Metropolitan News-Enterprise


Tuesday, March 4, 2003


Page 1


S.C. Limits Class Actions for Medical Monitoring in Toxic Tort Cases


By KENNETH OFGANG, Staff Writer/Appellate Courts


Lawsuits seeking to recover costs of medical monitoring necessitated by exposure to toxics may proceed as class actions in appropriate cases, the California Supreme Court ruled yesterday.

In a case that drew three separate opinions, the justices unanimously agreed that there is no per se bar to class actions to recover for medical monitoring costs. But a 5-2 majority agreed with the Fourth District Court of Appeal that a San Bernardino Superior Court judge abused his discretion in granting class certification in a suit brought on behalf of Redlands area residents.

The high court, however, declined to endorse the reasoning of the appellate panel, which “stated or implied that no action in which plaintiffs seek medical monitoring as a remedy may ever be certified for class action treatment,” Justice Kathryn M. Werdegar explained.

Werdegar and Justice Joyce L. Kennard voted to affirm, on the limited ground that variances in the length of time various residents lived in the area and in the amounts of water consumed by the various prospective class members made class certification unreasonable.

Werdegar and Kennard joined dissenting Justices Carlos Moreno and Chief Justice Ronald M. George, who would have upheld the trial judge, in reject a broader holding urged by the remaining three justices.

The plaintiffs sought creation of a court-supervised medical monitoring fund, along with punitive damages, for a class of perhaps 50,000 to 100,000 persons who may have drank water contaminated as a result of manufacturing operations at a rocket plant.

The facility was opened in the mid-1950s by Great Central Rocket Company, which was later acquired by Petro-Tex Chemical Corporation. Petro-Tex sold the plant and the surrounding property in the early 1960s to Lockheed Martin Corporation, which closed the plant in 1974 and leased part of the property for an industrial park in 1979.

Defendants in the lawsuit include Lockheed, Petro-Tex, and three tenants of the industrial park who allegedly continued to pollute the local water supply prior to the filing of the suit in 1996. The plaintiffs claim to have been exposed to a number of known and unknown chemicals, including ammonium perchlorate, a primary component of rocket fuel that has been linked to thyroid problems.

The plaintiffs, represented by some of the state’s best-known toxic tort firms, are seeking to recover medical monitoring costs under Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, which first recognized that a person who has been exposed to toxic substances at significant levels may be entitled to recover medical monitoring costs without manifesting any illness.

The attempted class action is independent of suits by more than 800 plaintiffs, still pending in the San Bernardino court, claiming actual injury as a result of drinking the water. The plaintiffs are represented by the law firms of Engstrom, Lipscomb & Lack, Masry & Vititoe, and Girardi & Keese—all of whom represented the class action plaintiffs—among others.

Werdegar rejected the plaintiffs’ contention that classwide issues predominated over those involving the individual prospective class members.

The argument was based on medical expert opinions that even persons who had lived in the area for as little as six months during the period covered by the suit, the minimum length of time needed to qualify as a member of the proposed class, would need medical monitoring irrespective of the actual amount of contaminated water they’d consumed.

But Werdegar said the evidence was “too qualified, tentative and conclusionary to constitute substantial evidence that plaintiffs, by adopting a liability theory that makes actual dosages and variations in individual response irrelevant, will be able to prove causation and damages by common evidence.”

Justices Janice Rogers Brown, Marvin Baxter, and Ming Chin said there were other reasons for rejecting a class action. Brown, writing for the three, emphasized the number of different toxic substances alleged to have placed the plaintiffs at risk, the size of the proposed class, the number of medical conditions for which monitoring is allegedly necessary, the number of defendants, the fact that alleged dumping occurred in several different locations on a piece of property more than 400 acres in size, and the length of time over which contamination allegedly occurred.

Moreno, writing for himself and the chief justice, said a class action was an appropriate means of disposing of medical monitoring claims and that Superior Court Judge Ben Kayashima, since retired, did not abuse his discretion in granting certification.

He took issue with Werdegar’s characterization of the plaintiffs’ expert evidence. “This type of reevaluation of the record and critique of expert testimony is inappropriate in the context of a certification motion,” Moreno reasoned.

Howard B. Miller of Girardi & Keese, who argued for the plaintiffs, said that by adopting a “fact-specific” analysis, the high court had given some hope to plaintiffs “all over the state where people have been weighting to see whether it is possible to have a class action for medical monitoring.”

Robert S. Warren of Gibson, Dunn & Crutcher argued the case for the defendants, who received support in the form of amicus briefs by members of the oil, chemical, asbestos, and insurance industries, as well as the United States Chamber of Commerce and two conservative legal foundations.

Warren referred a MetNews request for comment to Lockheed, whose spokeswoman said the company was “gratified” by the decision and “looking forward” to attempting to resolve the individual claims.

The case is Lockheed Martin Corporation v. Superior Court, 03 S.O.S. 1116.


Copyright 2003, Metropolitan News Company