Meyer ex rel. Coplin v. Fluor Corp.

• Decision Date: 20 March 2007
• Docket Number: No. SC 87771.,SC 87771.
• Citation: 220 S.W.3d 712
• Parties: Lani MEYER, by and through her next friend, Rebecca COPLIN, Appellant, v. FLUOR CORPORATION, et al., Respondents.
• Court: Missouri Supreme Court

220 S.W.3d 712

Lani MEYER, by and through her next friend, Rebecca COPLIN, Appellant, v. FLUOR CORPORATION, et al., Respondents.

No. SC 87771.

Supreme Court of Missouri, En Banc.

March 20, 2007.

Rehearing Denied May 29, 2007.

Edward D. Robertson, Anthony L. DeWitt, Mary D. Winter, Jefferson City, Robert F. Ritter, Maurice B. Graham, Don M. Downing, St. Louis, MO, Kevin S. Hannon, The Hannon Law Firm, LLC, Denver, CO, for Appellant.

Andrew Rothschild, Richard A. Ahrens, Jeremy P. Brummond, Ted L. Perryman, Theodore J. Williams, Jr., Thomas L. Orris, heather Langlois, Jeffrey L. Cramer, T. Michael Ward, John H. Quinn, III, Robert G. Raleigh, Armstrong Teasdale, LLP, St. Louis, MO, for Respondents.

Michael S. Cessna, Kansas City, MO, Deborah J. La Fetra, Sacramento, CA, for Amicus Curiae Pacific Legal Foundation.

Jordan B. Cherrick, Kirsten M. Ahmad, St. Louis, MO, Hugh F. Young, Jr., Reston, VA, for Amicus Curiae The Product Liability Advisory Council, Inc.

RICHARD B. TEITELMAN, Judge.

Lani Meyer, by and through her next friend, Rebecca Coplin, ("Plaintiff") appeals from the order of the circuit court denying class certification in a tort action filed on behalf of a proposed class of children exposed to lead due to the operation of the Doe Run lead smelter in Herculaneum, Missouri. Plaintiff seeks, inter alia, to recover compensatory damages for the expense of prospective medical monitoring allegedly necessitated by emissions from the smelter. This Court concludes that the circuit court erred in denying class certification. The judgment is reversed, and the case is remanded.

I. FACTS

Fluor Corporation and several other entities and individuals ("Defendants") are involved with the operation of the Doe Run lead smelter in Herculaneum. Each year, the smelter emits large quantities of lead into the local environment, allegedly resulting in higher levels of lead and other toxins than would otherwise be present in and around Herculaneum. There is no dispute that lead is toxic and that children are generally more susceptible to injury from lead poisoning than are adults. There is also no dispute that injuries from lead exposure are often latent injuries; that is, a diagnosable physical injury or illness is not immediately apparent and years may pass before symptoms are detected.

Plaintiff filed a petition asserting that she is a member of a class of children in and around Herculaneum who has been exposed to toxic emissions from the smelter. Plaintiff alleged negligence, strict liability, private nuisance, and trespass as theories of liability and sought compensatory damages to establish a medical monitoring program for class members. The purpose of the monitoring program would be to provide ongoing diagnostic testing to determine whether the exposure to lead and other toxins has caused or is in the process of causing an injury or illness. The proposed class consists of over 200 children and includes:

1. All minors who lived within the Class Geographic Area¹ for at least 12 months when they were 72 months old or less and are currently 168 months or less;

2. All minors who have gone to school or day care within the Class Geographic Area for at least 12 months when they were 72 months old or less and who are not members of (a) above, and who are currently 168 months or less;

3. All minors who were born to mothers who lived within the Class Geographic Area for more than seven months during their pregnancies and who are not members of (a) or (b) above and who are currently 168 months or less.

Plaintiff sought class certification pursuant to Rule 52.08(b)(3), asserting that common issues of law and fact were predominate over individual issues.

The circuit court held a certification hearing and found that "individual issues will necessarily predominate over common issues in this case" and that the case could not be efficiently addressed on a class-wide basis. Accordingly, the court entered an order denying Plaintiff's motion for class certification.²

On appeal, Plaintiff argues that the circuit court erred because its class action analysis assumed incorrectly that a present physical injury is a necessary element of a medical monitoring claim. Plaintiff asserts that the circuit court focused on individual proof issues that are primarily relevant to a personal injury action, not a medical monitoring claim. Plaintiff further argues that the circuit court's reliance on two cases, In re "Agent Orange" Product Liability Litigation, 818 F.2d 145, 165 (2nd Cir.1987), and Owner-Operator Indep. Drivers Ass'n v. New Prime, 213 F.R.D. 537, 547 (Mo.2002), neither of which involved a medical monitoring claim, lends further support to the argument the circuit court mistakenly focused its class certification analysis on present physical injuries instead of the overriding common issue of class-wide exposure to toxins.

II. STANDARD OF REVIEW

This Court reviews an order granting or denying class certification for abuse of discretion. State ex rel. Union Planters Bank, N.A. v. Kendrick, 142 S.W.3d 729, 735 (Mo. banc 2004). A class certification hearing is a procedural matter in which the sole issue is whether plaintiff has met the requirements for a class action. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). Thus, the trial court has no authority to conduct a preliminary inquiry into whether the plaintiff has stated a cause of action or will prevail on the merits. Id. at 177, 94 S.Ct. 2140. Although the class certification decision lies in the circuit court's discretion, the courts should err in close cases in favor of certification because the class can be modified as the case progresses. Dale v. DaimlerChrysler Corp., 204 S.W.3d 151, 164 (Mo.App.2006) (citing Daigle v. Shell Oil Co., 133 F.R.D. 600, 602 (D.Colo.1990)).

III. ANALYSIS

A. Class Actions

Rule 52.08 governs the procedure for certifying a class action. There are four prerequisites to class certification: 1) the class must be so numerous that joinder of all members is impracticable; 2) there must be questions of law or fact common to the class; 3) the claims or defenses of the representative parties must be typical of the claims or defenses of the class; and 4) the representative parties must be able to fairly and adequately protect the class' interest. Rule 52.08(a).

Once the prerequisites of Rule 52.08(a) are met, the class action can be maintained only if the class satisfies one of the three requirements of Rule 52.08(b). Plaintiff sought class action certification under Rule 52.08(b)(3), which requires the trial court to find that the questions of law or fact common to the class members "predominate over any questions affecting only individual members" and that a class action is superior to other available methods for the fair and efficient adjudication of the matter.

In State ex rel. American Family Mutual Ins. Co. v. Clark, 106 S.W.3d 483 (Mo. banc 2003), this Court explained the "predominance" requirement:

"The `predominance' requirement ... does not demand that every single issue in the case be common to all the class members, but only that there are substantial common issues which `predominate' over the individual issues." South Carolina Nat'l Bank v. Stone, 139 F.R.D. 325, 331 (D.S.C.1991) (citing 3B Moore & Kennedy, Moore's Federal Practice ¶ 23.06-1 at 23-159, 160). The predominant issue need not be "dispositive of the controversy or even be determinative of the liability issues involved." Alba Conte & Herbert Newberg, Newberg on Class Actions section 4:25, at 169 (4th ed.2002). The need for inquiry as to individual damages does not preclude a finding of predominance. Lewis v. Nat'l Football League, 146 F.R.D. 5, 12 (D.D.C.1992) (mem.); see also Freedman v. Louisiana-Pacific Corp., 922 F.Supp. 377, 401 (D.Or.1996); Gaspar v. Linvatec Corp., 167 F.R.D. 51, 60 (N.D.Ill.1996) (memo). "A single common issue may be the overriding one in the litigation, despite the fact that the suit also entails numerous remaining individual questions." Conte & Newberg section 4:25, at 172.

Id. at 488. In other words, "when one or more of the central issues in the action are common to the class and can be said to predominate," the case may properly proceed as a class action, even though other important matters will have to be tried separately. 7A WRIGHT, MILLER & KANE, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D section 1778, at 529 (1986).

Although the class certification decision is independent of the ultimate merits of the lawsuit, "a court must understand the ... applicable substantive law in order to make a meaningful determination of the certification issues." Castano v. American Tobacco Co., 84 F.3d 734, 744 (5th Cir. 1996). Without a grasp of the nature and scope of Plaintiff's claim for medical monitoring damages, it would be difficult to identify the relevant issues. It is, therefore, necessary to determine the scope of a medical monitoring claim.

B. Medical Monitoring

In toxic tort cases, there is often no immediately diagnosable physical injury or illness. Instead, the injury is latent and may not be discovered for months or even years. The widely recognized tort law concepts premised upon a present physical injury are ill-equipped to deal with cases involving latent injury. To deal with this reality, tort law has evolved over the years to allow plaintiffs compensation for medical monitoring.³ A medical monitoring claim seeks to recover the costs of future reasonably necessary diagnostic testing to detect latent injuries or diseases that may develop as a result of exposure to toxic substances. Ayers v. Jackson Township, 106 N.J. 557, 525 A.2d 287, 308 (1987). The courts that have approved medical monitoring claims recognize that "significant economic harm may be inflicted on those exposed to toxic substances, notwithstanding the fact that the physical harm resulting from such exposure is often latent." Bower v....