The Third Circuit has decided Gates v. Rohm & Haas Co., No. 10-2108, slip op. (3d Cir. Aug. 25, 2011). Although not a pharmaceutical case, it's something our readers would want to know about. Gates was decided under Pennsylvania law - somewhat bizarre because the contamination occurred in Illinois. It pretty much kills medical monitoring class actions except possibly in single-event contamination episodes - and thus takes medical monitoring class actions effectively off the table in pharma mass tort actions. The court refuses to allow plaintiffs to use statistical analyses to gloss over individual differences in terms of length, amount, and seriousness of exposure.

“Plaintiffs cannot substitute evidence of exposure of actual class members with evidence of hypothetical, composite persons in order to gain class certification. . . . The evidence here is not “common” because it is not shared by all (possibly even most) individuals in the class. Averages or community-wide estimations would not be probative of any individual?s claim because any one class member may have an exposure level well above or below the average. Attempts to meet the burden of proof using modeling and assumptions that do not reflect the individual characteristics of class members have been met with skepticism.”