Growing up down in Georgia, Bexis used the phrase “a whole lotta nuthin’” frequently when encountering things (like the 1970s Underground Atlanta tourist trap) or people (like Lester Maddox, who governed the same way he rode bicycles) that didn’t impress him much.  That’s the phrase that came to mind when we read In re E. I. du Pont de Nemours & Co. C-8 Personal Injury Litigation, ___ F.4th ___, 2023 WL 8183812 (6th Cir. Nov. 27, 2023).  Indeed, the opening sentence of the du Pont opinion was:  “Seldom is so ambitious a case filed on so slight a basis.”  Id. at 81.  And yes, du Pont was an appeal from yet another bizarrely pro-plaintiff MDL decision.

The du Pont litigation involved chemicals, not prescription medical products.  There, the district court spent over 35 published pages trying to create something out of nothing and certified a “medical monitoring” class action that included as members every person who resided in the State of Ohio.  It reached this result, inter alia, by defining class membership to reach any “individual” with “0.05 parts per trillion” of so-called “forever chemicals” (technically, “per- and polyfluoroalkyl substances” (“PFAS”)) in their blood.  Hardwick v. 3M Co., 589 F. Supp.3d 832, 840 (S.D. Ohio 2022), vacated, 2023 WL 8183812 (6th Cir. Nov. 27, 2023).  As the Sixth Circuit pointed out, in its 4-page, but precedential, decision vacating that monstrosity, that “trace amount” is:  (1) “present in the blood of every person residing in the United States” and (2) “orders of magnitude less than the amounts currently detectable by any testing.”  2023 WL 8183812, at *2.

The would-be class representative “d[id] not know what companies manufactured” the products that purportedly exposed him to PFAS, and “d[id] not know whether those particular PFAS were present” in those products.  Id. at *1.  So he arbitrarily sued “ten defendants” out “of the thousands of companies that have manufactured chemicals of this general type.”  Id.  Not surprisingly, the complaint simply lumped all the defendants together, with “both collective . . . and conclusory” allegations.  Id.  On that virtually non-existent basis, the MDL court “certified a class comprising every person residing in the State of Ohio − some 11.8 million people.”  Id.

In the Sixth Circuit, the MDL decision did not even make it to first base.  Not bothering to decertify the class, the appellate court ordered the action dismissed altogether for lack of standing.  To bring suit “[p]laintiffs must have suffered an injury.  They must trace this injury to the defendant.  And they must show that a court can redress it.”  Id. at *2 (citation and quotation marks omitted).  That a case is “a putative class action adds nothing to the question of standing.”  Id. (citation and quotation marks omitted).

The du Pont complaint utterly flunked – failing on the initial element of “traceability.”  First, “standing is not dispensed in gross.”  Id. at *3 (citation and quotation marks omitted).  Not only was the entire complaint pleaded collectively against “defendants,” but that was also how the class was certified – “referring to the actions of ‘Defendants’ throughout.”  Id.  A plaintiff “does not [have] a license to sue anyone over anything.”  Id. (citation and quotation marks omitted).  Because plaintiff “has not even tried to make that more specific showing” against any of the defendants, he lacked standing as to all of them.  Id.

Second, all of the plaintiff’s allegations were “conclusory.”  Id.  With thousands of different PFAS chemicals:

To allege simply that these defendants manufactured or otherwise distributed “PFAS,” therefore, is patently insufficient to support a plausible inference that any of them bear responsibility for the particular [five] PFAS in [plaintiff’s] blood. Yet nowhere in his complaint, for example, did [plaintiff] allege that any of these defendants, much less every one of them, manufactured any of those five compounds.

du Pont, 2023 WL 8183812, at *3.  Plaintiff “ha[d] not alleged facts supporting a plausible inference that any of these defendants caused these five particular PFAS to end up in his blood.”  Id. at *4.  Nor could he, since the complaint’s collective vagueness was essential to conceal the inherently individualized nature of the medical monitoring claims in the would-be class action.  Because plaintiff “elides rather than meets the Supreme Court’s requirements as to pleadings and traceability,” he “lacks standing” and the entire pipe dream of a complaint was dismissed.

What happened in du Pont is what should have happened to the equally meritless class actions in the Valsartan MDL litigation we criticized here.

If anyone wants to know why we are so strongly opposed to no-injury medical monitoring as a theory of liability, look no further than the du Pont and Valsartan litigations.  Like the Sixth Circuit in du Pont, we “begin and end, 2023 WL 8183812, at *3, with “medical monitoring” as a vehicle for abusive litigation – specifically for creating a whole lotta nuthin’.