Thomas v. FAG Bearings Corp., Inc.

• Decision Date: 06 April 1994
• Docket Number: No. 92-5070-CV-SW-8.,92-5070-CV-SW-8.
• Citation: 846 F. Supp. 1400
• Parties: Elaine and Guy THOMAS, et al., Plaintiffs, v. FAG BEARINGS CORPORATION, INC. and Fag Kugelfischer Georg Schaefer KGaA, Defendants.
• Court: U.S. District Court — Western District of Missouri

846 F. Supp. 1400

Elaine and Guy THOMAS, et al., Plaintiffs, v. FAG BEARINGS CORPORATION, INC. and Fag Kugelfischer Georg Schaefer KGaA, Defendants.

No. 92-5070-CV-SW-8.

United States District Court, W.D. Missouri, Southwestern Division.

April 6, 1994.

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John M. Parisi, Bobbie R. Bailey and Lynn R. Johnson, Shamberg, Johnson, Bergman & Morris, Chartered, Overland Park, KS, Kenneth B. McClain, Gregory Leyh, Independence, MO, John M. Klamann, Payne & Jones, Overland Park, KS, Michael A. Gould, Raaji Deen Kanan, Gould & Duchardt, North Kansas City, MO, for plaintiffs.

David Field Oliver, M. Jan Day, Smith, Gill, Fisher & Butts, Kansas City, MO, Eric S. Aronson, John M. Scagnelli, Whitman & Ransom, Newark, NJ, for defendants.

MEMORANDUM OPINION AND ORDER

STEVENS, Chief Judge.

This matter is before the Court on the following motions: plaintiffs' amended motion for class certification and defendant FAG Bearing's motion for partial summary judgment on plaintiffs' claims of mental anguish, fear of cancer, increased risk of cancer and medical monitoring.

I. Motion for Class Certification

In order to maintain a class action, a proposed class must meet the prerequisites of numerosity, commonality, typicality and adequate representation as provided for in Fed.R.Civ.P. 23(a). However, those elements are "necessary, but not sufficient conditions for a class action." Advisory Committee notes to Rule 23. In addition to satisfying the four elements in Rule 23(a), the Court must find that a class is an appropriate vehicle to resolve this dispute. The Federal Rules of Civil Procedure outline three factual situations in which a class action is appropriate. See Fed.R.Civ.P. 23(b)(1)-(3). Since, as discussed below, the Court finds that plaintiffs cannot satisfy any of the scenarios under Rule 23(b)(1)-(3), the Court need not address the four prerequisite factors found in Rule 23(a).

Plaintiffs submit that the proposed class should be certified under either Rule 23(b)(2) or 23(b)(3). Rule 23(b)(2) provides that a class is an appropriate mechanism where "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." Fed.R.Civ.P. 23(b)(2). Such definition "does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages." Advisory Committee notes to Rule 23(b)(2).

Plaintiffs assert three types of relief that would satisfy Rule 23(b)(2). First, plaintiffs claim that the response costs under CERCLA are essentially equitable in nature and qualify as "injunctive" or "declaratory" relief. While some courts may have stated that CERCLA response costs are equitable in nature, this does not change the fact that the relief sought by plaintiffs in this case is predominantly money damages. An award of costs incurred in response to contamination cannot be construed otherwise. This is not a sufficient basis for a class under Rule 23(b)(2).

Even if the Court were to find that CERCLA damages satisfy the rule, the claims of the representatives would not be typical of the other class members. Of the named representatives, the Village of Silver Creek alleges response costs of approximately $534,000, while the other named representatives either allege response costs under $100 or nothing at all. Some named plaintiffs may not even have claims under CERCLA, see infra, while those who do will have differing claims. The Court finds that the claims of the class representatives are not typical of the rest of the class.

Second, plaintiffs request injunctive relief under RCRA. They seek to have the court order FAG Bearings to cease and desist from all future releases of TCE.¹ Since FAG Bearings voluntarily stopped using TCE in 1981 and has not used it since, it is unlikely that the injunctive relief requested under RCRA is the "raison d'etre" of plaintiffs' lawsuit, and has no purpose other than to serve as a basis for attorney fees. This relief is clearly incidental to the monetary relief requested, if not altogether unnecessary. For that reason, this is not a sufficient ground on which to certify this proposed class.

Finally, plaintiffs argue that class action treatment is appropriate because they seek future medical monitoring. While plaintiffs seek to couch such damages in the guise of injunctive relief for the purposes of this motion, their complaint requests "the future costs of medical monitoring." Such costs are nothing more than "compensation for necessary medical expenses reasonably anticipated to be incurred in the future." Elam v. Alcolac, 765 S.W.2d 42, 209 (Mo.Ct.App.1988), cert. denied 493 U.S. 817, 110 S.Ct. 69, 107 L.Ed.2d 36 (1989). Absent anything more than an exchange of money, as requested by plaintiffs, these damages cannot be injunctive in nature. They are simply another element of tort damages. Werlein v. United States, 746 F.Supp. 887, 895 & 904 (D.Minn.1990), vacated in part on other grounds, 793 F.Supp. 898 (D.Minn.1992). Since this claim is not for injunctive relief, it cannot form the basis of a class under Rule 23(b)(2). See Brown et al. v. S.P.E.T.A. et al. (Paoli Railyard PCB Litigation, 1987 WL 9273, at *11, *14, 1987 U.S. Dist. LEXIS 5095, at *34 (April 8, 1987).

Next, plaintiffs assert that the class should be certified under Rule 23(b)(3) because

the questions of law or fact common to the members predominate over any questions affecting only individual members, and that a class is superior to other available methods for a fair and efficient adjudication of the controversy.

Fed.R.Civ.P. 23(b)(3). In making this determination, the court is to consider the interest of individual plaintiffs in controlling their own litigation, the nature and extent of other litigation already commenced by class members, the desirability of concentrating the litigation in this court, and the difficulties likely to be encountered. Id.

The Advisory Committee notes 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 also of liability and defenses to liability, would be present, affecting the individuals in different ways. In these circumstances an action conducted nominally as a class action would degenerate in practice into multiple lawsuits separately tried.

Notes of Advisory Committee to Fed. R.Civ.P. 23(b)(3).

In the present case, while there are undoubtedly common issues of law and fact, such as whether FAG Bearings released TCE into the groundwater, the individual issues of causation and damage so overshadow those in numerosity and complexity to render a class action unhelpful. See Paoli Railyard PCB Litigation, supra, at *10, *14, at 29-32.

The Court anticipates that plaintiffs' proof of causation, if offered consistently with the Court's February 10, 1994 opinion, will require individualized proof for each plaintiff. As an example, a test of the well water of nominal plaintiffs Steven Lee and Rebecca Luebber failed to disclose the presence of TCE. Not only does this indicate that their proof of contamination will be different from other plaintiffs, but it underlines the complex nature of hydrogeology. Because the results vary markedly from well-to-well, expert testimony on the actual source of contamination for each well may be required.

Assuming causation is proved, each plaintiff must prove entitlement to damages. The measure of damages is dependent almost exclusively on individual factors. As discussed below, all medical damages (mental anguish, cancerphobia, increased risk of cancer and medical monitoring) require proof of individual injury. Other damages claims, such as CERCLA response costs, diminution in property value, loss of use and enjoyment, and annoyance, would also require individualized proof. This would start hundreds or thousands of individual mini-trials on complex causation and damages issues, while the only benefit of a class would be that the ruling of several common, but not particularly daunting issues, would be made applicable to the entire class. The Court does not believe that result is consistent with the language or spirit of Rule 23(b)(3)(C), (D). Since the Court finds that a class is not a superior, or even desirable mechanism in this case, plaintiffs' argument that the class should be certified under Rule 23(b)(3) is rejected.

The Court finds that certification of plaintiffs' proposed class is not appropriate under any of the provisions of Fed.R.Civ.P. 23(b). Accordingly, plaintiffs' motion for class certification will be denied.²

II. FAG Bearings' Motion for Summary Judgment on Mental Anguish, Increased Risk of Cancer, Fear of Cancer, and Medical Monitoring.

Summary Judgment Standard

Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).

If a party is unable to make a sufficient showing to establish the existence of some essential element of its case upon which it will bear the ultimate burden of proof at trial, all other facts are necessarily immaterial. Celotex Corp. v. Catrett, 477 U.S. 317, 321, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

A party seeking summary judgment bears the initial burden of demonstrating to the court that an essential element of the nonmoving party's case is lacking. Id. The burden then shifts to the nonmoving party to come forward with sufficient evidence to demonstrate that there is a factual controversy as to that element, or to explain why such evidence is not currently available. Anderson v. Liberty...