Barnes v. American Tobacco Co., 97-1844

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Citation161 F.3d 127
Docket NumberNo. 97-1844,97-1844
PartiesProd.Liab.Rep. (CCH) P 15,407 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.
Decision Date12 November 1998

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

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- 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).

supervised medical monitoring program. Judge Spiegel explains:

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 injunctive relief under a medical monitoring claim.

Arch at 483-84.

Accordingly, the District Court granted plaintiffs leave to file an amended complaint. In their Second Amended Complaint, plaintiffs brought only one claim...

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