I am always amused by the manner in which class action lawyers attempt to capitalize on current events and public fears in bringing a “cutting edge” lawsuit that will garner a great amount of media attention. Although the Ebola headlines are giving way to the election news, last week, the first Ebola related class action lawsuit was filed, presumably based in part on hopes to ride the wave of public attention on this health crisis. More on the lawsuit here and here.

shutterstock_110965367The complaint filed in U.S. District Court in Los Angeles, seeks $500 million in damages for allegedly defective surgical gowns worn by surgeons in operating rooms. See Shahinian v. Kimberly-Clark Corp., 14-cv-08390, U.S. District Court, Central District of California (Los Angeles). I’ve read the Complaint (linked above) and find the most curious part the utter lack of any real injury to the named plaintiff or the class. All cases filed in federal court must have an injury in fact because, under Article III of the U.S. Constitution, courts can only hear real controversies brought by plaintiffs with real standing. Although the premise of the lawsuit is that the named plaintiff, an accomplished surgeon, could contract the Ebola virus from wearing the allegedly defective surgical gown in the operating room, there are no allegations that this has actually happened.  The class definition, which is found at Paragraph 31(a) is:  “All purchasers and users, including entities and natural persons in California, who purchased or used the High Performance Gowns from 2011 to the present (the ‘California Injunctive Relieve Subclass’).” One typically sees embedded in a class definition some qualifier that points to the class all suffering from some sort of injury. It is thus the “fear” of this injury, not a rshutterstock_210071419eal injury that purportedly gives him standing. That is surely where the initial fight will be in this lawsuit. Does the mere purchase of “defective” surgical gowns (economic injury) suffice or must there be further injury in the form of an infection?  This will be an interesting case to watch unfold.

In the meantime, unless I missed another filing in another state, California once again takes the prize for the very first Ebola-based class action lawsuit!

Author: Kent Schmidt

As a Partner in the Southern California office, Kent practices in virtually all types of general business litigation, with an emphasis in unfair business practices, First Amendment litigation, defamation, trade secret litigation, class actions, product liability, securities litigation and enforcement, commercial disputes, employment law, intellectual property and Prop 65 (environmental) claims. He is an aggressive and creative courtroom advocate, representing both plaintiffs and defendants. Having spent his entire legal career at Dorsey, Kent is adept at finding the right lawyers in the firm to collaborate with in order to provide the best representation for his clients.