Rising up down in Georgia, Bexis used the phrase “an entire lotta nuthin’” incessantly when encountering issues (just like the Seventies Underground Atlanta vacationer entice) or folks (like Lester Maddox, who ruled the identical manner he rode bicycles) that didn’t impress him a lot.  That’s the phrase that got here to thoughts after we learn In re E. I. du Pont de Nemours & Co. C-8 Private Damage Litigation, ___ F.4th ___, 2023 WL 8183812 (sixth Cir. Nov. 27, 2023).  Certainly, the opening sentence of the du Pont opinion was:  “Seldom is so bold a case filed on so slight a foundation.”  Id. at 81.  And sure, du Pont was an enchantment from one more bizarrely pro-plaintiff MDL choice.

The du Pont litigation concerned chemical substances, not prescription medical merchandise.  There, the district court docket spent over 35 printed pages attempting to create one thing out of nothing and licensed a “medical monitoring” class motion that included as members each one who resided within the State of Ohio.  It reached this end result, inter alia, by defining class membership to succeed in any “particular person” with “0.05 components per trillion” of so-called “endlessly chemical substances” (technically, “per- and polyfluoroalkyl substances” (“PFAS”)) of their blood.  Hardwick v. 3M Co., 589 F. Supp.3d 832, 840 (S.D. Ohio 2022), vacated, 2023 WL 8183812 (sixth Cir. Nov. 27, 2023).  Because the Sixth Circuit identified, in its 4-page, however precedential, choice vacating that monstrosity, that “hint quantity” is:  (1) “current within the blood of each particular person residing in the USA” and (2) “orders of magnitude lower than the quantities at present detectable by any testing.”  2023 WL 8183812, at *2.

The would-be class consultant “d[id] not know what corporations manufactured” the merchandise that purportedly uncovered him to PFAS, and “d[id] not know whether or not these specific PFAS have been current” in these merchandise.  Id. at *1.  So he arbitrarily sued “ten defendants” out “of the 1000’s of corporations which have manufactured chemical substances of this common kind.”  Id.  Not surprisingly, the criticism merely lumped all of the defendants collectively, with “each collective . . . and conclusory” allegations.  Id.  On that just about non-existent foundation, the MDL court docket “licensed a category comprising each particular person residing within the State of Ohio − some 11.8 million folks.”  Id.

Within the Sixth Circuit, the MDL choice didn’t even make it to first base.  Not bothering to decertify the category, the appellate court docket ordered the motion dismissed altogether for lack of standing.  To deliver go well with “[p]laintiffs should have suffered an damage.  They have to hint this damage to the defendant.  They usually should present {that a} court docket can redress it.”  Id. at *2 (quotation and citation marks omitted).  {That a} case is “a putative class motion provides nothing to the query of standing.”  Id. (quotation and citation marks omitted).

The du Pont criticism totally flunked – failing on the preliminary component of “traceability.”  First, “standing just isn’t allotted in gross.”  Id. at *3 (quotation and citation marks omitted).  Not solely was your complete criticism pleaded collectively towards “defendants,” however that was additionally how the category was licensed – “referring to the actions of ‘Defendants’ all through.”  Id.  A plaintiff “doesn’t [have] a license to sue anybody over something.”  Id. (quotation and citation marks omitted).  As a result of plaintiff “has not even tried to make that extra particular displaying” towards any of the defendants, he lacked standing as to all of them.  Id.

Second, the entire plaintiff’s allegations have been “conclusory.”  Id.  With 1000’s of various PFAS chemical substances:

To allege merely that these defendants manufactured or in any other case distributed “PFAS,” subsequently, is patently inadequate to assist a believable inference that any of them bear duty for the actual [five] PFAS in [plaintiff’s] blood. But nowhere in his criticism, for instance, did [plaintiff] allege that any of those defendants, a lot much less each considered one of them, manufactured any of these 5 compounds.

du Pont, 2023 WL 8183812, at *3.  Plaintiff “ha[d] not alleged information supporting a believable inference that any of those defendants precipitated these 5 specific PFAS to finish up in his blood.”  Id. at *4.  Nor may he, for the reason that criticism’s collective vagueness was important to hide the inherently individualized nature of the medical monitoring claims within the would-be class motion.  As a result of plaintiff “elides fairly than meets the Supreme Courtroom’s necessities as to pleadings and traceability,” he “lacks standing” and your complete pipe dream of a criticism was dismissed.

What occurred in du Pont is what ought to have occurred to the equally meritless class actions within the Valsartan MDL litigation we criticized right here.

If anybody needs to know why we are so strongly opposed to no-injury medical monitoring as a concept of legal responsibility, look no additional than the du Pont and Valsartan litigations.  Just like the Sixth Circuit in du Pont, we “start and finish, 2023 WL 8183812, at *3, with “medical monitoring” as a automobile for abusive litigation – particularly for creating an entire lotta nuthin’.