161 F.3d 127 (3rd Cir. 1998), 97-1844, Barnes v. American Tobacco Co.

Docket Nº:97-1844.
Citation:161 F.3d 127
Party Name:William BARNES; Ciaran McNally; Catherine Potts; Norma Rodweller; Barbara Salzman; Edward Slivak; John Teagle, on Behalf of Themselves and all others Similarly Situated v. THE AMERICAN TOBACCO COMPANY; American Brands, Inc.; R.J. Reynolds Tobacco Company; RJR Nabisco, Inc.; Brown & Williamson Tobacco Corporation; Batus, Inc.; Batus Holdings, Inc.;
Case Date:November 12, 1998
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 127

161 F.3d 127 (3rd Cir. 1998)

William BARNES; Ciaran McNally; Catherine Potts; Norma

Rodweller; Barbara Salzman; Edward Slivak; John

Teagle, on Behalf of Themselves and all

others Similarly Situated

v.

THE AMERICAN TOBACCO COMPANY; American Brands, Inc.; R.J.

Reynolds Tobacco Company; RJR Nabisco, Inc.; Brown &

Williamson Tobacco Corporation; Batus, Inc.; Batus

Holdings, Inc.; B.A.T. Industries, P.L.C.; Philip Morris,

Inc.; Philip Morris Companies, Inc.; Lorillard Tobacco

Company, Inc.; Lorillard, Inc.; Loews Corporation; United

States Tobacco Company; UST, Inc.; The Tobacco Institute,

Inc.; The Council For Tobacco Research-U.S.A., Inc.;

Liggett Group, Inc.; Liggett & Myers, Inc.; Brooke Group,

LTD.; Pennsylvania Distributors Association, Inc.; United

Wholesale Tobacco and Candy, d/b/a United Vending Service,

Inc.; British American Tobacco Company William Barnes,

Ciaran McNally, Catherine Potts, Norma Rodweller, Barbara

Salzman and Edward Slivak, on behalf of themselves and all

those similarly situated, Appellants.

No. 97-1844.

United States Court of Appeals, Third Circuit

November 12, 1998

Argued June 4, 1998.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

Page 130

Robert J. LaRocca (Argued), Ryan, Brown, McDonnell, Berger & Gibbons, Philadelphia, PA; Arnold Levin (Argued), Levin, Fishbein, Sedran & Berman, Philadelphia, PA; Dianne M. Nast, Lancaster, PA; Julia W. McInerny, Coale, Cooley, Leitz, McInerny & Broadus, Washington, DC; Gary R. Fine, Rodham & Fine, Fort Lauderdale, FL; Thomas E. Mellon, Jr., Mellon, Webster & Mellon, Doylestown, PA; Stephen A. Sheller, Sheller, Ludwig & Badey, Philadelphia, PA, for Appellants.

Hugh R. Whiting, Jones, Day, Reavis & Pogue, Cleveland, OH; Morton F. Daller, Edward A. Greenberg, Gerhard P. Dietrich, Daller, Greenberg & Dietrich, Fort Washington, PA, for Appellee, R.J. Reynolds Tobacco Company.

Daniel F. Kolb, Anne B. Howe, Davis, Polk & Wardwell, New York City, Morton F. Daller, Edward A. Greenberg, Gerhard P. Dietrich, Daller, Greenberg & Dietrich Valley Green Corporate Center, Fort Washington, PA, for Appellee, RJR Nabisco, Inc.

James L. Griffith, Klett, Lieber, Rooney & Schorling, Philadelphia, PA, Virginia L. Hogben, Wolf, Block, Schorr & Solis-Cohen Packard Building, 1, Philadelphia, PA,Peter S. Greenberg, Schnader, Harrison, Philadelphia, PA, Gary R. Long, Shannon L. Spangler Shook, Hardy & Bacon One, Kansas City, MO, for Appellee, Brown & Williamson Tobacco Corp.

Robert C. Heim, (argued) Jeffrey G. Weil Dechert, Price & Rhoads, Philadelphia, PA, for Appellees, Philip Morris, Inc. and Philip Morris Companies, Inc.

William J. O'Brien, Esquire Howard M. Klein, Conrad, O'Brien, Gellman & Rohn Philadelphia, PA, Gary R. Long, Shannon L. Spangler, Shook, Hardy & Bacon, Kansas City, MO, for Appellees, Lorillard Tobacco Company, Inc. and Lorillard, Inc.

William J. O'Brien, Howard M. Klein, Conrad, O'Brien, Gellman & Rohn, Philadelphia, PA, for Appellee, The Tobacco Institute, Inc.

Patrick W. Kittredge, Gary M. Marek, Kittredge, Donley, Elson, Fullem & Embick, Philadelphia, PA, for Appellee, The Council for Tobacco Research U.S.A., Inc.

J. Kurt Straub (Argued) Obermayer, Rebmann, Maxwell & Hippel, Philadelphia, PA, Attorney for Appellees, Liggett Group, Inc., Liggett & Myers, Inc. and Brooke Group, Ltd.

Before: SCIRICA, NYGAARD and SEITZ, [*] Circuit Judges.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

In this suit against the major American tobacco companies, we must decide whether a medical monitoring class should be certified under Federal Rule of Civil Procedure 23(b)(2). The District Court decertified a proposed class of cigarette smokers on the grounds that significant individual issues precluded certification. After finding the statute of limitations had run with respect to the claims of five named plaintiffs and the sixth had failed to establish the need for medical monitoring, the District Court granted defendants summary judgment. We will affirm the District Court's decertification order and its grant of summary judgment.

I.

FACTS AND PROCEDURAL HISTORY

Named plaintiffs William Barnes, Catherine Potts, Norma Rodweller, Barbara Salzman, Edward J. Slivak, and Ciaran McNally are Pennsylvania residents who began smoking

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cigarettes before the age of 15 and have smoked for many years. Plaintiffs filed suit against the defendant tobacco companies 1 in the Court of Common Pleas of Philadelphia County. Defendants removed to the Eastern District of Pennsylvania, and plaintiffs filed an Amended Complaint asserting claims of intentional exposure to a hazardous substance, negligence, and strict products liability on behalf of a purported class of over one million Pennsylvania cigarette smokers. In their prayer for relief, plaintiffs asked (1) that defendants fund a court-supervised or court approved program providing medical monitoring to class members; (2) for punitive damages to create a fund for common class-wide purposes, including medical research, public education campaigns, and smoking cessation programs; and (3) for other monetary and injunctive relief the court deemed just and proper.

A.

The District Court found the class did not meet the requirements of Rule 23(b)(2) or (b)(3). See Arch v. The American Tobacco Co., 175 F.R.D. 469 (E.D.Pa.1997). The District Court rejected Rule 23(b)(2) certification because plaintiffs had not primarily sought injunctive or equitable relief, finding that "[p]laintiffs' medical monitoring claim is merely a thinly disguised claim for future damages" and that "the overwhelming majority of the relief sought by plaintiffs in their entire complaint is monetary in nature." Id. at 484. The court also found certification improper under Rule 23(b)(3) because issues common to the class did not predominate over plaintiffs' individual issues. In particular, the District Court found individual issues, such as addiction, causation, the need for medical monitoring, and affirmative defenses, made a class action unmanageable and not the superior method for fair and efficient adjudication of the case. Id. at 485-96.

The District Court suggested, however, that plaintiffs' request for a court-supervised program of medical monitoring to detect the latent diseases caused by smoking was the "paradigmatic" request for injunctive relief under a medical monitoring claim. Id. at 484. Specifically, the court stated:

The Court finds that it may properly certify a medical monitoring claim under Rule 23(b)(2) when the plaintiffs seek such specific relief which can be properly characterized as invoking the court's equitable powers. See [Day v. NLO, Inc., 144 F.R.D. 330, 336 (S.D.Ohio 1992), rev'd on other grounds, 5 F.3d 154 (6th Cir.1993) ]; see also Fried v. Sungard Recovery Serv., Inc., 925 F.Supp. 372 (E.D.Pa.1996). In reaching this decision, the Court perforce rejects defendants' argument that a medical monitoring claim can never be characterized as injunctive.

The dispositive factor that must be assessed to determine whether a medical monitoring claim can be certified as a Rule 23(b)(2) class is-what type of relief do plaintiffs actually seek. If plaintiffs seek relief that is a disguised request for compensatory damages, then the medical monitoring claim can only be characterized as a claim for monetary damages. In contrast, if plaintiffs seek the establishment of a court-supervised medical monitoring program through which the class members will receive periodic medical examinations, then plaintiffs' medical monitoring claims can be properly characterized as claim seeking injunctive relief.

In Day, Judge Spiegel cogently articulates the fine distinction between a medical monitoring claim that seeks monetary relief in the form of compensatory damages and a medical monitoring claim that seeks injunctive relief in the form of a court-

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supervised medical monitoring program. Judge Spiegel explains:

Relief in the form of medical monitoring may be by a number of means. First, a court may simply order a defendant to pay a plaintiff a certain sum of money. The plaintiff may or may not choose to use that money to have his medical condition monitored. Second, a court may order the defendants to pay the plaintiffs' medical expenses directly so that a plaintiff may be monitored by the physician of his choice. Neither of these forms of relief constitute injunctive relief as required by Rule 23(b)(2).

However, a court may also establish an elaborate medical monitoring program of its own, managed by court-appointed court-supervised trustees, pursuant to which a plaintiff is monitored by particular physicians and the medical data produced is utilized for group studies. In this situation, a defendant, of course, would finance the program as well as being required by the Court to address issues as they develop during the program administration. Under these circumstances, the relief constitutes injunctive relief as required by Rule 23(b)(2).

Day, 144 F.R.D. at 335-36; see also Fried, 925 F.Supp. at 374 (implying that under medical monitoring case law, a creation of a medical monitoring program would be equitable in nature). Based on Judge Spiegel's insightful distinction, it is apparent that relief requested under a medical monitoring claim can be either injunctive or equitable in nature.

To determine whether the named plaintiffs in this case seek equitable relief under their medical monitoring claim, plaintiffs' specific request for relief under this claim must be closely scrutinized. Plaintiffs seek the establishment of a court-supervised program through which class members would undergo periodic medical examinations in order to promote the early detection of diseases caused by smoking. This portion of plaintiffs' request is the paradigmatic request for...

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452 practice notes
  • 186 F.R.D. 535 (W.D.Wis. 1998), 97-C-0347-C, Insolia v. Philip Morris Inc.
    • United States
    • Federal Cases United States District Courts 7th Circuit Western District of Wisconsin
    • December 16, 1998
    ...which courts have refused to certify state-wide tobacco class action lawsuits in similar fashion. See e.g. Barnes v. American Tobacco Co., 161 F.3d 127 (3d Page 546 Castano v. American Tobacco Co., 84 F.3d 734 (5th Cir.1996); Barreras Ruiz v. American Tobacco Co., 180 F.R.D. 194 (D.P.R.1998......
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    • Federal Cases United States District Courts 3th Circuit Eastern District of Pennsylvania
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    ...or corresponding declaratory relief with respect to the class as a whole." Fed.R.Civ.P. 23(b)(2); Barnes v. American Tobacco Co., 161 F.3d 127, 142 (3d Cir.1998). " [T]his requirement is almost automatically satisfied in actions primarily seeking injunctive relief." Baby Neal......
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    • Federal Cases United States District Courts 9th Circuit Central District of California
    • October 10, 2000
    ...class certification on the ground that the limitations defense made class treatment inappropriate. See Barnes v. The American Tobacco Co., 161 F.3d 127, 149 (3d Cir.1998); Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331, 342 (4th Cir.1998). Many other courts, including some ......
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    • Federal Cases United States District Courts 3th Circuit Eastern District of Pennsylvania
    • October 7, 2002
    ...(E.D.Pa.2001). Moreover, the concepts of commonality and typicality are broadly defined and tend to merge. Barnes v. American Tobacco Co., 161 F.3d 127, 141 (3d Cir.1998), Page 158 Baby Neal v. Casey, 43 F.3d 48, 56 (3d Cir.1994). The typicality requirement is designed to align the interest......
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  • 186 F.R.D. 535 (W.D.Wis. 1998), 97-C-0347-C, Insolia v. Philip Morris Inc.
    • United States
    • Federal Cases United States District Courts 7th Circuit Western District of Wisconsin
    • December 16, 1998
    ...which courts have refused to certify state-wide tobacco class action lawsuits in similar fashion. See e.g. Barnes v. American Tobacco Co., 161 F.3d 127 (3d Page 546 Castano v. American Tobacco Co., 84 F.3d 734 (5th Cir.1996); Barreras Ruiz v. American Tobacco Co., 180 F.R.D. 194 (D.P.R.1998......
  • 192 F.R.D. 176 (E.D.Pa. 2000), Civ. A. 97-5286, Collier v. Montgomery County Housing Authority
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    • Federal Cases United States District Courts 3th Circuit Eastern District of Pennsylvania
    • April 20, 2000
    ...or corresponding declaratory relief with respect to the class as a whole." Fed.R.Civ.P. 23(b)(2); Barnes v. American Tobacco Co., 161 F.3d 127, 142 (3d Cir.1998). " [T]his requirement is almost automatically satisfied in actions primarily seeking injunctive relief." Baby Neal......
  • 197 F.R.D. 404 (C.D.Cal. 2000), CV 97-1554 ABC RCX, O'Connor v. Boeing North American, Inc.
    • United States
    • Federal Cases United States District Courts 9th Circuit Central District of California
    • October 10, 2000
    ...class certification on the ground that the limitations defense made class treatment inappropriate. See Barnes v. The American Tobacco Co., 161 F.3d 127, 149 (3d Cir.1998); Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331, 342 (4th Cir.1998). Many other courts, including some ......
  • 210 F.R.D. 152 (E.D.Pa. 2002), Civ. A. 01-CV-4161, Barabin v. Aramark Corp.
    • United States
    • Federal Cases United States District Courts 3th Circuit Eastern District of Pennsylvania
    • October 7, 2002
    ...(E.D.Pa.2001). Moreover, the concepts of commonality and typicality are broadly defined and tend to merge. Barnes v. American Tobacco Co., 161 F.3d 127, 141 (3d Cir.1998), Page 158 Baby Neal v. Casey, 43 F.3d 48, 56 (3d Cir.1994). The typicality requirement is designed to align the interest......
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  • Court of Appeals Rejects Medical Monitoring Class Action
    • United States
    • JD Supra United States
    • August 31, 2011
    ...727-28 (6th Cir. 2004); Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1195-96, amended, 273 F.3d 1266 (9th Cir. 2001); Barnes, 161 F.3d at 143-46; Boughton v. Cotter Corp., 65 F.3d 823, 827 (10th Cir. 1995). Frequently the rigorous analysis of common and individual issues will enta......
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    ...be a “significant” increased risk, and that monitoring must be likely to actually help cure disease. E.g., Barnes v. American Tobacco Co., 161 F.3d 127 (3d Cir. 1998). It could get even worse. ALI has before it a separate draft of the Third Restatement of Torts that would recognize a medica......
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    ...requirement out of (b)(3) by using (c)(4) to sever issues until the common issues predominate over the individual issues”), aff’d, 161 F.3d 127 (3d Cir. 1998). To this line of cases can now be added the Panacryl decision. The court held, as to Rule 23(c)(4): But Rule 23(c)(4) may not be use......
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    ...situated are faced with is “Goliath versus Goliath.” Arch v. American Tobacco Co., 175 F.R.D. 469, 496 n.28 (E.D. Pa. 1997), aff’d, 161 F.3d 127 (3d Cir. 1998). Our clients — even those perched in the Fortune 500 — are sensitive about cost-containment. Efficiency is the watchword everywhere......
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16 books & journal articles
  • Recognition of "medical monitoring" claims in Florida.
    • United States
    • Florida Bar Journal Vol. 74 Nbr. 11, December 2000
    • December 1, 2000
    ...but upon the time the plaintiff was reasonably aware of the risk generated by the exposure. See, e.g., Barnes v. American Tobacco Co., 161 F.3d 127 (3d Cir. 1998) (acknowledging the vitality of the "discovery rule" which tolls the statute during the time of plaintiffs inability to......
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    • Yale Law Journal Vol. 113 Nbr. 2, November 2003
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    ...as a class action would degenerate in practice into multiple lawsuits separately tried"); see also Barnes v. Am. Tobacco Co., 161 F.3d 127, 143 (3d Cir. 1998) (holding that class certification in tobacco litigation was barred because of individual issues such as addiction, causation, a......
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    ...of Litig.) (2008) (internal citations omitted). 37. Cases often cited in opposing class certification include Barnes v. Am. Tobacco Co., 161 F.3d 127 (3d Cir. 1998); Walker v. Liggett Grp., 175 F.R.D. 226 (S.D.W. Va. 1997); Emig v. Am. Tobacco Co., 184 F.R.D. 379 (D. Kan. 1998); Rink v. Che......
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