As attorneys across the country fight over whether to consolidate litigation over the bladder infection medication Elmiron into a single federal court, a district judge in Pennsylvania has decided that claims seeking medical monitoring over the medication can’t be litigated as a national class action.
U.S. District Judge Wendy Beetlestone of the Eastern District of Pennsylvania granted a motion by Janssen Pharmaceuticals to strike all allegations of a proposed nationwide class action in the case Almond v. Janssen Pharmaceuticals.
Although the plaintiffs had argued that Pennsylvania law could apply to all the members of the class, Beetlestone disagreed, and said each plaintiff’s case should be handled under the law of their home states—some of which do not allow plaintiffs to pursue medical monitoring as a cause of action.
“Here, the proposed nationwide class is not sufficiently cohesive. Rather, a fault line divides class members whom state law permits to seek relief through a no-injury medical monitoring claim, and those whom state law prohibits from asserting the very claim at issue here,” Beetlestone said. “Because class members from various states cannot assert no-injury medical monitoring claims, common issues do not predominate across the proposed nationwide class.”
According to the plaintiffs, Elmiron, which is a medication used to treat chronic bladder infection called interstitial cystitis, causes vision problems.
About 80 suits have been filed over the drug, with most cases in either Pennsylvania and New Jersey, which is the headquarters of the defendant Janssen Pharmaceuticals and its parent company, Johnson & Johnson. Some law firms additionally have hundreds of potential cases waiting in the wings, and have been sparring in recent weeks over whether the cases should be litigated as a multi-district litigation in either Pennsylvania or New Jersey federal court.
The case that Beetlestone ruled on Nov. 6 involved claimants who have not yet suffered any vision problems as a result of the medication, but were instead seeking to have the defendants pay for medical monitoring of their condition. According to Beetlestone, the plaintiffs alleged that the defendants failed to do adequate testing of the medication, and are also seeking a declaratory judgment that Elmiron is defective and unsafe for its intended use. Along with proposing a nationwide class action, the complaint also proposed a Pennsylvania class action and an Illinois class action.
In making their case, the plaintiffs cited the 2018 Pennsylvania Supreme Court ruling Danganan v. Guardian Protection Services, arguing the ruling meant that out-of-state plaintiffs can bring claims under Pennsylvania law when suing a Pennsylvania-based defendant.
Beetlestone, however, said a closer reading of the case showed that courts must conduct a choice-of-law analysis for out-of-state plaintiffs suing Pennsylvania defendants. Under that analysis, she said, the class action could not be certified on a nationwide basis.
Specifically, Beetlestone noted that states including Illinois and New Jersey have expressly refused to recognize common law claims for medical monitoring without a physical injury, and other states have struck other paths on the issue—like Nevada, which holds that medical monitoring can be a remedy but not a cause of action.
Beetlestone also said there were no allegations in the complaint about Pennsylvania-specific conduct by the defendants, but regardless, she said, the law of the state where the plaintiff was injured—or where they were prescribed and took the medication—should apply.
“Applying the law of other states that do not recognize medical monitoring claims would impair Pennsylvania’s interest in deterring Pennsylvania corporations from exposing persons to harmful substances, while impairing other states’ interest in avoiding the ‘inequitable diversion of money away from those who have actually sustained an injury,’” Beetlestone said.
Neither Sol Weiss of Anapol Weiss, who is representing the plaintiffs, nor Chanda Miller of Faegre Drinker Biddle & Reath, who is representing Janssen, returned a call seeking comment.