We like CAFA – that is the Class Action Fairness Act – because a federal forum is generally much preferred (and becoming moreso after Dukes and Comcast) for class actions involving prescription medical products, not to mention just about anything else. Thus we cautioned some time ago that the industry could “lose by winning” to the extent that it defeated what were essentially no-injury class actions on the ground that the plaintiffs had no constitutional standing under Article III to bring such claims.
What’s the problem with that?
CAFA, that’s what. Specifically, unless the plaintiffs in a state-court class action assert enough of an injury to confer constitutional standing, the case can’t be removed to (or, more specifically, cannot remain in) federal court. That's an issue because some states have statutes that permit suits based on allegations of injury that are too remote or too attenuated to support standing under Article III's "case or controversy" requirement for suing in federal court.
Our general view is that most medical monitoring class actions (and more generally, most no-injury class actions of all sorts) are vulnerable on multiple fronts, so there’s no need to employ the Article III standing cudgel from our armamentarium to beat them. Possible exceptions to this rule should be examined very carefully to avoid creating adverse precedent.
Sure enough, the potential for plaintiff-side mischief that we identified in our CAFA Not With Standing post have in fact cropped up. So far, we’re doing all right. Late last year weblogged about Bouldry v. C.R. Bard, Inc., ___ F. Supp.2d ___, 2012 WL 6599829 (S.D. Fla. Dec. 18, 2012), in which medical monitoring plaintiffs advanced their own purported lack of constitutional standing as a basis for remand of an otherwise CAFA-eligible case to state court. Fortunately for CAFA, those plaintiffs failed. Standing was recognized with respect to medical monitoring claimants under both federal (“an alleged increased risk of future harm satisfies Article III's injury-in-fact requirement,” id. at *3) and state (“plaintiffs in cases such as these have yet to suffer physical injuries, [but] it is not accurate to say that no injury has arisen at all,” id.) grounds.
Fast forward to last week. The CAFA/standing argument resurfaced in our neighborhood. We’re pleased to report that, once again, the plaintiffs’ claim of lack of constitutional standing was rejected. See Brown v. C.R. Bard, Inc., ___ F. Supp.2d ___, 2013 WL 1787561 (E.D. Pa. April 26, 2013). As in Bouldry, the medical monitoring claims were based on the allegation that a particular implanted medical device, which was functioning perfectly, was nevertheless “at risk of fracturing at some point in the future.” Id. at *1.
Understandably, plaintiffs were desperate to get Brownremanded, since there is controlling Third Circuit precedent that “might-break-in-the-future”claims are not actionable under Pennsylvania law. See Angus v. Shiley, Inc., 989 F.2d 142 (3d Cir. 1993) (rejecting similar claim that heart valve might break in the future) (applying Pennsylvania law).
Thus, these plaintiffs made the same argument as their counterparts in Bouldry – that the need for medical monitoring was not an alleged “injury” sufficient to confer constitutional standing. The key case in these parts is Reilly v. Ceridian Corp., 664 F.3d 38 (3d Cir. 2011), which – lo and behold – was the decision that prompted our initial CAFA Not With Standing post. Brown relied upon the same discussion in Reilly that we highlighted in our post:
The plaintiffs in Reilly attempted to sue a payroll processing firm after a breach in the firm's security system potentially exposed the plaintiffs’ personal information. In holding that the plaintiffs lacked standing, the Third Circuit Court of Appeals compared them to litigants in defective-medical-device cases who require medical monitoring. See [Reilly] at 44. The court noted that in the latter type of cases, “an injury has undoubtedly occurred. In medical-device cases, a defective device has been implanted into the human body with a quantifiable risk of failure. . . . Hence, the damage has been done; we just cannot yet quantify how it will manifest itself.” Id. at 45 (emphasis supplied).
Brown, 2013 WL 1787561, at *2 (emphasis original in Brown). Indeed, the court in Brown harkened back to one of our old Bone Screw cases – decided before CAFA was even a gleam in defense counsel’s eye – where Judge Bechtle held that “exposure to a potentially dangerous medical device whose safety has not been demonstrated” was an injury-in-fact for purposes of establishing standing. In re Orthopedic Bone Screw Products Liability Litigation, 1999 WL 455667, at *5 (E.D. Pa. July 2, 1999). See Brown, 2013 WL 1787561, at *2 (citing Bone Screw among other cases).
Thus the court in Brown, like the court in Bouldry before it, answered the $64,000 question in favor of constitutional standing:
[A]n injury-in-fact exists once a plaintiff has a potentially defective medical device implanted into her body. . . . [G]iven the facts alleged in the complaint and the law in this Circuit, there are no doubts to resolve here. Under Reilly, “an injury has undoubtedly occurred” when a potentially defective medical device is implanted within a patient. 664 F.3d at 45. Therefore, the complaint's allegation that [plaintiffs] received potentially defective [implant] ensures that they suffered an injury-in-fact under Article III.
Brown, 2013 WL 1787561, at *3 (other citations omitted).
The Brown decision also rejects a couple of other standing-related arguments: (1) It didn’t matter that the complaint expressly alleged that the action was not removable because plaintiffs were not alleging device failure or present injuries. That “injury-in-fact” allegation was a mere conclusion of law that under TwIqbal a court could disregard. Id. at *3. (2) Plaintiffs claimed that standing required a “future risk of physical injury [that] exceeds a 50 percent chance of being manifest.” The court found no such requirement in any of the standing cases and refused to invent one. Id.
One wonders – at least we wonder – whether plaintiffs have unavailingly tried no-constitutional-standing arguments in CAFA-removed cases not involving prescription medical products, so we decided to take a look.
We didn’t find much. The most interesting case is probably Colucci v. ZonePerfect Nutrition Co., 2012 WL 6737800 (N.D. Cal. Dec. 28, 2012). Colucci was a California UCL case where the plaintiff’s damages were allegedly a higher price paid due to claimed mislabeling of a food product. Plaintiff sued over 20 similar kinds of products, but had only actually bought one of them. The court nonetheless found Article III standing as to all 20 products. Id. at *4-5. If there’s constitutional standing in Colucci, we have to think there would also be such standing in any case brought against a prescription medical product manufacturer.
Conversely, a remand for lack of Article III standing occurred in Robinson v. Hornell Brewing Co., 2012 WL 6213777, at *8 (D.N.J. Dec. 13, 2012), but the issue was quite different, since the plaintiff was seeking only injunctive relief. Robinson thus did not involve lack of cognizable injury by a product user as the asserted ground for lack of standing. All the other Article III standing cases under CAFA either involve extraneous issues, such as associational standing, or have since been resolved by statutory amendments, such as whether an individual plaintiff has standing after the class action aspects of a case have been disposed of.
So right now, we’re 2-0 on Article III standing under CAFA where the plaintiff resists removal on lack of a constitutionally cognizable injury. Next up – the hat trick.