Paz v. Brush Engineered Materials, Inc.

• Citation: 949 So.2d 1
• Decision Date: 04 January 2007
• Docket Number: No. 2006-FC-00771-SCT.,2006-FC-00771-SCT.
• Parties: George PAZ and Joseph P. Harris, et al. v. BRUSH ENGINEERED MATERIALS, INC., Brush Wellman, Inc., Wess-Del, Inc. and The Boeing Company.
• Court: United States State Supreme Court of Mississippi

949 So.2d 1

George PAZ and Joseph P. Harris, et al. v. BRUSH ENGINEERED MATERIALS, INC., Brush Wellman, Inc., Wess-Del, Inc. and The Boeing Company.

No. 2006-FC-00771-SCT.

Supreme Court of Mississippi.

January 4, 2007.

Rehearing Denied March 1, 2007.

Ruben Honik, Stephan Matanovic, Robert C. Latham, Natchez, Randall A. Smith, Stephan M. Wiles, attorneys for appellants.

Jeffrey D. Ubersax, Paul H. Stephenson, III, Roy D. Campbell, III, Jackson, Vernon Lee Woolston, Timothy Dale Crawley, Ridgeland, attorneys for appellees.

EN BANC.

SMITH, Chief Justice, for the Court.

¶ 1. Before the Court is a certified question of Mississippi law from the United States Court of Appeals for the Fifth Circuit. See M.R.A.P. 20. Class action plaintiffs have sued defendant corporations for medical monitoring costs for detection of disease development due to beryllium exposure allegedly caused by the negligence of the defendants. The United States District Court for the Southern District of Mississippi granted the defendants' motions to dismiss, finding a failure to state a cause of action with regards to plaintiffs' medical monitoring claim and a lack of personal jurisdiction over two of the defendants. Paz v. Brush Engineered Materials, Inc., 351 F.Supp.2d 580 (S.D.Miss. 2005) (reversed in part and question certified by Paz v. Brush Engineered Materials, Inc., 445 F.3d 809 (5th Cir.2006)). Plaintiffs appealed to the United States Court of Appeals for the Fifth Circuit, and finding that Mississippi law was silent as to the recognition of medical monitoring actions, the Fifth Circuit posed the question to this Court of "[w]hether the laws of Mississippi allow for a medical monitoring cause of action, whereby a plaintiff can recover medical monitoring costs for exposure to a harmful substance without proving current physical injuries from that exposure?" Paz, 445 F.3d at 815.

¶ 2. Plaintiffs, current or previous employees of the John C. Stennis Space Center in Mississippi (Stennis Center) and Canoga Park facility in California (Canoga Park), as well as their family members, sued four corporations. First, Boeing Company is the operator of the Stennis and Canoga Park facilities. Also defending the suit are Brush Engineered Materials, Inc. (BEMI) and its subsidiary Brush Wellman, Inc. (Brush), both of which sold beryllium products used at the Stennis Space Center and Canoga Park facilities to Boeing. Lastly, Wess-Del Inc. is the fabricator of beryllium goods which machined, assembled, fabricated and distributed beryllium-containing goods for use at the Stennis Center.

¶ 3. Plaintiffs claim exposure to beryllium due to the alleged negligence of defendants and seek to recover medical monitoring costs in order to stay abreast of their possible development of Chronic Beryllium Disease, typically a latent disease which impairs the lungs and often causes death. Plaintiffs seek an injunction requiring the defendants to fund a court-supervised medical monitoring program. None of the plaintiffs has suffered physical injury from the alleged exposure.

¶ 4. Plaintiffs appeal from the January 11, 2005, order of the United States District Court for the Southern District of Mississippi granting the Defendants' Motions to Dismiss. One of two grounds for Defendants' motions was failure to state a claim because Mississippi does not recognize a medical monitoring cause of action, and the Fifth Circuit requests that this Court decide that issue. Paz, 445 F.3d at 815. The parties' collective assertions for review can be consolidated into three issues:

I. The State of Common Law Regarding the Recognition of a Medical Monitoring Cause of Action Which Allows Recovery Without a Showing of Physical Damage.

II. The Use of Policy Considerations in Determining Whether to Recognize a Medical Monitoring Cause of Action.

III. The Authority of this Court to Create a Medical Monitoring Cause of Action.

DISCUSSION

I. The State of Common Law Regarding the Recognition of a Medical Monitoring Cause of Action Which Allows Recovery Without a Showing of Physical Damage Mississippi Law

¶ 5. Plaintiffs contend that recognition of a medical monitoring action is in accordance with Mississippi law; however, the decisions of this Court do not support that contention. "To prevail on a negligence claim, a plaintiff must establish by a preponderance of the evidence each of the elements of negligence: duty, breach, causation and injury." Miss. Dep't of Mental Health v. Hall, 936 So.2d 917, 922 (Miss. 2006). Creating a medical monitoring action would be contrary to Mississippi common law, which does not allow recovery for negligence without showing an identifiable injury, and, further, strongly indicates that a claim for medical monitoring, as Plaintiffs present it, lacks an injury.

¶ 6. Plaintiffs claim they should be able to recover damages in the form of medical monitoring costs solely on the basis that they have been exposed to harmful levels of beryllium and are in danger of suffering from latent diseases. Plaintiffs cite Leaf River Forest Products, Inc. v. Ferguson, 662 So.2d 648 (Miss.1995), an emotional distress case, for the proposition that Mississippi previously recognized a similar tort cause of action without present physical injury. Defendants contend that Ferguson, in fact, requires an actual, present injury.

¶ 7. As it pertains here, the law supports Defendants. In Ferguson, this Court held that proof of an injury is required in negligence cases. Id. at 650, 657-58. In Ferguson the Court listed two circumstances under which recovery for emotional distress without physical injury is allowed. Both require the presence of an injury, with the only distinction being the additional element of proof required.

¶ 8. The first involves a claim of outrageous conduct. "[W]here there is something about the defendant's conduct which evokes outrage or revulsion, done intentionally — or even unintentionally yet the results being foreseeable — Courts can in certain circumstances comfortably assess damages for mental and emotional stress, even though there has been no physical injury." Id. at 658. "In such instances, it is the nature of the act itself — as opposed to the seriousness of the consequences — which gives impetus to legal redress. Id.

¶ 9. The first instance does not lack an injury requirement but recognizes that "injury" is not restricted to physical injury, also encompassing mental and emotional injuries as compensable. Some "consequence" of the defendants' actions must be shown; however, in cases of outrageous conduct the primary consideration for redress is not the consequence, i.e., the injury, but, rather, an additional element of proof, the defendant's outrageous conduct. Accordingly, recovery in emotional distress cases is possible without a physical injury. Beyond evidence of emotional distress, which is the injury, the plaintiff must show that the defendant's conduct was willful, wanton, malicious, outrageous or intentional. Adams v. U.S. Homecrafters, Inc. 744 So.2d 736, 743 (Miss.1999); Sears, Roebuck & Co. v. Devers, 405 So.2d 898, 902 (Miss. 1981). Here, the Plaintiffs' pleadings and briefs lack allegations or arguments suggesting willful, wanton, malicious, outrageous or intentional conduct by defendants,¹ thereby eliminating this category and leaving for analysis the second instance in which recovery is allowed for emotional distress without physical injury.

¶ 10. In the second instance, tort recovery is allowed "[e]ven in the absence of physical injury accompanying the negligent conduct, if there is a resulting physical illness or assault upon the mind, personality or nervous system of the plaintiff which is medically cognizable and which requires or necessitates treatment by the medical profession." Ferguson, 662 So.2d at 658. The test of reasonable foreseeability must also be met. Id.

¶ 11. Presenting no allegations of outrageous conduct, this case involves a claim of simple negligence as in this second instance. Again, though no physical injury is required, the person claiming emotional distress must prove that he has incurred a mental or emotional injury. The additional proof in this instance beyond showing an injury is that the injury is medically cognizable and treatable. In such a case of ordinary negligence a plaintiff may not recover damages for emotional distress without showing a physical manifestation of injury or demonstrable harm. See Summers ex rel. Dawson v. St. Andrew's Episcopal Sch., Inc., 759 So.2d 1203, 1211 (Miss.2000) (holding that where there is ordinary negligence, there must be demonstrative harm); Wilson v. Gen. Motors Acceptance Corp., 883 So.2d 56, 65 (Miss.2004) (same); Ill. Cent. R.R. v. Hawkins, 830 So.2d 1162, 1174 (Miss.2002) (same); Am. Bankers' Ins. Co. of Fla. v. Wells, 819 So.2d 1196, 1209 (Miss.2001) (same).

¶ 12. Ferguson does not, as Plaintiffs suggest, lead to the logical inference that this Court would recognize a medical monitoring action, whereby the plaintiffs need not show an injury. Similarly, as for the conclusion in Ferguson, this Court reversed the trial court award of damages for emotional distress allegedly caused by a fear of future illness since manifestation of physical illness or scientific support for the emotional injury is required before recovery is allowed. 662 So.2d at 650. Further, as noted in Ferguson, "this Court has never allowed or affirmed a claim of emotional distress based [solely] on a fear of contracting a disease or illness in the future, however reasonable." Id. at 658.

¶ 13. Though plaintiffs analogize emotional distress actions to medical monitoring actions, the two claims are not analogous. One element of an emotional distress action is that the victim have suffered some injury. Hawkins, 830 So.2d at 1174. Yet, a medical monitoring cause of action, as Plaintiffs present it, would not require an injury be proven. Thus, this Court rejects the argument that...