Boughton v. Cotter Corp.

• Decision Date: 06 September 1995
• Docket Number: No. 94-1155,94-1155
• Citation: 65 F.3d 823
• Parties: , 26 Envtl. L. Rep. 20,196 Lynn and Deyon BOUGHTON, et al., Plaintiffs-Appellants, v. COTTER CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 823

65 F.3d 823

32 Fed.R.Serv.3d 821, 26 Envtl. L. Rep. 20,196

Lynn and Deyon BOUGHTON, et al., Plaintiffs-Appellants, v. COTTER CORPORATION, Defendant-Appellee.

No. 94-1155.

United States Court of Appeals Tenth Circuit.

Sept. 6, 1995.

Louise M. Roselle of Waite, Schneider, Bayless & Chesley, Cincinnati, OH, and James R. Christoph of McCormick & Christoph, Boulder, CO (Stanley Chesley of Waite, Schneider, Bayless & Chesley; Kenneth N. Kripke, Denver, CO; and David Kreutzer, Boulder, CO, with them on the brief) for plaintiffs-appellants.

John Leonard Watson and Edward E. Stevenson of Holme, Roberts & Owen, Denver, CO for defendant-appellee.

SEYMOUR, Chief Judge, HENRY, Circuit Judge, and COOK, Senior District Judge. ^*

H. DALE COOK, Senior District Judge.

The plaintiffs in this case were over 500 individuals alleging exposures of their persons and property to hazardous emissions of a uranium mill owned by the defendant corporation, Cotter Corporation (Cotter). Most of the plaintiffs demanded medical monitoring on account of radiation exposure but generally the plaintiffs did not allege physical illnesses. The plaintiffs brought an action alleging violations of the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), 42 U.S.C. Secs. 9601-9675 (1990) and the Price Anderson Act, 42 U.S.C. Sec. 2210 (1990) as well as state law claims including negligence, trespass and nuisance.

Certification of a class was proposed and denied on three occasions. After a trial to a jury for eight bellwether plaintiffs a verdict was returned in which all eight plaintiffs prevailed on negligence, six prevailed on trespass and three on nuisance. The plaintiffs appeal the denial of class certification, the refusal of the trial judge to allow them to depose an attorney for the defendant, the refusal of the trial judge to admit evidence of the fears of the plaintiffs of contracting disease to show damages and the trial judge's decision to grant summary judgment on the issue of piercing the corporate veil. We affirm.

I. CLASS CERTIFICATION

Although the plaintiffs concede that there are individual issues relating to the calculation of damages for those who were exposed to the uranium mill emissions they contend that there are common issues related to the liability of the defendants that should be tried as a class action. They argue that issues of whether the defendants behaved in a wrongful manner and what knowledge they had of the harmful effects of the emissions are common issues. They also argue that the models used for determining the extent of individual exposure and harm resulting from the emissions are common issues because such models will have variables representing individual characteristics. Although the calculation of the damages will be an individual by individual determination, plaintiffs nevertheless contend that the issues of what models to use for that calculation are common issues.

The plaintiffs contend that there are three such models: One to determine air exposure, another to determine water exposure and a third to determine "uptake" or how much of a harmful substance is taken into the body. The defendants argue that the plaintiffs' approach is too simplistic and that many models would be needed.

If the lower court did not apply an improper standard the court's decision is reviewed for an abuse of discretion. Pilots Against Illegal Dues v. Air Line Pilots, 938 F.2d 1123, 1134 (10th Cir.1991). The plaintiffs conceded in their opening brief that this was the appropriate standard of review. The discretion granted to the trial court on the certification issue leaves the decision as to what method of trial is most efficient primarily to the court that is in the best position to determine the facts of the case, to appreciate the consequences of alternative methods of resolving the issues of the case and that is in the best position to select the most efficient method for their resolution.

In her December 18, 1991 order, the judge below refused to certify a class under FED.R.CIV.P. Sec. 23(b)(3), finding that individual questions predominated over common questions of liability; such individual issues including whether purchasers were aware contamination existed, the extent and nature of injuries, the degree and length of exposure, the prevalence of contamination and proof of ownership to water rights. With regard to plaintiffs' argument that common liability issues could be tried as a class with individual issues of damages determined separately, the judge decided that this was not appropriate because there was not a single course of conduct alleged to have caused the injuries, identical with respect to each plaintiff; the judge said that the plaintiffs alleged that their injuries derived from more than one source and that it could not be shown that the claims of the proposed class members were all based upon one legal or remedial theory.

The plaintiffs argue that the abuse of discretion standard is one that has teeth, citing the case of Esplin v. Hirschi, 402 F.2d 94 (10th Cir.1968), cert. denied, 394 U.S. 928, 89 S.Ct. 1194, 22 L.Ed.2d 459 (1969)--the first case we decided on the issue under Rule 23 after the 1966 amendments--where we required certification under Rule 23 notwithstanding the trial judge's decision to the contrary.

Of course, a decision to deny certification may, under certain circumstances, constitute an abuse of discretion. Nevertheless, it is not clear that we were applying the current abuse of discretion standard in deciding Esplin v. Hirschi. Our opinion in that case did not acknowledge discretion in the trial judge on the certification question except for discretion on whether to apply the 1966 amendments to pending cases.

In any event, it is not necessary for us to critically examine Esplin v. Hirschi at this time because, even assuming that the case applied an abuse of discretion standard and was otherwise correctly decided, we find that the facts of that case are easily distinguished. Esplin v. Hirschi was a securities fraud case. The notes of the advisory committee accompanying the 1966 amendments state that predominance of common issues over individual issues would be necessary for the economies of the class action device under Rule 23(b)(3) to be achieved, and specifically stated: "In this view, a fraud perpetrated on numerous persons by the use of similar misrepresentations may be an appealing situation for a class action ..." On the contrary, only a few sentences later the advisory committee notes caution that "[a] 'mass accident' resulting in injuries to numerous persons is ordinarily not appropriate for a class action because of the likelihood that significant questions, not only of damages but of liability and defenses of liability, would be present, affecting the individuals in different ways." We also note that where the claim is based on a particular financial transaction, such as a purchase of stock, it is more easy to identify similarly situated individuals who made such purchases than to identify individuals who might have been exposed to hazardous substances released into the environment in varying ways and degrees at different times. ¹

Cook v. Rockwell Int'l Corp., 151 F.R.D. 378 (D.Colo.1993), cited by the plaintiffs, is not to the contrary because it is a district court decision, certifying a medical monitoring class under Rule 23(b)(2) and a property class under Rule 23(b)(3); the issue on appeal here is not whether the trial court could have certified a class but whether it was an abuse of discretion not to certify. The plaintiffs seek, among other things, the certification of a class for medical monitoring under Rule 23(b)(2). Although it is not necessary for common issues to predominate over individual issues under Rule 23(b)(2), provided that the trial judge does not apply an improper standard the decision whether to certify is still discretionary. Adamson v. Bowen, 855 F.2d 668 (10th Cir.1988) (where a decision not to certify was vacated because the trial court incorrectly held that predomination of common issues was a prerequisite to certification under Rule 23(b)(2) and the case was remanded for the trial court to exercise discretion under a correct interpretation of the law).

The trial judge, in her order filed December 18, 1991, considered and rejected certification under Rules 23(b)(1), (2) and (3). ² She decided, "[w]hile plaintiffs' claims relating to medical monitoring, if brought by themselves, might constitute a proper basis for certifying this suit under Rule 23(b)(2), certification is not proper here. The relief is predominately money damages ..." The trial judge understood that injunctive relief was requested and that certification of a class under such circumstances was legally permissible under Rule 23(b)(2), but nevertheless decided that it was not appropriate to certify a class under that rule where the relief sought was primarily money damages. Refusal to certify for that reason was not an abuse of the trial court's discretion.

Under Rule 23(b)(3) the trial judge held that individual issues predominated over common issues. She noted that the "[p]laintiffs allege that their injuries derive from more than one source, and questions of injuries and liability may differ depending upon where individual plaintiffs reside." (emphasis added) Although the wording of the opinion does not state expressly that discretion is being exercised and essentially states that the plaintiffs failed to meet the statutory prerequisites for certification under Rule 23(b)(3) so that certification would be legally improper, it has been held that a trial court's determination that common issues do not predominate is also reviewed under the abuse of discretion standard. "This is so because ... it is 'a practical problem, and primarily a factual one with which a district court generally has a greater familiarity and expertise than...