Badillo v. American Brands, Inc.
| Citation | 16 P.3d 435,117 Nev. 34 |
| Decision Date | 30 January 2001 |
| Docket Number | No. 34300.,34300. |
| Court | Supreme Court of Nevada |
| Parties | Antonio BADILLO, Thomas Franklin, Jack M. Lipsman, Debra K. Otting, Robert Tassiello, Regina Basilio, Robert Murphy, James A. Dilullo, Dennis Honeywell, Vito Dienno, Martin N. Halnan, V. Arlene Christensen, William Joseph, Kimberly Bosley, Norman Selcer, Anne Selcer, Clara Virga, Loretta Brown, Bradley Doud, and Earl Wittig, Appellants, v. AMERICAN BRANDS, INC., American Tobacco Company, B.A.T. Industries, P.L.C., Batus Holdings, Inc., Batus Tobacco Services, Inc., Bgls, Inc., British American Tobacco Company, Ltd., Brown & Williamson Tobacco Corporation, Brooke Group Ltd., Dosal Tobacco Corporation, Liggett Group, Inc., Liggett & Myers, Inc., Loews Corporation, Lorillard, Inc., Lorillard Tobacco Company, National Association of Tobacco Distributors, Philip Morris, Inc., Philip Morris Companies, Inc., Philip Morris International, Inc., Philip Morris Marketing SA, Philip Morris Products, Inc., R.J. Reynolds Tobacco Company, RJR Nabisco, Inc., RJR Nabisco Holdings Corporation, the Council for Tobacco Research-U.S.A., Inc., The Tobacco Institute, Inc., Tobacco Institute, Inc., Tobacco Merchants Association of the United States, United States Tobacco Company, and UST, Inc., Respondents. |
Beckley Singleton Jemison Cobeaga & List and Daniel F. Polsenberg and Beau Sterling, Las Vegas, for Appellants.
Edwards & Winterton, Chtd., and Nicholas A. Boylan, Las Vegas; Gerard & Associates, Las Vegas; Humphrey, Farrington & McClain, P.C., and John F. Edgar and Gregory Leyh, Independence, Missouri, for Appellants Selcer, Virga, Brown, Doud, Wittig, DiEnno and Halnan.
LoBello & LoBello, Las Vegas; Blumenthal, Ostroff & Markham, La Jolla, California; Chavez & Gertler LLP, Mill Valley, California, for Appellants Christensen, Joseph and Bosley.
Ross Law Chartered, Carson City; Peter L. Flangas, Las Vegas; Murray Law Firm and Perry M. Nicosia, New Orleans, Louisiana; The Godfrey Firm and Patrick M. Files, New Orleans, Louisiana, for Appellants Badillo, Franklin, Lipsman, Otting, Tassiello, Basilio, Murphy, Dilullo and Honeywell.
Backus & Associates, Ltd., Las Vegas; Simpson Thatcher & Bartlett, New York City, for Respondent B.A.T. Industries, P.L.C.
Burton Bartlett & Glogovac, Reno, for Respondents Lorillard Tobacco Company and Lorillard, Inc.
Dickerson, Dickerson, Consul & Pocker and Douglass A. Mitchell, Las Vegas; Debevoise & Plimpton, New York City; Bryan Cave, Overland Park, Kansas, and Phoenix, Arizona, for Respondent The Council for Tobacco Research-U.S.A., Inc.
Guild Russell Gallagher & Fuller, Reno; Kasowitz, Benson, Torres & Friedman, LLP, New York City, for Respondents Brooke Group Ltd., Liggett Group, Inc., Liggett & Myers, Inc., and BGLS, Inc.
Hunterton & Associates, Las Vegas; Skadden, Arps, Slate, Meagher & Flom LLP, New York City, for Respondents United States Tobacco Company and UST, Inc.
Hutchison & Steffen, Las Vegas; Chadbourne & Parke LLP, Los Angeles, California, for Respondent British American Tobacco Company, Ltd.
Jones Vargas and Gary R. Goodheart, Las Vegas; Covington & Burling, Washington, D.C., for Respondents The Tobacco Institute, Inc., and Tobacco Merchants Association of the United States.
Kummer Kaempfer Bonner & Renshaw, Las Vegas, for Respondents Loews Corporation, Lorillard Tobacco Company and Lorillard, Inc.
Lionel Sawyer & Collins and Dennis L. Kennedy and David N. Frederick, Las Vegas; Davis Polk & Wardwell, New York City, for Respondents R.J. Reynolds Tobacco Company, RJR Nabisco, Inc., RJR Nabisco Holdings Corporation, Brown & Williamson Tobacco Corporation, American Tobacco Company, American Brands, Inc., BATUS Holdings, Inc., and BATUS Tobacco Services, Inc.
Schreck Morris, Las Vegas; Shook Hardy & Bacon L.L.P., Kansas City, Missouri; Heller Ehrman White & McAuliffe LLP and Anna S. McLean, San Francisco, California, for Respondents Philip Morris, Inc., and Philip Morris Companies, Inc.
Martinez & Gutierrez, Miami, Florida, for Respondent Dosal Tobacco Corporation.
Sedgwick, Detert, Moran & Arnold, San Francisco, California, for Respondents Brown & Williamson Tobacco Corporation, BATUS Holdings, Inc., BATUS Tobacco Services, Inc., and American Tobacco Company.
Womble Carlyle Sandridge & Rice, Winston-Salem, North Carolina; Jones Day Reavis & Pogue, Los Angeles, California; Cleveland, Ohio; and Dallas, Texas, for Respondent R.J. Reynolds Tobacco Company.
Chester H. Adams, City Attorney, Sparks, for Amicus Curiae City of Sparks.
Lefebvre, Barron & Vivone, Chtd., and Andrew Craner, Las Vegas, for Amici Curiae American Gaming Association, Nevada Association of Employers, Nevada Resort Association, Nevada Self-Insurers Association, Reno-Sparks Chamber of Commerce, and Retail Association of America.
McDonald Carano Wilson McCune Bergin Frankovich & Hicks LLP, Reno, for Amicus Curiae Associated General Contractors.
McMullen Strategic Group, Reno, for Amicus Curiae Las Vegas Chamber of Commerce.
Perry & Spann, Reno; Crowell & Moring LLP and Victor E. Schwartz, Mark A. Behrens and Emma K. Burton, Washington, D.C., for Amici Curiae Product Liability Advisory Council, Inc., and American Tort Reform Association.
William E. Peterson, Senior Vice President and General Counsel, for Amicus Curiae Sierra Pacific Resources.
Piscevich & Fenner, Reno, for Amici Curiae Builder's Association of Northern Nevada, DR Partners, Economic Development Authority of Western Nevada, Nevada Development Authority, Nevada Farm Bureau, Nevada Franchised Auto Dealers Association, Nevada Manufacturer's Association, Nevada Mining Association, Nevada Petroleum Marketers & Convenience Store Association, Terrible Herbst, Inc., and U-Haul Company of Nevada.
BEFORE THE COURT EN BANC.
This case comes to the court in the form of certified questions from the United States District Court for the District of Nevada. The federal district court requested that we issue an opinion stating Nevada law with respect to the following two questions: (1) whether Nevada common law recognizes a medical monitoring cause of action or remedy where medical testing facilitates the detection of diseases resulting from exposure to a toxic substance; and (2) if Nevada common law recognizes a medical monitoring cause of action or remedy, what elements must a plaintiff prove to be entitled to medical monitoring. We conclude that Nevada common law does not recognize a medical monitoring cause of action but the remedy of medical monitoring may be available. The elements necessary for a medical monitoring remedy may depend upon the cause of action for which the medical monitoring is a remedy. The parties have not meaningfully briefed the issue and therefore we decline to decide it.
Appellants are plaintiffs in four potential classes who brought class action suits against seven parent corporations, six current or former cigarette manufacturers, nine affiliated corporations, one trade association, and one research-funding organization, seeking, among other things, the establishment of a court-supervised medical monitoring program to aid in the early diagnosis and treatment of tobacco-related illnesses. In one of the four cases, the named plaintiff and proposed class members are smokers. In the other three cases, the plaintiffs and proposed class members are casino employees (both nonsmokers and former smokers) who claim exposure to environmental or secondhand tobacco smoke at work. The federal district court consolidated the casino employee cases under Badillo.
All four actions are at an early stage. Discovery has been confined to class certification issues with motions for class certification pending in the three casino employee cases. Appellants assert various claims against the defendant tobacco companies, including strict liability, negligence, fraud, and misrepresentation. Appellants seek medical monitoring to detect whether they have any diseases as a result of their exposure to cigarette smoke. The federal district court determined that class certification of appellants for medical monitoring hinges on whether medical monitoring is a viable cause of action or a viable remedy under Nevada law.
Noting no controlling precedent in Nevada law for the viability of medical monitoring as a claim or a remedy, the federal district court on its own motion requested that this court answer the following two questions of law pursuant to NRAP 5:(1) whether Nevada common law recognizes a medical monitoring cause of action or remedy where medical testing facilitates the detection of diseases resulting from exposure to a toxic substance; and (2) if Nevada common law recognizes a medical monitoring cause of action or remedy, what elements must a plaintiff prove to be entitled to medical monitoring.
The tort system attempts to accomplish the goals of compensation, allocation of cost, and deterrence. See Diane P. Wood, Commentary on the Futures Problem, by Geoffrey C. Hazard, Jr., 148 U.Pa.L.Rev. 1933, 1933 (2000). Medical monitoring is a novel, non-traditional tort and remedy. See Thompson v. American Tobacco Co., 189 F.R.D. 544, 552 (D.Minn.1999). Medical monitoring has evolved, in part, because the traditional common law tort system, which was inherited from post-feudal England and was developed to address conflicts raised by simple, straightforward traumatic injuries, is ill-designed to deal with the field of mass torts and latent, rather than immediate, injuries. See Amy B. Blumenberg, Medical Monitoring Funds: The Periodic Payment of Future Medical Surveillance Expenses in Toxic Exposure Litigation, 43 Hastings L.J. 661, 667-75 (1992); see also Wood, supra, at 1933-34.
"A claim for medical monitoring seeks to recover the anticipated costs of long-term diagnostic testing necessary to detect latent diseases that may develop as a result of tortious exposure to toxic substances." Bower v. Westinghouse Elec. Corp., 206 W.Va....
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