Opinion
No. ED 86616
April 18, 2006
Appeal from the Circuit Court of the City of St. Louis Hon. Michael P. David.
Andrew Rothschild, St. Louis, MO, for respondent.
Kevin S. Hannon, Denver, CO, Robert F. Ritter, St. Louis, MO, Edward D. Robertson, Jr., Jefferson City, MO, Attorneys for Appellant.
Lani Meyer, by and through her next friend, Rebecca Coplin ("plaintiff"), appeals from the order of the trial court denying class certification for a purported class of children for a claim for medical monitoring based on exposure to lead and other chemicals due to the operations of several companies running the Doe Run lead smelter in the area of Herculaneum, Missouri, over a period of years. Finding no error, we affirm.
The defendants in this case are: The Doe Run Resources Corporation; Homestake Lead Company of Missouri; D.R. Acquisition Corporation; Ira L. Rennert; The Renco Group, Inc.; Marvin R. Kaiser; Fluor Corporation; Doe Run Investment Holding Corporation; A.T. Massey Coal Company; and Leslie G. McCraw, collectively referred to hereafter as "defendants."
Defendants are associated with the operations of the Doe Run lead smelter in Herculaneum. The operation of the lead smelter allegedly has contributed to higher levels of lead and other chemical by-products of smelting than would normally be found in Herculaneum and its environs. The ingestion of lead can cause medical problems, especially in young children. Currently free blood testing is offered to anyone in the Herculaneum area, and this is an accepted method of medical screening for lead levels.
Plaintiff filed a petition, subsequently amended twice, asserting that she is a member of a class, consisting of children who have been exposed to toxins produced by the smelter over a period of time, in some cases in utero, who potentially might suffer injury from the by-products of the smelter. Plaintiff, as the purported class representative, sought monetary damages to establish and operate a medical monitoring program for the children of the class, but not equitable relief to establish such a monitoring program. Plaintiff also contends that she has suffered actual injury from the by-products of the smelter. Plaintiff filed a motion for class certification on August 27, 2004, seeking certification under Rule 52.08(b)(3). The trial court held an evidentiary hearing on this motion on November 15 and 16, 2004, at which plaintiff and defendants presented evidence.
The trial court issued an order denying class certification on June 30, 2005. It found that the numerosity requirement of Rule 52.08(a)(1), namely that joinder is impracticable, was met by the action filed by plaintiff. The trial court did not make specific findings regarding the "commonality" and "typicality" requirements of Rule 52.08(a), though it did discuss them in general. Rather, it noted that even if it found that plaintiffs met the commonality and typicality requirements, it would still have to determine, pursuant to Rule 52.08(b), whether a class action is the appropriate method to resolve the claims in the case. The trial court observed that Rule 52.08(b)(3) requires that the common questions of a would-be class action must predominate over any individualized issues, and noted that this is a more stringent test than the "commonality" requirement of Rule 52.08(a)(2), citing Amchem Products, Inc. v. Windsor, 521 U.S. 591, 609, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). The trial court found that
[I]ndividual issues will necessarily predominate over common issues in this case. These issues include the age at which exposure occurred, the nature of the exposure, the time period over which the exposure occurred, the blood lead level, the existence of other sources such as lead paint for any presence of lead, whether the individuals are presently suffering from any lead related injuries, whether the individuals are still being exposed or whether such exposure terminated, if the exposure to lead in Herculaneum has terminated how long ago it terminated, and whether there is any need for a particular individual to be monitored.
The trial court stated its belief that Rule 52.08(b)(3) was not satisfied because there is a need for individual proof rather than common proof, citing In re "Agent Orange" Product Liability Litigation, 818 F.2d 145, 165 (2nd Cir. 1987), andOwner-Operator Indep. Drivers Ass'n v. New Prime, 213 F.R.D. 537, 547 (W.D. Mo. 2002). The trial court also stated its belief that this case could not be efficiently addressed on a class-wide basis due to the "predominance of individualized issues[.]" It ordered that plaintiff's motion for class certification be denied.
Plaintiff filed a petition for permission to appeal on July 20, 2005. This Court granted plaintiff permission to appeal on September 7, 2005, and accordingly, plaintiff now appeals from the trial court's order denying her motion for class certification.
In her sole point relied on, plaintiff contends that the trial court erred in denying class certification because it required present physical injury as an element of medical monitoring in that Missouri law "does not now and ought not to require present physical injury as an element of a medical monitoring cause of action."
The determination of class certification under Rule 52.08 is within the sound discretion of the trial court. Union Planters Bank, N.A. v. Kendrick, 142 S.W.3d 729, 735 (Mo. banc 2004);State ex rel. American Family Ins. v. Clark, 106 S.W.3d 483, 486 (Mo. banc 2003). This Court reviews an order denying or granting class certification under Rule 52.08 solely for abuse of discretion. Koger v. Hartford Life Ins. Co., 28 S.W.3d 405, 410 (Mo.App. 2000). Because Rule 52.08 and Fed.R.Civ.P. 23 are identical, this Court may consider federal interpretations of Rule 23 in interpreting Rule 52.08. Union Planters Bank, 142 S.W.3d at 735 n. 5; Koehr v. Emmons, 55 S.W.3d 859, 864 n. 7 (Mo.App. 2001).
Rule 52.08 is a procedural rule rather than a substantive one.Charles v. Spradling, 524 S.W.2d 820, 824 (Mo. banc 1975). The trial court lacks the authority to conduct a preliminary inquiry into the merits of a lawsuit when it is determining whether or not to certify the lawsuit as a class action, for the issue is whether or not the plaintiff has met the requirements for a class action, not if the plaintiff has stated a cause of action or ought to prevail on the merits. Eisen v. Carlisle Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 2152, 40 L.Ed.2d 732 (1974);Reinhold v. Fee Fee Trunk Sewer, Inc., 664 S.W.2d 599, 602 (Mo.App. 1984).
Class actions are designed to promote judicial economy by permitting the litigation of common questions of law and fact of numerous individuals in a single proceeding. Union Planters Bank, 142 S.W.3d at 735. Under Rule 52.08(a), a class action, at a bare minimum, requires that: (1) the class be so numerous that joinder of all members is impracticable, (2) questions of law or fact common to the class exist, (3) the claims of the representative parties are typical of the claims of the class, and (4) the representative parties will fairly and adequately protect the interests of the class." Clark, 106 S.W.3d at 486. These prerequisites are mandatory for a class action, and class certification is proper only if each listed element is met. Id.
In addition to the prerequisites of Rule 52.08(a), a class must additionally satisfy one of the three requirements of Rule 52.08(b) in order to maintain a class action. Id. Plaintiff's motion for class certification indicates that she seeks class certification under Rule 52.08(b)(3). A class action may be maintained under that section if
[T]he court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include:
(A) the interest of members of the class in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum;
(D) the difficulties likely to be encountered in the management of a class action.
Rule 52.08(b)(3). The party that seeks class action certification bears the burden of proof. Coleman v. Watt, 40 F.3d 255, 258 (8th Cir. 1994); see also Grosser v. Kandel-Iken Builders, Inc., 647 S.W.2d 911, 917-18 (Mo.App. 1983).
Defendants contend that the plaintiff's point relied on is without merit, as the trial court did not indicate in its order of June 30, 2005 that it based its decision to deny plaintiff's motion for class certification on the ground that Missouri law requires a present injury as a precondition for a suit for medical monitoring. The trial court in fact found that individual issues would predominate over common ones, though it did state that one of the individual issues would be "whether the individuals are presently suffering from any lead related injuries[.]" On its face, plaintiff's point relied on seemingly lacks merit, and this appeal could be resolved by denying it on that ground.
Plaintiff's basis for its argument seems to be the trial court's reliance on two cases, In re "Agent Orange", 818 F.2d at 165 and Indep. Drivers' Ass'n, 213 F.R.D. at 547, which were not cases involving a class action claim for medical monitoring, but involved actual "damages." Essentially plaintiff develops in her argument the idea that the trial court's determination was based, implicitly because of the citations to those cases, on an incorrect interpretation of Missouri law, hence its determination that individual issues predominate over class issues is incorrect. This Court need not consider arguments that are not raised in the point relied on. Rule 84.04(e); Eltiste v. Ford Motor Company, 167 S.W.3d 742, 750 (Mo.App. 2005). Nevertheless, we will review this issue ex gratia.
Plaintiff asserts that Missouri does not require that there be a present injury to have a claim for medical monitoring, citingElam v. Alcolac, Inc, 765 S.W.2d 42, 208-09 (Mo.App. 1983). Defendants contend that Missouri does require a present injury for a claim for medical monitoring, citing Thomas v. FAG Bearings Corporation, Inc., 846 F.Supp. 1400, 1410 (W.D. Mo. 1994). The trial court in Elam, 765 S.W.2d at 208-09, did not state that present injury was or was not required for a medical monitoring claim, but merely that medical surveillance was a separate element of damage. The district court's opinion inThomas is not binding precedent on Missouri state courts. In addition, the district court's finding that a claim for future medical monitoring requires proof of actual present injury as well as an increased risk of future harm rests on two federal court opinions from other jurisdictions. Thomas, 846 F.Sup. at 1410. We need not decide whether Missouri courts require present injury to sustain an action for medical monitoring or if such an action can proceed in the absence of present injury.
Assuming arguendo that a claim for future medical monitoring does not require present actual injury, the trial court did not misapply or misstate the law. The trial court's analysis reflects its determination that the individual issues relevant to each member of the purported class's exposure to toxic products and to the potential risk of harm predominated over class issues, and that evidence would perforce need to be individual rather than common.
There was testimony and an affidavit from Dr. William Banner, and a report from Dr. William Nassetta that the age at which exposure to lead occurs is significant. The highest level of potential risk of exposure occurs when children have a high level of hand-mouth activity and are mobile, which tends to be after the age of six months. Potential exposure decreases as a child approaches seventy-two months of age, and is also lower at below the age of six months. This is also different from the potential risk to a fetus. Evidence was presented by testimony, affidavits, and expert reports that the levels and types of lead exposure varied considerably from property to property, with different risk levels associated with the nature of the exposure on each property. The sources of lead on each property also varied depending on the location, and included emissions from the smelter, wind-blown slag, haul road spillage, and lead-based paint, which was not banned for residential use until 1978. When and where the potential exposure occurred for each individual affects the potential need for monitoring as well. Theresa Bowers, an environmental consultant who does work on human health risk assessment, exposure analysis, and risk assessment involving metals, prepared an expert report and testified. She stated that since 1990, in two of the four geographic areas of the proposed class for which there are air monitors, the level of lead in the air each quarter has been in compliance with the National Ambient Air Quality Standard ("NAAQS") for lead "most of the time[,]" with only a few periods where the level exceeded the NAAQS. In one area the level of lead in the air never exceeded the NAAQS. In the fourth area nearest the smelter, the level of lead consistently and noticeably exceeded the NAAQS, until 2003, when the lead levels in the air even in the area closest to the smelter has been within the NAAQS. The trial court indicated in its order that it considered the various issues related to exposure to be significant and in which individual issues would predominate over common ones.
Evidence was presented regarding the Center for Disease Control's ("CDC") standards and recommendations for children with elevated blood lead levels and blood lead level tests done in the Herculaneum area in 2002. Few of the children under the age of six had blood lead levels that met the minimum level at which the CDC recommended further testing. For children between ages six and seventeen, 98.4 percent had blood lead levels below the CDC threshold for further testing. Individual blood lead levels are, by definition, individual. Free blood lead level tests are available to residents of Jefferson County. Whether or not any of the proposed class do suffer from a present injury, or are at greatly increased risk of such as shown by blood lead levels is also an individual issue. Plaintiff's expert, Dr. Bruce Lanphear, testified that patients who showed symptoms, or had screening tests indicating reasons for concern would require "next steps." Those who did not have symptoms or test results indicating cause for concern would not require any further action. There was evidence presented that monitoring and appropriate testing, if any, ought to be determined for each individual based on "consideration of many factors, including age, gender, medical and work history and other individual risk factors[.]" There was no evidence of suitable tests for the entire class beyond the free blood level testing already available.
In his testimony, Dr. Lanphear stated that he did not have a detailed protocol of medical monitoring for the proposed class, just "an outline."
The issues detailed by the trial court do not reflect that it considered present injury to be a requirement. Instead the trial court considered what would be relevant to determining how significant the probability was that each individual member of the purported class would incur future injuries as a result of operation of the Doe Run smelter. The trial court also considered the fact that some purported class members had already suffered injuries, and consequently the need for medical monitoring and whether the individual issues or the common ones predominated.
The situation in the present case is somewhat similar to that in Askey v. Occidental Chemical Corporation, 477 N.Y.S.2d 242, 248 (N.Y.App.Div. 1984), in which that court held that
The only fact truly common to the proposed class, as established by the record, is that all of its members live or have lived in an area adjacent to the landfill at some time during the last 30 years. There is no proof whatever of the nature and extent of the contamination which resulted from the various chemicals deposited over the years at the landfill. Consequently, there is no way to determine as a threshold matter the identity of those persons who may need medical monitoring.
Other cases have considered the individual variants relating to possible exposure to a toxic substance to be a significant factor in denying class certification in cases involving medical monitoring, holding that the common questions did not predominate. See Caruso v. Celsius Insulation Resources, Inc., 101 F.R.D. 530, 534-38 (M.D. Pa. 1984) (urea formaldehyde foam insulation); Yandle v. PPG Industries, Inc., 65 F.R.D. 566, 570-72 (E.D. Tex. 1974) (asbestos); Goasdone v. American Cyanimid Corp., 808 A.2d 159, 171-72 (N.J.Super. 2002) (benzidine). Goasdone involved a claim for medical monitoring damages, and did not include a personal injury claim. The appellate court held that
But cf. Boggs v. Divested Atomic Corporation, 141 F.R.D. 58 (S.D. Ohio 1991); In re Three Mile Island Litigation, 87 F.R.D. 433 (M.D. Pa. 1980); In re West Virginia Rezulin Litigation, 585 S.E.2d 52 (W.Va. 2003).
Although it does not include a personal injury claim for damages, the case at hand still involves a predominance of individual issues. If the common issues are resolved in favor of the plaintiffs, a determination will still have to be made with respect to each class member whether that worker is entitled to medical monitoring relief. That decision will turn on a number of factors including whether the person was exposed to the defendants' products, and if so, the nature and duration of that exposure. Exposure to the defendants' products will differ among class members in terms of length of exposure, level of exposure, nature of exposure, and identity of products involved in the exposure. A determination of whether a class member needs medical monitoring beyond that which would otherwise be required will turn on factors involving the medical circumstances of individual class members. Resolution of the defendants' statute of limitations defenses will require fact finding for each class member individually. While the case involves certain common questions, such as the risks presented by exposure to the dyes, the adequacy of the warnings for defendant's products, and general safety factors concerning the products, the individual issues predominate.
Goasdone, 808 A.2d at 171-72. It is essentially a matter of discretion for the trial court to determine whether the individual or common issues predominate given the particular circumstances of each would-be class action.
The trial court did not misapply or misstate the law of Missouri. The principle that it drew from In re "Agent Orange" and Indep. Drivers' Ass'n in making the determination that individualized issues predominate over common class issues is that if individualized evidence about class members is necessary to prove that class members suffered a legal harm, which is what a medical monitoring claim for a class is, then it is highly likely that common questions are subordinate to individual issues. Indep. Drivers' Ass'n does not involve damages in the sense of physical damages, but rather economic damages or harm. The court in that case found that the determination of whether or not a particular member of the class suffered "actual damages," which is an economic injury, and the defenses to such claims, would require the court to get enmeshed in individual issues and proof. In re "Agent Orange" was also not a medical monitoring case. The thrust of the trial court's opinion in that case was that there was not a reasonable certainty that the would-be class members would or did suffer a harm from exposure to "Agent Orange." As the court observed, the potential exposure to the dioxin in "Agent Orange" varied incredibly among the class members, and the studies introduced did not show that exposure at any level was likely to cause an injury, merely the possibility that certain types of exposure might cause harm. In re "Agent Orange", 818 F.2d at 164-65. Implicitly the court found that there was not a reasonable certainty that there would be a harm from all potential levels and types of exposure for the entire class, and that causation for individual class members was tied to the individual's exposure. To have allowed the class certification to stand "would have allowed generic causation to be determined without regard to those characteristics and the individual's exposure." Id. at 165.
The trial court did not misstate or misapply the law in making its determination that individual issues predominate over common ones. It did not abuse its discretion in denying the motion for class certification. Point denied.
The order of the trial court is affirmed. Mary K. Hoff, P.J., concurs.
Defendants' motion to supplement the record on appeal is denied.
Patricia L. Cohen, J., concurs.