May/June 2003
Indecent Exposure:
The California Supreme Court’s Latest Decree On Medical Monitoring Claims
By Shiraz D. Tangri
Medical monitoring damages have become increasingly commonplace in lawsuits by plaintiffs alleging harmful exposure to toxic or hazardous chemicals. A medical monitoring claim seeks compensation for future medical testing and evaluation necessitated by the greater risk of serious disease faced by persons exposed to harmful substances. Although an individual plaintiff’s claim for medical monitoring is unlikely to have a large dollar value, medical monitoring damages become very significant when asserted by large numbers of plaintiffs claiming to have suffered a toxic exposure en masse. Such lawsuits, often referred to as “mass tort” actions, have been filed by groups of people living and working on or near properties impacted by environmental contamination or mold growth. Plaintiffs’ law firms pursuing mass tort cases frequently turn to the class action as a procedural vehicle for efficiently pursuing claims on behalf of large numbers of plaintiffs.
Recently, the California Supreme Court answered the previously unresolved question of whether medical monitoring damages can be pursued in a class action proceeding. Lockheed Martin Corp. v. Carrillo, 29 Cal. 4th 1096 (2003). Although the California Supreme Court affirmed the availability of medical monitoring damages via the class action procedure, the Court also established that plaintiffs bear a significant burden for obtaining class certification. The Lockheed decision provides important guidance for developers, landlords and other businesses who may have liabilities resulting from development of Brownfields or other properties impacted by hazardous substances.
Facts And Procedural Background
According to the plaintiffs in the Lockheed action, the manufacturing operations of several defendants discharged harmful contaminants into the water supply of the City of Redlands beginning in 1954. The plaintiffs were residents of Redlands seeking medical monitoring costs and punitive damages based on allegations that defendants’ operations exposed the plaintiffs to potentially toxic levels of numerous chemicals, including rocket fuel constituents and solvents. Estimating the number of plaintiffs from 50,000 to 100,000 people, counsel for plaintiffs sought to certify a class action.
Plaintiffs sought to certify two classes, a medical monitoring class and a punitive damages class. Both classes were defined identically to include people who were exposed to water contaminated with unsafe doses of specified chemicals. Each class member alleged exposure for some part of a day for greater than 50% of a year, for one or more years since 1955. The trial court ruled that plaintiffs demonstrated a realistic chance that defendants had caused contaminants to leach into the water table beneath Redlands. Concluding that plaintiffs shared a “well-defined community of interest” and that common questions of law and fact predominated over individual issues in the action, the trial court certified the two classes.
On appeal, the Court of Appeal reversed the trial court, concluding that individual issues raised by plaintiffs’ claims predominated over common issues. Plaintiffs then challenged the appellate ruling in the California Supreme Court.
Class Actions Can Seek Medical Monitoring
The California Supreme Court first recognized medical monitoring damages in Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965 (1993). Noting that toxic exposures can result in serious injuries many years after exposure, the Potter Court concluded that medical monitoring damages can be awarded to plaintiffs who can establish through reliable medical expert testimony that such monitoring is reasonable and necessary based on a demonstrated toxic exposure.
In Lockheed, the Court reaffirmed that Potter establishes the threshold for medical monitoring claims. The California Supreme Court also analyzed the requirements for class actions. A party seeking certification of a class action bears the burden of establishing both an ascertainable class and a well-defined community of interest among class members. The “community of interest” requirement has three components, including the prerequisite of predominant questions of law or fact common to all class members.
Noting that Potter requires examination of the facts specific to each individual plaintiff’s harmful exposure to damages, defendants asserted that medical monitoring claimants cannot demonstrate common questions of fact. The California Supreme Court disagreed and held that “no per se or categorical bar exists to a court’s finding medical monitoring claims appropriate for class treatment, so long as any individual issues the claims present are manageable.”
Medical Monitoring Plaintiffs Bear A Significant Burden To Qualify For Class Action Status
The California Supreme Court affirmed that plaintiffs bear the burden of establishing that class action treatment is appropriate. Noting that plaintiffs’ causes of action generally sounded in negligence, the Court held that common questions were presented regarding the duty and breach elements of plaintiffs’ claims. The factual issues common to all plaintiffs included how and when defendants disposed of potentially harmful chemicals, whether those facts demonstrated negligent conduct, and the existence and movement of chemicals in Redlands groundwater.
However, the Court rejected plaintiffs’ arguments that common issues predominated on the causation and damages elements of their claims. Applying the rule in Potter, the California Supreme Court required plaintiffs to show that the monitoring requested was a “reasonably certain consequence” of toxic exposure. This showing involves the facts of each individual plaintiff’s dosage of each chemical. Given the broad scope of the class action certified by the trial court, the Court found that each plaintiff would have to establish the facts of its consumption or other exposure to contaminated water. Accordingly, the individual causation issues presented by the Redlands plaintiffs far outweighed the common facts.
As to the damages element, the Court noted that plaintiffs must demonstrate a relative increase in the risk of serious disease as a result of the harmful exposure, requiring review of each of the 50,000 to 100,000 plaintiffs’ chances of developing a disease in the absence of the toxic exposure. Thus, the individual issues presented by plaintiffs’ damages claims predominated over the common ones. Because plaintiffs failed to demonstrate the manageability of individual issues, the California Supreme Court reversed the trial court, holding that the Redlands plaintiffs cannot pursue their medical monitoring claims via class action.
Conclusion
The Lockheed decision is a milestone for mass tort claims in California. Developers and property owners can expect this area of the law to continue to develop, as medical monitoring claims become more common. In addition, to avoid the stringent hurdles imposed by the Lockheed ruling, plaintiffs may turn to procedural vehicles other than class actions, including coordination and consolidation of individual lawsuits.
Shiraz D. Tangri recently joined ECJ’s Environmental group as an associate. From his previous positions in New York and California, he brings extensive experience in litigating cases involving large numbers of claimants, including toxic tort and product liability actions.
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