MEMORANDUM AND ORDER
This matter is before the Court upon Plaintiffs’ Motion for Class Certification and Plaintiffs’ Motion to Reserve Individual Injury and Damage Claims. A class certification hearing was held on October 15, 1999 at which time the Court heard oral arguments in support of and in opposition to Plaintiffs’ motion. For the following reasons, the Court denies Plaintiffs’ motions.
BACKGROUND
Plaintiffs bring this suit alleging that Defendants, who are cigarette manufacturers, promoters, and distributors, engaged in an industry-wide fraudulent scheme to induce people to smoke and to keep them smoking. Specifically, Plaintiffs contend that Defendants induced people to smoke by falsely denying the existence of addictive and hazardous agents in their products, through advertisements and other means, and generally concealing the truth about their products from the public. (See Third Am.Compl. Till 18-42.) Plaintiffs further contend that Defendants engaged in “premeditated conduct to addict smokers” by not only placing nicotine, an addictive agent, in their products but also by “manipulating nicotine content to maximize its effect on smokers.” (Pis.’ Mem. in Supp. of Class Certification at 22.) Plaintiffs allege that this scheme has directly caused addiction and disease and has exposed them to serious latent illnesses, thereby necessitating Plaintiffs’ participation in smoking cessation and medical monitoring programs. (See Third. Am.Compl. KK 16, 18.) Plaintiffs have produced voluminous documentation in support of these factual allegations, many of which were generated in the Minnesota tobacco case. (See Pis.’ App.)
Plaintiffs assert that Defendants’ allegedly fraudulent course of conduct constitutes common law fraud and statutory fraud under Minn.Stat. §§ 325F.67, 325F.68, 325F.69, 325D.43. (See Third Am.Compl. KK 43-50.) Plaintiffs also allege that Defendants’ conduct entitles them to recovery under the novel tort of “medical monitoring.” (See id. KK 51-59.) Under these theories, Plaintiffs seek the following relief: disgorgement of profits; compensatory damages; the establishment of a smoking cessation program and a court-administered medical monitoring program funded by the Defendants; costs, prejudgment interest; and any other relief Plaintiffs are entitled to under the law. (See id. at 18.) Plaintiffs have moved to reserve the individual injury and damage claims and proceed only with the request for cessation and medical monitoring at this time. (See Pis.’ Mot. to Reserve Claims.)
All Minnesota residents as of September 3, 1996, who, while residents of Minnesota, smoke or smoked cigarettes manufactured or promoted by the Defendants, and, who desire to participate in a program designed to assist them in cessation of smoking and/or monitor their medical condition to promote early detection of disease caused by, contributed to, or exacerbated by cigarette smoking. Expressly reserved from the class claims are any claims for personal injury.
(Third Am.Compl. 116.) By definition then, the proposed class includes current smokers who suffer from smoking-related illnesses; former smokers who suffer from smoking-related illnesses; current smokers who do not currently suffer from smoking-relating illnesses but who are at an increased risk of suffering from such illnesses; and former smokers who do not currently suffer from smoking-relating illnesses but who are at an increased risk of suffering from such illnesses. The class also includes “smokers” who simply want to stop smoking. This apparently includes individuals who are addicted to cigarettes and wish to stop smoking, individuals who are not addicted to cigarettes, but desire to stop smoking with the assistance of a cessation program, and individuals who no longer smoke but wish to participate in a cessation program in order to remain smoke-free. (See Pis.’ Mem. in Supp. of Class Certification at 45.) Plaintiffs do not place a qualitative threshold on class membership. That is, Plaintiffs do not define the term “smoker” or exclude individuals who have smoked as few as one cigarette manufactured or promoted by Defendants within the class period from the class. Therefore, the Court analyzes the proposed class as if such individuals are proper class members. The parties estimate that, if certified, the class would include approximately 700,000 individuals. (See Pis.’ Mem. in Supp. of Class Certification at 37; Defs.’ Mem. in Opp’n to Class Certification at 28.)
Defendants oppose class certification, arguing that Plaintiffs fail to meet the requirements of Rule 23 of the Federal Rules of Civil Procedure. For the reasons discussed below, the Court declines to certify Plaintiffs’ proposed class. Accordingly, the Court also denies Plaintiffs’ Motion to Reserve Individual Injury and Damage Claims.
DISCUSSION
A. Class Certification
Class certification is governed by Rule 23 of the Federal Rules of Civil Procedure. In order to satisfy the threshold requirements of Rule 23, the named plaintiffs must establish that: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. See Fed.R.Civ.P. 23(a); see also Castano v. American Tobacco Co.,
1. Rule 23(a): Threshold Requirements
Although the numerosity requirement in this case is clearly satisfied, Defendants argue that Plaintiffs’ claim fails to meet the additional threshold requirements of commonality, typicality, and adequacy.' (See Defs.’ Mem. in Opp’n to Class Certification at 37-67.) Defendants further argue that even if Plaintiffs’ proposed class does meet such preliminary requirements, it does not meet the predominancy or superiority requirements of Rule 23(b)(3).
a. Commonality
Commonality is not required for every question raised in a proposed class action. Rather, commonality exists when the “legal question ‘linking the class members is substantially related to the resolution of the litigation.’ ” DeBoer v. Mellon Mortgage Co.,
In this case, the commonality requirement is satisfied, as Plaintiffs have set forth several common questions of fact and law. (See Third Amend.Compl. H10.) Most notably, Plaintiffs seek to establish that Defendants engaged in a single “deceptive and fraudulent course of conduct concerning the health hazards of smoking and addictive characteristics of cigarettes.” (Pis.’ Mem. in Supp. of Class Certification at 38.) This factual and legal question is necessary to the resolution of the litigation and is common to all class members. That is, in order to prevail each class member must, at a minimum, establish that Defendants engaged in a fraudulent course of conduct. This overarching common question is sufficient to meet the commonality requirement under Eighth Circuit Court of Appeals standards. The fact that individualized issues are implicated does not impact this determination. See DeBoer,
b. Typicality
In addition to meeting the commonality requirement of Rule 23, Plaintiffs must also show that the “claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed.
Here, the named Plaintiffs appear to have grievances identical to those of the class. Each Plaintiff is an alleged victim of Defendants’ allegedly fraudulent scheme to induce people to smoke and keep them smoking. In addition, each Plaintiff seeks the similar relief, namely, participation in a cessation program and/or medical monitoring program. Further, the probable defenses in this case — assumption of risk and the statute of limitations — meet the typicality requirement in that they will likely be asserted against each Plaintiff. {See Defs.’ Mem. in Opp’n to Class Certification at 54-55.) The fact that the defenses may be successful against some Plaintiffs and not others does not render the named Plaintiffs’ claims atypical. The Court therefore finds that Rule 23(a)’s typicality requirement is satisfied.
c. Adequacy
The fourth precondition for class certification is a finding that “the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). Determining whether this precondition is met entails a two-pronged inquiry. First, the representatives’ attorneys must be qualified and willing and able to prosecute the case competently and vigorously. See Park-hill,
Named Plaintiffs Janet Thompson, Rita Pettit, and Demont Harris appear to share the class’ interest in participating in a cessation and/or medical monitoring program. In addition, there is no indication at this time that the named Plaintiffs’ interests in developing such programs will be “at the expense of other class members or will, in any other way, be antagonistic to the class’ interests.” Paxton,
The Court finds that the named Plaintiffs’ efforts to reserve personal injury and damage claims may, in fact, jeopardize the class members’ rights to bring such claims in a subsequent case. The governing legal principle is that of res judicata, which precludes subsequent litigation when certain conditions are met. See Youngstown Mines. Corp. v. Prout,
[Representatives who ‘tailored the class claims in an effort to improve the possibility of demonstrating commonality1 obtained this ‘essentially cosmetic’ benefit only by ‘presenting putative class members with significant risks of being told later that they had impermissibly split a single cause of action.
Id. (quoting Feinstein v. Firestone Tire and Rubber Co.,
2. Rule 28(b) Requirements
a. Rule 28(b)(8) — Predominance and Superiority
In order to successfully move -for class certification under Rule 23(b)(3), a plaintiff must establish that questions common to the class predominate over any questions affecting only individual members and that a class action is superior to other available methods of adjudicating the controversy. In determining predominance and superiority, the Court considers the following nonexclusive factors:
(A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability and undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
Fed.R.Civ.P. 23(b)(3). In the present case this analysis reveals that Plaintiffs’ Complaint is riddled with individual questions that predominate over questions common to the class. The Court will address each issue requiring individual determination in turn below. Before engaging in that discussion, however, it is necessary to address a vigorously contested issue: the role of causation in this lawsuit. Defendants argue that Plaintiffs’ claim requires each Plaintiff to establish reliance. (See Defs.’ Mem. in Opp’n Class Certification at 36-41, 46-48.) According to Defendants, Plaintiffs must prove that each class member began smoking or is currently unable to stop smoking as a direct result of Defendants’ allegedly fraudulent scheme. (See id.) Plaintiffs argue that proof of individual causation is not necessary under either the tort of medical monitoring or statutory fraud.
Plaintiffs urge this Court to recognize the tort of medical monitoring as a proper claim for relief under Minnesota law. The tort of medical monitoring has developed in the common law to compensate plaintiffs who have been exposed to toxic substances. See In re Paoli Railroad Yard PCB Litig.,
[I]n an effort to accommodate a society with an increasing awareness of the danger and potential injury caused by widespread use of toxic substances, courts have begun to recognize claims like medical monitoring, which can allow plaintiffs some relief even absent present manifestations of physical injury. More specifically, in the toxic tort context, courts have allowed plaintiffs to recover for emotional distress suffered because of the fear of contracting a toxic exposure disease, the increased risk of future harm, and the reasonable costs of medical monitoring or surveillance.
Paoli,
Given the novelty of the tort of medical monitoring and that the Minnesota Supreme Court has yet to recognize it as an independent theory of recovery, this Court is not inclined at this time to find that such a tort of exists under Minnesota law. For the purposes of this motion, however, the Court will assume that medical monitoring is a proper theory of recovery. Both parties agree that if medical monitoring is recognized as an independent tort, the seven part articulated in Redland Soccer Club, Inc. v. Dep’t of the Army,
A more interesting question is whether individual proof of causation or reliance is required under the Minnesota consumer fraud statutes. See Minn.Stat. §§ 325D.44, 325F.67, & 325F.69. This is a highly contentious issue. It is clear, however, that if proof of individual reliance is an essential element of Plaintiffs’ statutory fraud claim, the proposed class cannot be certified. See Castano,
A study of Minnesota law reveals that the Minnesota legislature intended to relax the requirements necessary to prove a consumer fraud violation. See State by Humphrey v. Philip Morris, Inc.,
In this case, the Court must determine if the relief sought is, in fact, injunctive, or instead a disguised request for compensatory damages. See Arch,
In sum, the Court finds that Plaintiffs’ request for the establishment of a cessation program is non-injunctive in nature, thereby requiring proof of individual reliance. As stated above, such individualized proof precludes class certification. See Castano,
With the issue of causation and reliance decided, the Court now turns to a discussion of additional individual issues that
It is clear that whether an individual is addicted to nicotine is a “highly individualistic inquiry” that would require “a mini-hearing on the merits of each individual’s case to determine injury.” Barnes,
Second, Plaintiffs assume that the affidavits would constitute conclusive proof of injury. In reality, even if a questionnaire could be used to establish a prima facie evidence of injury, Defendants would be permitted to cross-examine each class members regarding that alleged injury. See Barnes,
The third problem with Plaintiffs’ approach is that it asks the Court to find a distinction where none exists. The Court finds that there is nothing more than a semantic difference between the injury asserted by Plaintiffs — “having difficulty quitting” — and addiction. However phrased, addiction to cigarettes is the injury that Plaintiffs allege, it is one of the subjects upon which they claim to have been defrauded, and it is why Plaintiffs seek participation in a defendant-funded cessation program.
Addiction is also directly implicated by Plaintiffs. Plaintiffs’ papers are replete with allegations that Defendants defrauded Plaintiffs by denying the addictive nature of their products. (See Pis.’ Mem. in Supp. of Class Certification; Third Am.Compl.) Plaintiffs further argue Defendants should be held liable because they designed “personal choice out of the product.” (Pis.’ Mem. in Supp. of Class Certification at 22-23.) Plaintiffs explain that while they may have initially chosen to smoke, they did not “choose” to continue smoking because the addictive nature of Defendants’ products precluded free choice. (See id.) This argument has the unintended effect of placing addiction in issue. More specifically, to rebut Plaintiffs’ argument that they are, in essence, addicted to cigarettes, Defendants would have the opportunity to fully assess each and every Plaintiff to determine if they are, in fact, addicted to cigarettes. As stated above, such a process necessarily precludes class certification.
In addition to proof of addiction, each Plaintiff seeking participation in a medical monitoring program must establish injury.5
Even if fashioning individualized medical monitoring programs for each Plaintiff does not preclude class certification, the Court finds that assessment of each Plaintiffs smoking history is required in order to prove the type of injury to be remedied by medical
In order to prove the program he requires, a plaintiff must present evidence about his individual smoking history and subject himself to cross-examination by the defendant about that history. This element of the medical monitoring claim therefore raises many individual issues.
In addition, it is important to note that an increased risk of disease due to “mere exposure to a toxic substance” by itself is not a sufficient injury under Minnesota law. Werlein v. United States,
The second insurmountable problem precluding class certification in this ease is the individual nature of applicable defenses. While Defendants will presumably assert all defenses against all Plaintiffs, an individual inquiry is necessary to determine whether such defenses will be successful. Of particular concern in this regard is Defendants’ assertion of a statute of limitations defense against each and every Plaintiff. (See Defs.’ Mem. in Opp’n to Class Certification at 54-55.) Under Minnesota law, “[a] cause of action accrues and the statute of limitations begins to run when ... ‘some’ damage has occurred.” Herrmann v. McMenomy & Severson,
In addition to insurmountable predominance issues, Plaintiffs also cannot establish that the class method is the superior method of trying this lawsuit. Plaintiffs’ primary argument in support of a finding of superiority is that a class action is the only viable remedy for Plaintiffs given the enormous financial burden of independently pursuing litigation. (See Pis.’ Mem. in Supp. of Class Certification at 47.) Although it is difficult to ignore this reality, it is not a sufficient reason to “headlong plunge into an unmanageable and interminable litigation process.” Barreras Ruiz v. American Tobacco Co.,
b. Rule 28(b)(2) — Cohesiveness
Although not addressed by either party in their briefs, Plaintiffs also seek certification under Rule 23(b)(2), which requires that Defendants must have “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.” (See
B. Reservation of Individual Injury and Damage Claims
Plaintiffs’ Motion for Reservation of Individual Injury and Damage Claims is predicated on class certification. (See Pis.’ Mem. in Supp. of Reservation of Issues at 16-17.) Because the Court has denied Plaintiffs’ Motion for Class Certification, Plaintiffs’ motion to reserve issues must also be denied.
CONCLUSION
For the foregoing reasons, and upon all of the files, records, and proceedings herein, Plaintiffs’ Motions for Class Certification and Reservation of Issues are DENIED.
Accordingly, IT IS HEREBY ORDERED
that:
1. Plaintiffs’ Motion for Class Certification (Clerk Doe. No. 121) is DENIED.
2. Plaintiffs’ Motion for Reservation of
Issues (Clerk Doc. No. Ill) is DENIED.
Notes
. Although pleaded by Plaintiffs, Plaintiffs fail to address certification under Rule 23(b)(2) in their briefs. (See Third Am.Compl. 1112.) Nevertheless, because Plaintiffs pleaded certification under Rule 23(b)(2), the Court also addresses that issue.
. Because the Rule 23(b)(3) discussion is instructive and determinative of certification under Rule 23(b)(2), the Court analyzes Rule 23(b)(3) first.
. At oral argument Plaintiffs conceded that common law fraud requires individual proof of reliance. Plaintiffs also stated that although they allege common law fraud in their Third Amended Complaint, they do not intend to maintain that allegation if the class is certified. Nevertheless, because recovery under common law fraud requires a finding of individual reliance and because individual proof of reliance precludes class certification, the Court summarily denies class certification of Plaintiffs’ common law fraud theory of recovery. See M.H. v. Caritas Family Servs.,
. Defendants correctly point out that a "fraud-on-the-market” theory does not exist outside of the securities context absent direction from the legislature. (See Defs.' Mem. in Opp’n to Class Certification at 39-40.) It appears, however, that the Minnesota legislature has devised such a scheme in its consumer fraud statutes.
. There are various clinical and lay definitions of "addiction.” The crux of the issue here, however, is the nature of Plaintiffs’ alleged injury: the inability to stop smoking or remain smoke free without the assistance of a cessation program. It is the nature of the injury that demands individual inquiries, not the label attached to that injury. Therefore, whether couched in terms of "addiction,” “dependence,” or "having difficulty quitting,” the nature of the alleged injury, and the individual proof necessary to establish such an injury, is the same.
. Although Plaintiffs’ claim under the tort of medical monitoring cannot be maintained as a class action, the Court must now determine if Plaintiffs’ request for a medical monitoring is an appropriate class-wide remedy for Defendants' alleged violation of the Minnesota consumer protection statutes.
. As noted above, under the class definition, the term “smoker” includes any person who has smoked one cigarette manufactured, promoted, or distributed by Defendants within the class period.