Medical monitoring claims are an odd thing.

We almost never see them in individual lawsuits. Plaintiffs are happy to recover money damages; they don’t need an injunction to obtain medical monitoring relief.

Somehow, in the class action context, those very same plaintiffs need different relief: The class members say they need injunctions to guarantee that they receive necessary medical check-ups.
Why? Why do people need medical attention when they sue as a class that they do not need when the very same people sue individually?

Oddly enough, we don’t think the answer lies in medical science. We don’t think that people need different medical treatment when they sue collectively than they need when they sue individually. Rather, we think that counsel choose to pursue different relief for putative class members because that is counsel’s only hope for obtaining class certification, which is where the payoff lies.

Historically, when class counsel sought to recover money damages to pay for medical check-ups for class members, courts refused to certify those classes. Classwide claims for money damages had to be pursued under Federal Rule of Civil Procedure 23(b)(3), and the plaintiffs’ conditions varied too widely to permit class certification under that rule.

So plaintiffs’ counsel changed their tack. Instead of seeking money damages to pay for check-ups, counsel began seeking injunctions to compel defendants to create medical monitoring programs to benefit the class. Since these complaints supposedly sought “injunctive” relief, the classes did not have to satisfy the stringent requirements of Rule 23(b)(3) and could supposedly be certified under the supposedly less restrictive Rule 23(b)(2). A few courts fell for this ruse, certifying (b)(2) medical monitoring classes, and the floodgates opened. Product liability class action complaints routinely sought money damages under (b)(3) and also sought injunctive relief in the form of medical monitoring programs under (b)(2).

Needless to say, this sleight-of-hand did nothing to improve the logic of the law. Courts were being asked to certify under one subsection of Rule 23 classes that did no more than plead thinly disguised versions of claims that coud not be certified under another section. The law has now adjusted to this legal legerdemain, but the adjustment hasn’t been pretty.

The New Jersey appellate decision of Buynie v. Airco, No. A-3193-05T1, 2007 WL 2275013 (N.J. Super. Aug. 10, 2007), is the most recent example of what’s happened.

In Buynie, plaintiffs were employed at a Pantasote plant in New Jersey that manufactured poly vinyl chloride. One of the constituents of poly vinyl chloride is vinyl chloride monomer (“VCM”), a colorless gas that has been classified by the EPA as a Group A human carcinogen. Plaintiffs pleaded claims on behalf of a putative class of all employees at the plant seeking an injunction under the New Jersey equivalent of Federal Rule 23(b)(2) to compel the defendants to establish a medical monitoring program.

How do defendants oppose class certification in this context? They know they can defeat a motion for class certification under Rule 23(b)(3) — and properly so: The individual plaintiffs’ exposure to VCM varied in amount and duration, as did the plaintiffs’ lifestyle and other factors that predisposed them to cancer. So the defendants must graft the (b)(3) factors into the (b)(2) analysis to defeat the plaintiffs’ claim for relief under a different name.

Under (b)(3), defendants would defeat class certification because classwide issues do not “predominate.” Defendants therefore explain that, although (b)(2) does not have a “predominance” requirement, (b)(2) does require that the class’s claims be “cohesive.” And what does “cohesiveness” mean? Exactly the same thing as predominance.

Don’t take our word for it. Look at what the court did in Buynie. Certification under (b)(2) “requires that the class be cohesive. In fact, the need for cohesiveness is enhanced for a (b)(2) [class] because individual class members have no ability to opt out of the class.” Id., slip op. at 14. And what precedents did the court rely upon to determine whether a class is cohesive under (b)(2)? None other than the U.S. Supreme Court decision in AmChem, a (b)(3) case. The AmChem class could not be certified under (b)(3) because the plaintiffs had been exposed to different products in different ways and different amounts over different periods of time. The consequences of exposure differed for each plaintiff, and plaintiffs differed in their medical histories and treatment needs.

The Third Circuit, in Barnes v. American Tobacco Co., 161 F.3d 127 (3d Cir. 1998), applied those same types of factors to decertify a (b)(2) class that sought medical monitoring relief. And the Buynie court followed that precedent to use the same (b)(3) factors to affirm the trial court order denying class certification because the proposed class lacked the cohesiveness required by Rule 23(b)(2). Voila — (b)(2) becomes (b)(3)!

We’re not criticizing the Buynie court here. We like this result; we agree with this result; we think this is a perfectly good way to get there.

But we’re disturbed as lawyers about the convergence of Rules 23(b)(2) and 23(b)(3). A few decades ago, those rules were reasonably distinct: (b)(2) classes sought, for example, injunctions prohibiting discrimination, while (b)(3) classes sought money damages. Over time, the plaintiffs’ bar merged these two provisions by seeking “injunctions” that would really do no more than award money damages in disguise. To defeat class certification in those cases, defendants (properly) imported (b)(3) analysis to defeat certification of what were, in reality, (b)(3) claims. The courts accepted that analysis, and — presto! — courts now analyze (b)(2) classes under standards that were developed for (b)(3).

Although this may achieve the right result in the (b)(2) medical monitoring cases, the analysis distorts the fabric of the law. Over time, the analysis of (b)(2) and (b)(3) classes will merge, and courts and litigants will struggle to remember that those provisions were created to address very different legal issues that, in many instances, require very different legal analysis.