Day v. NLO, INC., C-1-90-67.
| Decision Date | 20 November 1992 |
| Docket Number | No. C-1-90-67.,C-1-90-67. |
| Citation | 811 F. Supp. 1271 |
| Parties | David DAY, et al., Plaintiffs, v. NLO, INC., et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
COPYRIGHT MATERIAL OMITTED
Thomas Joseph Kircher, Kircher, Robinson, Cook, Newman & Welch; Paul M. De Marco, Waite, Schneider, Bayless & Chesley Co.; and Allen Paul Grunes, Waite, Schneider, Bayless & Chesley, Cincinnati, OH, for plaintiffs.
William Howard Hawkins, II, Frost & Jacobs; John Stephen Wirthlin, Sr., Kevin T. Van Wart, Douglas James Kurtenbach, Beirne & Wirthlin, Cincinnati, OH; Herbert L. Fenster, McKenna, Conner & Cuneo, Washington, DC; and David M. Bernick, Kirkland & Ellis, Chicago, IL, for defendants.
ORDER DENYING MOTION TO RECONSIDER, GRANTING MOTION TO DISMISS CERTAIN COUNTS FOR EMPLOYEES, AND DENYING MOTION FOR A PETITION AND PLAN
This matter is before the Court on the following items: the Defendants' Motion to Dismiss (doc. 290), the Petition and Plan by the Plaintiffs (doc. 293), the Plaintiffs' Response to the Motion to Dismiss (doc. 294), the Defendants' Response to the Plaintiffs' Petition and Plan (doc. 295), the Defendants' Motion to Reconsider (doc. 296), the United States' Memorandum (doc. 297), the Plaintiffs' Reply concerning the Petition and Plan (doc. 299), the Defendants' Reply concerning the Motion to Dismiss (doc. 300), the Plaintiffs' Response to Reconsideration (doc. 302), and the Defendants' Reply concerning Reconsideration (doc. 303).
The Defendants in this case operated the Feed Materials Production Center ("FMPC") located in Fernald, Ohio. At the FMPC, National Lead of Ohio, Inc. ("NLO")1 was involved in certain aspects of the development and manufacture of nuclear weapons for the country's armed services.
The Plaintiffs in this case brought suit in 1990, alleging ten counts in their First Amended Complaint. See doc. 31. In Count I, the Plaintiffs allege that the Defendants acted negligently in running the FMPC. In Count II, the Plaintiffs contend that the Defendants should be held strictly liable for conducting abnormally dangerous activities at the FMPC. The Plaintiffs allege in Count III that the Defendants engaged in fraudulent concealment of the Plaintiffs' excessive exposure to radioactive and other hazardous materials. Count IV involves further claims of negligence. In Count V, the Plaintiffs ambiguously allege violations of the Atomic Energy Act. Various intentional torts are claimed in Count VI. The Plaintiffs allege in Count VII that the Defendants breached their contract with the United States government, and that the Plaintiffs have been damaged as third party beneficiaries. In Count VIII, the Plaintiffs allege violations of the Ohio Frequenter Statute. The Plaintiffs contend in Count IX that NLO's directors breached their duty of care to the corporation. Finally, in Count X, the Plaintiffs state that "... Defendants acted with conscious disregard for the safety and rights of Plaintiffs and others that had a great probability of causing substantial harm, and/or engaged in misconduct which was willful, wanton, fraudulent, and grossly negligent, and which resulted from Defendants' bad faith in operating the FMPC." Plaintiffs' First Amended Complaint, doc. 31, ¶ 85, at 40.
The Defendants moved to dismiss the Complaint as barred by the applicable statute of limitations. Because factual disputes existed, this Court held a lengthy trial on whether the Plaintiffs were time-barred. The jury found that some of the Plaintiffs could continue in their lawsuit, while others were barred under the statute of limitations.
In light of the jury's determination in the statute of limitations trial, the Court granted the Plaintiffs' Motion for Class Certification (doc. 281). The Court defined the class as follows:
all employees and contractors of defendant NLO, Inc. and the employees of NLO contractors who were present at the Feed Materials Production Center for six continuous weeks and who were no longer present at the FMPC after December 31, 1981. This class does not include any persons who were members of the class certified in In re: Fernald Litigation, Case No. C-1-85-149.
The Defendants have moved this Court to reconsider its decision certifying a class. In the alternative, the Defendants request that this Court allow an interlocutory appeal according to 28 U.S.C. § 1292 (1992) on the Court's certification of this lawsuit as a class action. The Defendants have three basic grounds for their motion. We shall examine these arguments briefly, as the Court has already considered many of these arguments in earlier Orders.
NLO's first argument is that this Court's certification of a class under Fed.R.Civ.P. 23(b)(2) is improper. Under Fed.R.Civ.P. 23(b)(2), a class action is appropriate if:
... the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole....
Thus, a Fed.R.Civ.P. 23(b)(2) class is proper only when an equitable remedy is the principal relief requested. Fed.R.Civ.P. 23(b)(2), Notes of Advisory Committee on Rules; In re Fernald Litig., 1986 WL 81380, n. 5 (S.D.Ohio 1986) (J. Spiegel).
NLO argues that in this lawsuit the Plaintiffs are seeking compensatory and punitive damages. However, as this Court has already stated, the Plaintiffs primarily request relief by way of a court-supervised medical monitoring program. In its Motion to Reconsider, NLO fails to grasp central aspects of this Court's earlier Order. An injunction ordering the Defendants to participate in a court-supervised medical monitoring program would certainly cause the Defendants to pay money. However, this money would not be paid directly to the Plaintiffs, as a traditional remedy at law would. Instead, any money that NLO would provide would be placed in a special fund, administered by the Court via trustees for the benefit of the class. The Defendants would also have to take appropriate actions, as the Court requires, in order for the Court to implement and administer a medical monitoring program fairly. In other words, all parties — the Plaintiffs, the Defendants, the Court, and the trustees — would have to work together to ensure a successful medical monitoring program of this type.2
Thus, if medical monitoring program is necessary, the Court intends not to dump money on the Plaintiffs so that they have the financial wherewithal to see a doctor; but rather, the Court intends to administer a plan involving regular physical examinations of class members and ongoing epidemiological studies. Because of ongoing court supervision, any medical monitoring awarded by this Court would constitute equitable relief. See e.g., Cook v. Rockwell Int'l Corp., 778 F.Supp. 512, 515 (D.Colo. 1991); Werlein v. United States, 746 F.Supp. 887, 895 (D.Minn.1990), vacated, claim settled 793 F.Supp. 898 (1992) (); Barth v. Firestone Tire & Rubber Co., 661 F.Supp. 193 (N.D.Cal.1987) (same).
NLO further argues that a class is not sustainable under Fed.R.Civ.P. 23(b)(2), because any class action under Fed. R.Civ.P. 23(b)(2) must involve the alteration of the ongoing conduct by a defendant. See e.g., Gould v. Sullivan, 131 F.R.D. 108, 115 (S.D.Ohio 1989); Cottrell v. Lopeman, 119 F.R.D. 651, 657 (S.D.Ohio 1987). However, as discussed above, if it is determined at trial that medical monitoring is necessary, this Court envisions a medical monitoring program that would alter the Defendants' conduct. The Defendants conduct would be altered, because this Court would compel the Defendants to participate in the medical monitoring program. The Defendants, on an ongoing basis, would have to provide pertinent data regarding employees' health records and information concerning employees' exposures to radioactive substances at the FMPC.
The Defendants further contend that class certification should be precluded because any relief that is awarded will not apply to the class as a whole. We disagree. The trial to be held in June 1993 will determine the merits of the Plaintiffs' claims, including whether medical monitoring should be instituted. If medical monitoring is found to be necessary, the entire class would be entitled this relief. Of course, class members would have to participate in some sort of claims procedure whereby individual differences are taken into account. Still, Fed.R.Civ.P. 23(b)(2) would not be violated, because a medical monitoring program would either apply or not apply to the class as a whole.
NLO's second argument behind its motion for reconsideration is that the class definition adopted by the Court was arbitrary. In its opinion concerning class certification, the Court ordered that the Defendants submit proposed class definitions by July 15, 1992. The Defendants failed to follow the Court's Order. In fact, the Court admonished Defendants' counsel that "... this Court has no intention of reversing its class certification decision now or in the future." Doc. 288, at 1-2. On August 19, 1992, the Court held a status conference in the litigation, and Defendants' counsel failed to suggest a proposed class definition — opting instead to criticize the Court's decision to certify a class. See Affidavit of Douglas J. Kurtenbach, doc. 296, exh. B, at ¶ 13.
By following this strategy, NLO cannot now claim that the class definition is improper. NLO has a right to disagree with, and eventually appeal, this Court's decision to certify a class action. Once the Court has made that decision, however, NLO must continue to pursue this litigation properly and follow the Court's Orders. By failing to abide by this Court's Orders, NLO cannot sit back and subsequently criticize this Court's class...
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