The opioid MDL court (the Northern District of Ohio) recently denied class certification to plaintiffs seeking class certification as guardians of individual children diagnosed at birth with neonatal abstinence syndrome (NAS). The court noted that these children are sometimes referred to colloquially as “NAS babies.”
The primary basis for the court’s denial of class certification was its determination that the proposed class failed the test of ascertainability as required by binding Sixth Circuit precedent for Rule 23(b)(3) classes. Notably, the court applied the ascertainability test to both the Rule 23(b)(2) and Rule 23(b)(3) proposed classes, explaining that the distinction set forth by the Sixth Circuit “rested largely on the proposition that, to carry out the specific injunctive remedy requested, the members of the 23(b)(2) injunctive class did not need to receive notice or even be identified,” whereas “here, each Guardian class member must be identified in order to obtain the requested injunctive relief of enrolling their child in a medical monitoring plan.”
The court concluded that the class could not be ascertainable “where class membership is even modestly in flux over a long period of time.” That concern was implicated here because legal guardianship is not a fixed attribute. “An individual who is a guardian at the time the class is certified may no longer have guardianship over the child upon resolution of the case.” And, “[c]onversely, another individual may not be a legal guardian, and thus, not a class member, but may later become one during the pendency of the litigation.”
The problems posed by indefinite class membership were exacerbated by the relief sought by the plaintiffs. In particular, they sought “ongoing medical monitoring, testing, intervention, provision of caregiver training and information, and medical referral … and all future medical care reasonably necessary to treat these children.” The court noted that “[t]his request implicates a shifting class membership for a period of many years, perhaps decades.” The court concluded that “ascertaining over a period of years which individuals are the legal guardians of NAS Babies will present difficult and infeasible administrative hurdles. These hurdles translate to an insufficiently ascertainable composition of class membership.”
The court recognized that it could have stopped here in its analysis because the plaintiffs failed “to offer a class definition that is sufficiently ascertainable and administratively feasible,” but it chose to address some additional issues as well. Two of those are particularly interesting.
First, the court found that the plaintiffs waived their request for the certification of an issues class “under a combination of Rule 23(c)(4) and Rule 23(b)(3).” The request was made for the first time in the plaintiffs’ reply brief. The court said that it would not have granted the request had it been timely requested. It repeated the earlier warning by other courts that “a court must not ‘manufacture’ adherence to the requirements of Rule 23 ‘through the nimble use of subdivision (c)(4).’”
Second, the court refused to certify the class only to give the plaintiffs a seat at the table, so to speak. The plaintiffs argued that “the MDL Plaintiffs Executive Committee (PEC) is ignoring the interests of the NAS Guardian Plaintiffs.” Specifically, the plaintiffs argued that the PEC “devoted themselves solely to the pursuit of the cities’ and counties’ interests and have ignored the conflicting interests of non-clients, including the Guardians and the NAS children.” The court flatly rejected this suggestion as follows:
It almost need not even be said that ensuring the Guardians will receive a share of possible settlement funds from Defendants, and providing the Guardians leverage in settlement negotiations, are not valid bases for certifying a litigation class. These considerations have no place in the analysis of, and certainly do not obviate, the requirements of Rule 23. Moreover, as the Plaintiff Guardians acknowledge, the PEC and the Plaintiff cities and counties cannot release the Guardians’ claims. While the Guardians may prefer class status, they do not need to operate as a class in order to maintain their claims. And as long as their claims remain, the Guardians can pursue them as MDL Case Management Orders allow, and the Guardians can engage in settlement negotiations through or alongside the PEC. The same is true for all MDL Plaintiffs.
The court concluded by acknowledging that, “[in] some cases, the harms these children suffered may be serious and lifelong, forcing the guardians of these children to shoulder a tremendous and continuing burden,” but that in the end “the law does not permit these guardians to pursue claims against the Defendants and seek relief as a class under Rule 23.”
On February 16, 2021, the plaintiffs moved for reconsideration of the court’s order. That motion is still pending as of the date of this posting.