not be sufficiently "cohesive" and individual issues would predominate.
A Schnader team led by Ralph Wellington and Samuel Silver handled the case before Judge Pratter in the trial court. Carl Solano, co-chair of Schnader’s Appellate Practice Group, argued the case before the Court of Appeals. He was assisted by a team that included Nilam Sanghvi and Stephen Fogdall.
Mr. Solano discussed the Court of Appeals’ decision in “3d Circuit Refuses to Certify Medical Monitoring Class,” which was published in The Legal Intelligencer on August 26, 2011. He explained that the requirements for class certification under Rule 23 of the Federal Rules of Civil Procedure are rigorous. “The court is saying you can't try to bypass those requirements by taking a broad brush approach that uses averages," said Mr. Solano.