Sometimes we feel as though we have gone back in time.  The Super Bowl is in San Francisco this week, as it was 10 years ago, although this time around, the atrium lobby of our building has been converted into an ESPN studio.  We are the temporary home of the Rich Eisen Show, with the likes of Hall of Famer Kurt Warner and performer O’Shea Jackson, Jr. gracing our presence.  It is quite the spectacle.  A Tech Boom accelerated about 10 years ago in San Francisco with companies like Salesforce and Twitter rapidly expanding, and now it’s happening again with AI and self-driving cars.  Justin Bieber was at his peak 10 years ago, and we are told that he totally nailed it just last week with a killer performance at the Grammys.  Good times.

The catalyst for this nostalgic romp is the district court’s order in Bynum v. Red River Talc, LLC, No. 24-7065, 2026 WL 242063 (D.N.J. Jan. 29, 2026), where a New Jersey federal judge put the kibosh on a medical monitoring class action.  Some of our earliest work in the product liability space was pushing back on class actions seeking future medical surveillance for individuals who have suffered no alleged injury.  Way back in 2006, we wrote an article for the Washington Legal Foundation (with our colleague and frequent guest blogger Kevin Hara) entitled Medical Monitoring: Innovative New Remedy or Money for Nothing?  You can guess which side of the debate we came out on. 

We like the order in Bynum, which strikes the plaintiffs’ class allegations and dismisses medical monitoring claims under New Jersey and Washington law.  The plaintiffs in Bynum allegedly used talcum powder and are part of the long-running In re J&J Talcum Powder MDL.  Of the five named plaintiffs on the class action complaint, some alleged illness caused by the products, and others alleged no injury at all. 

That difference was the downfall of their putative class action.  As a group, the plaintiffs sought certification of five classes: Three classes seeking medical monitoring on behalf of exposure-only consumers who experienced no injury, and two classes seeking compensatory and punitive damages on behalf of both injured and uninjured individuals.

We have known since the Supreme Court’s opinions in Amchem Products, Inc. v. Windsor and Ortiz v. Fibreboard that putative class actions on behalf of both injured and uninjured individuals present intractable conflicts of interest.  That is because injured claimants want to maximize their recovery and do so as soon as possible, while uninjured claimants favor preservation of resources to pay their claims later or over time. 

That conflict alone led the district court in Bynum to rule that the class representatives were not adequate, which doomed all the class allegations.  The court explained it this way:

Plaintiffs seek to litigate a class action on behalf of individuals who allege a present cancer diagnosis, as well as individuals who allege no present injury at all. As the Supreme Court recognized in Amchem and Ortiz, these groups have materially divergent interests.  Those already diagnosed with cancer may reasonably prioritize immediate compensatory and punitive damages, while those without a cancer diagnosis may reasonably prioritize a fund for medical monitoring, long-term preservation of resources, and protections against premature valuation of their claims.

Bynum, at *5 (citations omitted).  The plaintiffs could not overcome these conflicts.  They did not identify separate counsel for the different classes, nor any other safeguard to protect one class against another.  And, their principal authority in support was the train wreck class certification order from the Valsartan MDL, which was our number one worst case of 2023 and which the district judge here wisely distinguished.  In the end, “the proposed class suffers from a fundamental adequacy defect that cannot be cured through discovery . . . and Plaintiffs’ class allegations will be stricken from the Amended Complaint.”  Id. at *6. 

There is more.  After striking the class allegations, the court still had plaintiffs from New Jersey and Washington pressing individual claims for medical monitoring.  Those claims went nowhere either because neither plaintiff alleged a present, existing injury, which both New Jersey and Washington require for a medical monitoring claim.  The plaintiffs pivoted to assert that monitoring costs constitute a present economic injury, but the court found the 189-page amended complaint lacked nonconclusory factual allegations establishing any economic loss.  More fundamentally, even if the plaintiffs had plausibly pled an economic loss, the court held that economic harm alone cannot sustain a medical monitoring claim in either jurisdiction.  The court dismissed the medical monitoring claims without prejudice.

We have a few closing observations about this order.  First, nothing has changed since Amchem and Ortiz.  Mixing present-injury and exposure-only claimants is inherently fraught with conflicts, rendering class representatives inadequate under Rule 23(a)(4).  Second, courts remain willing to strike class allegations pre-discovery where the complaint discloses legal barriers.  A motion to strike was once considered innovative, but not anymore.  A motion to strike can be productive, especially in mass tort contexts with entrenched conflicts and anticipated predominance/superiority issues. 

Third, medical monitoring remains jurisdictionally constrained.  The requirement of a present, physical injury under New Jersey and Washington law was dispositive here, and other states’ laws would have predicted that same result.  Many states, however, still have not clearly addressed medical monitoring, making outcomes under some states’ laws uncertain. (See our 50-state survey on medical monitoring here.)  Fourth, this court did not reach predominance and superiority to reject this putative class action, but it could have.  This class action presented all the usual minefields for medical monitoring classes—individualized medical histories, individual issues on causation, state-law variability, etc.  All these factors weigh against class certification, and correctly.