Our abiding skepticism about multidistrict litigations (MDLs) is redeemed — a little — by the recent decision in In re CPAP, 2024 U.S. Dist. LEXIS 25528 (W.D.Pa. Feb. 14, 2024). The Lexis printout of the opinion is not nearly as long as it looks. More than half the pages merely list the attorneys. Lots and lots of attorneys.
The opinion we are discussing today was authored by the MDL district judge, reviewing the CPAP medical monitoring rulings of a special master. We previously analyzed the special master’s rulings here. In case you do not remember, we concluded that many of the special master rulings made sense. After all, the special master recommended that the defendant’s motion to dismiss be granted with respect to tort claims under the laws of 30 states that adhere to the traditional “manifest physical injury” rule. But the special master would have permitted many iffy claims, thereby violating the notion of Erie conservatism — i.e., that federal courts should not cavalierly predict that a state court would expand liability. We thought that parts of the special master’s rulings seemed overly ambitious or wrong or at least unclear. The district court thought so, too, as it issued instructions to the special master to try again. In a sense, the district court gave the special master (a retired Third Circuit judge) homework.
The CPAP MDL is made up of claims against CPAP machines. There were three forms of the dreaded master complaints: a personal injury master complaint, an economic loss master complaint, and a medical monitoring master complaint. It is that last version, medical monitoring, that is at issue here. The medical monitoring complaint includes 69 plaintiffs who purported to represent a nationwide class of people seeking medical monitoring. The medical monitoring complaint did not allege “a manifest physical injury.” The plaintiffs alleged that they had ingested foam toxins from the CPAPs and that such toxins were absorbed into their blood streams. Certain of the toxins were alleged to be carcinogenic and the prediction was that serious injuries would inevitably follow. The court tells us that “Plaintiffs’ counsel explained there will be no medical records diagnosing a subcellular injury but there will be expert testimony.” Right. We bet there will.
The district court prefaced its analysis by observing that medical monitoring “is a controversial concept that has not undergone widespread scrutiny in the state courts, let alone gained widespread acceptance.” We’ll be rather less polite. We think medical monitoring claims are dangerous bunk. Some courts think so, too. Some don’t. Some aren’t sure. The states are split in many ways over medical monitoring. Some states treat medical monitoring as its own claim. Where medical monitoring is not a stand-alone claim, its availability depends on establishment of the elements of another tort. It is a mess. The various judicial splits over medical monitoring are detailed in these posts.
The district court judge provides an excellent discussion of the binding Third Circuit precedent (which led off our prior post) that precludes courts sitting in diversity jurisdiction from expanding state law. A mere unsupported pronouncement by a federal court about what a state’s law should be ought not alone be sufficient to serve as the requisite clear indication of state law. Nor does a complete absence of authority support expansion of state law. The district court, thankfully, rejected the plaintiffs’ argument that in five states without relevant caselaw the court should “err on the side of liberal pleading.”
The district court ordered the special master’s broad holdings that certain state statutes support medical monitoring (criticized in our prior post) must be re-evaluated because the special master failed to analyze each state’s law. To be sure, the parties did not provide the special master with a state-by-state roadmap, which seems darned inconsiderate and darned silly. Medical monitoring claims must be analyzed under the laws for each state. Accordingly, the district court remanded to the state court to do better.
The district court did not disturb the special master’s determination that the declaratory judgment claim was plausibly pleaded, at least pending factual development of the medical monitoring claims in those jurisdictions that tolerate such nonsense.
No state-specific disputes about medical monitoring are resolved by the district court due to the special master’s recommendation being unclear and at some points complicated by “inadvertent” errors. The bottom line is that the special master’s report and recommendations were not adopted, and the special master and the parties have some work to do. File this under To Be Continued. But it is always gratifying to see an MDL court insist on rigorous examination of the legal claims.