Lead Opinion
Lаni Meyer, by and through her next friend, Rebecca Coplin, (“Plaintiff’) ap
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 оf 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 а 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 dеtermine 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, аnd 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 necessаrily 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 Plaintiffs motion for class certification.
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,
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 actiоn 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,
“The ‘predominance’ requirement ... does not demand that every single issue in the case be common to all the class*716 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 “disposi-tive of the controversy or even be determinative of the liability issues involved.” Alba Conte & Herbert Newberg, New-berg on Class Actions section 4:25, at 169 (4th ed.2002). The need for inquiry as to individual damages does not precludе 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.” Castaño v. American Tobacco Co.,
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.
This Court has not addressed whether Missouri law permits the recovery of medical monitoring damages. However, in Elam v. Alcolac, Inc.,
The evidence of significant, albeit unquantified, risk of cancer from the exposure to the toxic [chemicals], however, was competеnt to prove, as a separate element of damage, the need for medical surveillance of the immune system and other organs, and hence was admissible for that purpose.
The Elam court recognized that among the potential damages sustained by a plaintiff who is exposed to a toxin is the need for medical monitoring for the “early detection of serious disease from the chronic exposure” to toxins. Id. at 209. The court further reasoned that medical monitoring costs are recoverable because “compensation for necessary medical expenses reasonably certain to be incurred in the future rests on well-accepted legal principles.” Id. at 209. These “well-accepted” principles of Missouri law provide that a plaintiff is entitled to recover for the prospective consequences of the defendant’s tortiоus conduct if the injury is reasonably certain to occur. See, e.g., Wilcox v. Swenson,
Defendants assert that аny recovery for medical monitoring is contingent upon the existence of a present physical injury. Although some courts have so concluded, a present physical injury requirement is inconsistent with the theory of recovery. As with any claim based in tort law, the injury underlying a medical monitoring claim is the invasion of a legally protected interest. Just as an individual has a legally protected interest in avoiding physical injury, so too does an individual have an interest in avoiding expensive medical evaluations caused by the tortious conduct of others. “When a defendant invades this interest, the injury to which is neither speculative nor resistant to proof, it is elementary that the defendant should make the plaintiff whole by paying for the examinations.” Potter v. Firestone Tire Rubber Co.,
These considerations have led a number of courts that have addressed this issue to conclude that recovering medical monitoring damages does not require a threshold showing of present physical injury.
In its order denying class certification, the circuit court identified nine individual issues that the court concluded were predominant over the common issues. Specifically, the court found that:
[Individual issues will necessarily predominate over common issues in this case. These issues include the age at whiсh exposure occurred, the nature of the exposure, the time period over which the exposure occurred, the blood lead level, the existence of other sources such as lead paint for any presence of lead, whether the individuals are presently suffering from any lead related injuries, whether the individuals are still being exposed or whether such exposure terminated, if the exposure to lead in Herculaneum hаs terminated how long ago it terminated, and whether there is any need for a particular individual to be monitored.
Each of these nine individual factors is primarily relevant to a personal injury action, not a medical monitoring claim for which there is no necessity of establishing a present physical injury. This is particularly true given Plaintiffs theory of liability, which posits that liability is premised upon the exposure to toxins from a single source during a specified age range in childhood or in útero. Class membership is restricted by definition to persons who have received specified, medically significant minimum levels of exposure to the toxins discharged from the Doe Run smelter. It is the common fact of exposure to a set of toxins from a single source that is the common and overriding issue in Plaintiffs case. The significance and extent of toxic exposure is primarily an issue of common proof. Under this theory of liability, the individual factors identified by the circuit court are not particularly relevant because the need for monitoring is based on a common threshold of exposure. Whether Plaintiff is able to prove this theory is, at this stage, irrelevant because the sole issue is whether Plaintiff met the requirements for a cause of action, not whether Plaintiff will ultimately prevail. See, Eisen v. Carlisle & Jacquelin,
That the circuit court’s analysis assumed a present physical injury requirement is further reflected in the court’s reliance on In re “Agent Orange” Product Liability Litigation,
The dissenting opinions assert that Plaintiffs claims are not typical of the class because she has filed a separate personal injury action. However, the circuit court did not address the typicality issue in its judgment. Thе circuit court can, on remand, address and make findings on the typicality issue as well as any issue regard
IV. CONCLUSION
The circuit court misapplied the law by applying personal injury concepts to Plaintiffs medical monitoring claim and in holding that these individual personal injury issues were predominate over common issues. The judgment denying class certification is reversed, and case is remanded.
Notes
. The Class Geographic Area includes most of the City of Herculaneum, including those areas of the City that are adjacent to the Doe Run smelter.
. Before addressing the predominance issue, the circuit court found that joinder of all proposed class members was impractical and that the "numerosity” requirement оf Rule 52.08(a) was thereby satisfied. However, the court did not make specific findings regarding
. See, e.g., Badillo v. American Brands, Inc.,
. It bears emphasizing that allowing compensation for mеdical monitoring costs “does not require courts to speculate about the probability of future injury. It merely requires courts to ascertain the probability that the far less costly remedy of medical supervision is appropriate.” In re Paoli,
.The Elam court indicated that a present physical injury is not a prerequisite to recovering damages for medical monitoring by relying upon Ayers v. Jackson Township,
. See also, Redland Soccer Club v. Dept, of the Army,
. In this appeal of a class certification decision, which is a procedural matter, there is no need for this Court to establish precisely what must be proven in order to recover medical monitoring damages. It is sufficient to note the theory of recovery accounts for the latent nature of injuries stemming from exposure to toxins and comports with Elam and general principles of Missouri tort law.
. Rule 55.33(a) provides that leave to amend "shall be freely given when justice so requires.” Missouri courts have invoked this rule to permit the substitution of parties. See, Asmus v. Capital Region Family Practice,
Dissenting Opinion
dissenting.
I agree with the majority opinion that common issues predominate over individual issues. From that perspective, the trial court erred in denying class certification. I write separately because the claim of the named plaintiff is not typical of the class. For that reason, the trial court was correct and the class should not be certified. See Business Men’s Assur. Co. of America v. Graham,
Rule 52.08(a) provides:
Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if ... (3) the claims or defenses of the representative рarties are typical of the claims or defenses of the class ...
Plaintiff in this case is Lani Meyer, by and through her next friend Rebecca Coplin. Lani alleges that she has suffered actual present injuries resulting from toxins produced by the defendants. In fact, Lani has filed a separate personal injury action against the defendants based upon those injuries in the Circuit Court for the City of St. Louis, Meyer v. Fluor Corporation, No. 052-9609. The class of persons Lani seeks to represent, howеver, are children who have been exposed to those same toxins, but who have not yet exhibited or recognized symptoms of illness.
As the majority opinion points out, there are many and significant differences between personal injury actions involving a present injury and an action for medical monitoring, including the very nature of the relief sought. As class representative, Lani seeks a money award to pay for “the costs of periodiс diagnostic testing and examination necessary to detect the existence of physical harm from exposure to hazardous chemicals.” However, having already suffered injury, Lani needs treatment and an award of damages for her injuries, not medical monitoring. The fact that Lani has brought her own individual lawsuit is an undeniable admission that the interest of the class and her own interests
Because the claims of the proposed representative plaintiff are not typical of the class, certification is not proper under Rule 52.08(a)(3). I would affirm the judgment of the trial court denying class certification.
Dissenting Opinion
dissenting.
I concur in Judge Price’s dissenting opinion except that I would not address the question of whether “common issues predominate over individual issues.” There is no need to do so once it is determined that “the claim of the named plaintiff is not typical of the class.”