The use of medical monitoring as a remedy for mass exposure to toxic chemicals has suffered a setback in New Jersey.
A federal judge in Camden has denied class certification sought in behalf of 15,000 people whose drinking water may have been contaminated by a chemical spilled from DuPont’s Chambers Works in Salem County.
The plaintiffs want DuPont to pay for medical monitoring to provide early warning of health problems caused by perfluorooctanoic acid (PFOA) — used in the manufacture of nonstick cookware, microwave popcorn bags and other products — that seeped into the water of the Penns Grove Water Supply Co.
New Jersey courts have recognized medical monitoring as a remedy for groups of plaintiffs exposed to dangerous substances. It works unless there are so many significant individual issues that the case would break down into litigation of individual claims, the courts have said.
And that’s what led to U.S. District Judge Renee Bumb’s Dec. 23 decision denying certification in Rowe v. DuPont Rowe v. E.I. du Pont de Nemours and Co. , 06-810.
She ruled that there were too many variables among the potential class members’ exposure to the chemical or their potential risk of disease. The plaintiffs’ lawyers had relied on expert opinions that identified risk factors common to the average plaintiff suffering the average exposure.
“Rather than conducting in-depth research and meaningfully identifying a group of individuals who have actually suffered ‘significant exposure,’ plaintiffs have relied on risk assessments and superficially identified a group of individuals who have potentially suffered a ‘significant exposure.'” the judge wrote.
“This is insufficient for purposes of class certification,” she added.
At the same time, she gave the plaintiffs’ lawyers 30 days to come up with proposals to make the class viable, presumably by narrowing the qualifications for inclusion. The lawyers said they were reviewing the decision to determine whether she did indeed provide a second chance.
Bumb suggested, for example, that the plaintiffs could have improved their application for certification by conducting blood serum tests of the proposed class members to determine whether their PFOA levels were above those of the general population.
The plaintiffs’ lawyers had argued that such testing shouldn’t be a requirement for obtaining class certification. Those are the tests they are seeking in medical monitoring.
They also pointed out that a state court judge in West Virginia, in a similar class action case against DuPont alleging PFOA pollution of drinking water, ruled that a class could be certified.
In that case, Leach v. E.I. du Pont de Nemours & Co. , WL 1270121, DuPont settled and agreed to the monitoring.
But Bumb declined to follow that ruling, saying New Jersey medical-monitoring law was different, as were the facts of the case.
Company spokesman Dan Turner said on Tuesday that DuPont was pleased with Bumb’s decision.
There is no dispute in the case that the air and water around DuPont have been subject to releases of PFOA, used at the Chambers Works since the 1950s. The question is how much got into the drinking water and whether the levels that show up in human tissue are high enough to cause medical problems. Bumb said in her opinion that the health effects “appear to be uncertain” but that some studies have shown that exposure to the chemical may cause liver disease, cancers and cholesterol abnormalities.
The N.J. Department of Environmental Protection has issued preliminary guidelines requiring that water supplies have PFOA levels lower than .04 parts per billion, but the plaintiffs’ evidence suggests that recent tests of the water company’s wells showed PFOA levels as high as .190 ppb.
The plaintiffs presented expert evidence showing a correlation between PFOA levels in blood serum and various liver enzymes associated with liver disease, and six of the named plaintiffs had levels six times higher than the general population.
Bumb said that suggests the named plaintiffs may be at increased risk of disease.
“It does not prove that all potential class members are at an increased risk of disease because it says nothing about the actual serum PFOA levels of the proposed class members,” she said.
If the plaintiffs want to rely on the expert’s serum analysis to prove class-wide increased risk of disease, “they need to submit evidence of class-wide heightened serum PFOA levels, which they have not done.”
The leading case New Jersey case on medical monitoring, Ayers v. Jackson Twp., 202 N.J. Super. 106 (1987), requires judges to demonstrate that the classes are cohesive by showing that all class members can prove the elements of medical monitoring through common evidence.
Bumb ruled that the common evidence could prove that PFOA is toxic, the diseases caused by exposure to PFOA are serious and early diagnosis is valuable.
But she said common evidence wouldn’t be enough to demonstrate “significant exposure, increased risk of disease, and the need for medical monitoring different than any monitoring than otherwise required.”
There were two sets of plaintiffs in the case, one seeking monitoring for anyone exposed to the water for a year or more and one exposed to the water at any time.
One of the lawyers for the second group, Philip Fuoco, who has a firm in Haddonfield, says it’s not clear how much Bumb left open on the medical monitoring question. “We’re still attempting to interpret what she did.”