Wilson v. Brush Wellman, Inc.Wilson v. Brush Wellman, Inc.
Lead Opinion
{¶ 1} We are asked to consider whether class certification under
I. Facts and Procedural History
{¶ 2} Appellees-plaintiffs are members of unions within the Northwestern Ohio Building and Construction Trades Council. Plaintiffs were all employed at various times by contractors at the Brush Wellman Elmore plant from the 1950s through the 1990s. The Brush Wellman Elmore plant produces beryllium alloy for use in industrial applications. Plaintiffs allege that they were exposed to beryllium dust and fumes that were generated by manufacture of the alloy. Beryllium exposure can cause a lung ailment called chronic beryllium disease and other ailments. Some individuals may never show symptoms or develop any disease, while others can have serious impairments or even die as a result of their exposure.
{¶ 3} On February 14, 2000, John Wilson and six other union members filed a claim against appellant-defendant Brush Wellman, Inc., alleging negligence, strict liability in tort, statutory product liability, and engagement in ultrahazardous activities. Specifically within the negligence claim, plaintiffs alleged that Brush Wellman had failed to properly control and contain the beryllium, failed to train plaintiffs and proposed class members, failed to provide a safe place of employment, failed to monitor working conditions, and failed to warn plaintiffs and proposed class members of the dangers of beryllium. The complaint sought a medical-screening program to detect beryllium sensitivity as well as punitive damages.
{¶ 4} Plaintiffs moved the trial court to certify a class that would include all Northwestern Ohio Building and Construction Trades Council union members who worked at the Elmore plant from 1953 through December 31, 1999. After a hearing, the trial court held that although the proposed class met the requirements under
{¶ 6} The trial court held that
{¶ 7} The trial court went on to recognize that
{¶ 8} Plaintiffs also failed to satisfy
{¶ 9} Plaintiffs appealed the denial of class certification. The appellate court, which considered certification under
II. Analysis
{¶ 11} The trial court’s determination that plaintiffs met the requirements of
{¶ 12} The appellate court, although it correctly described its charge under an abuse-of-discretion analysis, did not follow through with such an analysis. Rather than analyzing whether the trial court’s decision was “so palpably and grossly violative of fact or logic that it evidences not the exercise of will but the perversity of will, not the exercise of judgment but the defiance of judgment, not the exercise of reason but instead passion or bias,” Nakoff v. Fairview Gen. Hosp. (1996),
{¶ 13} In reversing the trial court, the appellate court focused its attention solely on
A. Medical Monitoring as Injunctive Relief
{¶ 14} The first step in this inquiry is to determine whether the relief sought by plaintiffs is injunctive in nature. Our analysis begins with plaintiffs’ motion for class certification. The memorandum in support of the motion discussed at length the appropriateness of class certification under
{¶ 15} Conversely, the appellate court considered it an error for the trial court to have held that class certification was inappropriate under
{¶ 16} In Marks v. C.P. Chem. Co., class certification was denied for individuals who had had foam insulation with toxic formaldehyde levels sprayed into their homes. The plaintiffs sought future diagnostic testing for class members in addition to damages. We declined to certify the class under
{¶ 17} More thorough guidance is provided from the federal courts, which have considered this issue on multiple occasions.
{¶ 19} Recognizing the multitudinous variations that these claims may take, the United States District Court for the Southern District of Ohio demarcated injunctive versus compensatory relief as follows:
{¶ 20} “Relief in the form of medical monitoring may be by a number of means. First, a court may simply order a defendant to pay a plaintiff a certain sum of money. The plaintiff may or may not choose to use that money to have his medical condition monitored. Second, a court may order the defendants to pay the plaintiffs’ medical expenses directly so that a plaintiff may be monitored by the physician of his choice. Neither of these forms of relief constitute^] injunctive relief as required by rule 23(b)(2).
{¶ 21} “However, a court may also establish an elaborate medical monitoring program of its own, managed by court-appointed court-supervised trustees, pursuant to which a plaintiff is monitored by particular physicians and the medical data produced utilized for group studies. In this situation, a defendant, of course, would finance the program as well as being required by the court to address issues as they develop during program administration. Under these circumstances, the relief constitutes injunctive relief as required by rule 23(b)(2).” Day v. NLO, Inc.,
{¶ 22} Court supervision and participation in medical-monitoring cases is a logical and sound basis on which to determine whether the action is injunctive. It has the added advantage of being a bright-line test, which can be readily and consistently applied. We hereby adopt that guideline for making such determinations.
{¶ 23} Plaintiffs in this action seek an order for Brush Wellman to “pay for a reasonable medical surveillance and screening program,” punitive damages in
B. Cohesiveness
{¶ 24} Plaintiffs’ class certification under
{¶ 25} The United States Supreme Court, discussing the (b)(3) predominance requirement, stated:
{¶ 26} “Predominance is a test readily met in certain cases alleging consumer or securities fraud or violations of the antitrust laws. * * * Even mass tort cases arising from a common cause or disaster may, depending upon the circumstances, satisfy the predominance requirement. The Advisory Committee for the 1966 revision of Rule 23, it is true, noted that ‘mass accident’ cases are likely to present ‘significant questions, not only of damages but of liability and defenses of liability, * * * affecting the individuals in different ways.’ Adv. Comm. Notes, 28 U.S.C.App. p. 697. And the Committee advised that such cases are ‘ordinarily not appropriate’ for class treatment. Ibid. But the text of the Rule does not categorically exclude mass tort cases from class certification * * *. The Committee’s warning, however, continues to call for caution when individual stakes are high and disparities among class members great. As the Third Circuit’s opinion makes plain, the certification in this case does not follow the counsel of caution. That certification cannot be upheld, for it rests on a conception of Rule 23(b)(3)’s predominance requirement irreconcilable with the Rule’s design.” Amchem Products, Inc. v. Windsor (1997),
{¶ 27} In Amchem, plaintiffs sought certification for a class of thousands seeking recovery for asbestos-related claims. The Supreme Court cited the following as impediments to the Amchem class’s cohesiveness: the large number of individuals, their varying medical expenses, disparate claims of those currently
{¶ 28} Similarly, in Barnes, the court held that cigarette smokers seeking to establish a class action against tobacco companies failed the cohesiveness requirement because “addiction, causation, the defenses of comparative and contributory negligence, the need for medical monitoring and the statute of limitations present too many individual issues to permit certification. As in Amchem, plaintiffs were ‘exposed to different * * * products, for different amounts of time, in different ways, and over different periods.’ * * * These disparate issues make class treatment inappropriate.” Barnes,
{¶ 29} The trial court in this case found sufficient “disparate factual circumstances here, precluding a Rule 23(B)(2) class action.” Although the court did not specifically address those disparate circumstances in the same breath as examining
{¶ 30} “[Ajbuse of discretion” connotes more than a mere error of law or judgment, instead requiring a finding that the trial court’s decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983),
{¶ 31} Rather than addressing the proposed class’s cohesiveness, the appellate court summarily determined that the class could be certified under
Judgment reversed.
Notes
.
. Section 2(B)(2)(e), Article IV, Ohio Constitution.
. It is puzzling how there could be an abuse of discretion by a trial court when the judge, in holding against plaintiffs, relies specifically upon the plaintiffs’ stance on the nature of their claim. As we have stated above, however, the appellate court did not properly engage in an abuse-of-discretion analysis.
.
Dissenting Opinion
dissenting.
{¶ 32} This is a simple case involving a request to certify a relatively innocuous class under
{¶ 33} While certification of the proposed class might give rise to a limited number of questions peculiar to individual class members, which is the case in virtually all class actions, those inquiries are not likely to vitiate class cohesiveness or diminish class unity to the detriment of absent members. In fact, most of the complexities that are alleged to exist in this case have been artificially inserted and tend to dissipate upon closer analysis. In my opinion, the denial of certification in this case embodies an overly restrictive application of
{¶ 34} I agree with the majority that the appropriate test for determining the injunctive nature of a medical-monitoring claim under
{¶ 35} I also agree that appellees’ position throughout the trial court proceedings was at best ambiguous with regard to the type of medical-monitoring program they were seeking. While appellees did argue in the alternative that they were seeking injunctive relief under
{¶ 36} As the majority points out, however, “a request for court supervision could be easily added by an amended complaint.” Consequently, if the court chose to conclude its analysis at this juncture, a final disposition of class certification would be needlessly postponed until after the complaint is amended upon remand and the trial court once again “finds the presence of disparate factual circumstances here, precluding a
{¶ 37}
{¶ 38} In finding that the class proposed for certification in this case “fails for lack of cohesiveness,” the majority draws heavily, if not exclusively, on Amchem Products, Inc. v. Windsor (1997),
{¶ 39} The enormousness and complexity of the endeavor in Amchem are hardly apparent from the majority’s minimizing depiction of that case as involving “a class of thousands seeking recovery for asbestos-related claims.” Amchem involved what is quite possibly the most adventuresome, incoherent, and unwieldy class ever proposed in the history of class-action litigation. The class proposed for certification in Amchem “potentially encompasse[d] hundreds of thousands, perhaps millions, of individuals * * * [who were], or some day may be, adversely affected by past exposure to asbestos products manufactured by one or more of 20 companies.” Id.,
{¶ 40} It is not surprising that great factual disparities would exist among the members of such a daunting and amorphous class. By definition, class members were individually exposed to any one of a plethora of variegated asbestos-containing products manufactured by 20 different companies and distributed to different employers throughout the greater United States while working different jobs, at different locations, in different states, under widely divergent circumstances. And these factual disparities were compounded by significant differences in state law, which governed many of the class claims and varied widely on such critical issues as the ability of plaintiffs exposed to asbestos but without manifest injuries to pursue claims for medical monitoring. Id.,
{¶ 41} Moreover, none of the parties in Amchem even attempted to argue that the action could actually be litigated. To the contrary, it was their hope and stated position that because the class was proposed for settlement purposes only, see
{¶ 42} This is a far cry from a class of 4,000 to 7,000 Ohio workers claiming exposure to beryllium at a single beryllium manufacturing plant in Elmore, Ohio. In terms of size, complexity, cohesiveness, and unity, comparing Amchem to this case is tantamount to comparing the expanse and intricacies of the entire universe to a marble.
{¶ 43} The majority’s reliance on Barnes is similarly flawed. As with Am-chem, the majority tends to minimize the awesome scope and complexity of the action in Barnes by referring to it as a case of “cigarette smokers seeking to establish a class action against tobacco companies.” Barnes involved a proposed class of over one million Pennsylvania residents who had smoked any of hundreds of different types of cigarettes manufactured by one or more of 16 major American tobacco companies that collectively sold 22.6 billion cigarettes annually in Pennsylvania. Id.,
{¶ 44} The majority relies on an introductory statement in Barnes that enumerates several general issues that the court believed would have to be determined on an individual basis with respect to each class member. In that statement, the court in Barnes summarized what it would conclude from its analysis, i.e., that “addiction, causation, the defenses of comparative and contributory negligence, the need for medical monitoring and the statute of limitations present too many individual issues to permit certification. As in Amchem,
{¶ 45} On its face, this quote appears to be significant because the present case also involves such generic issues as causation, the need for medical monitoring, and the like. But the majority fails to account for the succeeding discussion in Barnes, which clearly shows that class cohesion was found to be lacking in that case for reasons unique to cigarette litigation and inapposite to the matter at hand. In fact, the quoted paragraph from Barnes concluded with a footnote in which the court explained that “the individual issues raised by cigarette litigation often preclude class certification. * * * Significantly, no federal appeals court has upheld the certification [of] a class of cigarette smokers or reversed a District Court’s refusal to certify such a class.” Id.,
{¶ 46} The primary issue of nicotine addiction, which was found to be a “highly individualistic inquiry” and to play “a central role” in Barnes,
{¶ 47} The need for medical monitoring was also held to preclude class certification in Barnes for reasons unrelated to the present action. Thus, the court explained:
{¶ 48} “In order to state a claim for medical monitoring [under Pennsylvania law], each class member must prove that the monitoring program he requires is ‘different from that normally recommended in the absence of exposure.’ Redland [Soccer Club v. Dept. of the Army (1997),
{¶ 50} Similarly, the following rationale advanced in Barnes for its holding that the statute of limitations raises too many individual questions to permit certification is obviously peculiar to cigarette litigation:
{¶ 51} “Under Pennsylvania law, the statute of limitations starts running when the plaintiffs cause of action accrues; a medical monitoring claim accrues when the plaintiff suffers a ‘significantly increased risk of contracting a serious latent disease.’ Redland,
{¶ 52} While both the majority and the trial court opine that the statute of limitations will necessitate individual inquiries in this case, neither articulates which statute of limitations is applicable or what individual inquiries might arise. Presumably, they envision individual questions with regard to some discovery standard or form of equitable tolling of whatever statute is applicable. However, this court has held that a trial court abuses its discretion when it denies certification merely because a statute of limitations might bar the claims of some class members, particularly where the class consists of persons who must rely on equitable tolling to overcome a statute-of-limitations defense. See Hamilton v. Ohio Sav. Bank (1998),
{¶ 53} Finally, the Barnes court never actually held that any defense other „ than the statute of limitations was sufficient in itself to preclude certification. The court discussed four possible defenses: comparative negligence, contributory
{¶ 54} One would expect that if other cases are to serve as guidance in the present matter, they ought to involve the certification of fairly comparable classes. Yet no two classes could be more distinct from the present class in terms of cohesiveness than those proposed for certification in Amchem and Barnes. Those cases involved truly colossal classes of diffuse individuals asserting an entire universe of products-liability claims against all the major manufacturers of a potentially toxic product. They are markedly different from this case in terms of class size, the nature of the claims presented and the number of defendants against whom they are asserted, the geographical range of exposure, the multiplicity and variety of products to which individual class members were exposed, the relevance of past medical histories, and other important factors bearing on the issue of class cohesion.
{¶ 55} It would be far more appropriate to review
{¶ 56} In Cook v. Rockwell Internatl. Corp. (D.Colo.1993),
{¶ 57} The court first discussed the issue of differential and durational exposures under the commonality requirement of
{¶ 58} “Common questions include whether defendants’ operation of Rocky Flats involved an ultrahazardous activity, premising strict liability, and posed an unreasonable risk of harm, constituting negligence, and/or amounted to interference with the use or enjoyment of property constituting a nuisance. Defendants argue that proof with respect to the foregoing would vary from class member to class member because each claimant lived in the area at different times and would have been affected in a different way by operations of either Dow or Rockwell which varied over time. With these differences, defendants claim that the commonality requirement cannot be met.
{¶ 59} “However, although Dow and Rockwell may have operated the plant at different times and there may have been differing amounts of releases of hazardous substances affecting different individuals at different times, this does not negate that there are some questions of law or fact common to the two classes.” Id.,
{¶ 60} The court then discussed the issue of differential exposures with regard to each proposed class under
{¶ 61} “Dow further argues that any injunctive relief will not apply to the class as a whole because of the individualized nature of each individual’s claim. However, common evidence would be required to establish the level and nature of injury or disease by substances released from Rocky Flats and the causal connection, if any, between the release of the substances and any injuries or disease allegedly sustained. Therefore, despite the fact that there would be some issues of individual proof, injunctive relief in the form of medical monitoring would seem appropriate to the class as a whole.” Id.,
{¶ 62} With regard to
{¶ 63} In a subsequent decision, the court in Cook decertified the medical-monitoring class because, as it turned out, that class was seeking primarily money damages. However, the court adhered to its previous decision that the medical-monitoring class was sufficiently cohesive to warrant certification and retained certification of the property class. See Cook v. Rockwell Internatl. Corp. (D.Colo.1998),
{¶ 64} Cook is representative of various cases in which similar types of classes of toxic-tort claimants have been certified under
{¶ 66} The problem with the trial court’s analysis, however, is that Wellman is not applicable. And if Wellman is not applicable, the individual questions that are claimed to arise by virtue of its application disappear.
{¶ 67} Under Sopkovich, a property owner owes a duty to an independent contractor’s employees when the owner actively participates in the performance of the contracted-for work, and this occurs where the owner retains or exercises control over a critical variable in the workplace. Conceptually, “active participation” is not really an exception to the no-duty rule of Wellman, even though labeled as such in Sopkovich,
{¶ 68} The trial court’s basic mistake is reading Sopkovich too narrowly. According to the trial court, Sopkovich proposes that the element of control in the critical-variable analysis is satisfied only where the owner makes an express promise to perform a specific duty. In support of this assertion, the trial court
{¶ 69} “Ohio Edison’s participation in this case was clearly limited to the tasks of de-electrification of certain conductors in the work area and the dissemination of correct information concerning which conductors were energized and which had been de-activated. Therefore, as the court of appeals correctly recognized, Ohio Edison’s liability (if any) may only be predicated on a breach of a specific duty that Ohio Edison undertook to perform * *
{¶ 70} Contrary to the trial court’s assertion, however, this quote clearly does not establish a general requirement that an owner’s liability under the critical-variable analysis must be predicated on a breach of an express promise to perform a specific duty. It merely conveys that Ohio Edison exercised critical control in that case by virtue of the fact that it promised to perform a specific duty and that its liability, therefore, was limited to a breach of that duty. If the court meant that in all cases active participation may be found to exist only where a property owner expressly promises the performance of a specific duty, rather than where the owner retains or exercises control over a critical variable, it would have said precisely that. Simply put, an owner’s express promise to perform a duty is one way, but not the only way, to establish that the owner retained or exercised control over a critical variable in the workplace.
{¶ 71} In this case, the instrumentality of harm is the manufacture and processing of beryllium, the release and levels of which were at all times within the exclusive control of Brush Wellman. The alleged overexposure to beryllium in this case did not emanate from the execution of the contracted-for work. Instead, the critical acts that are alleged to have caused the need for medical monitoring are those of Brush Wellman alone. Under these circumstances, it is irrelevant whether Brush Wellman specifically agreed to retain or exercise control over the releases of beryllium dust and fumes, for it never relinquished control over this critical variable. Thus, Brush Wellman’s participation in this case gives rise to a common duty of care with respect to the proposed class.
{¶ 72} This is not to say that the present proposed class should be permanently certified. If it appears at any time that plaintiffs are actually seeking primarily money damages, the trial court may exercise its power to decertify the
{¶ 73} For all of the above reasons, I would find that the trial court abused its discretion with regard to the issue of class cohesiveness. I would remand the cause for further proceedings, including the submission of an amended complaint and the conditional certification of the proposed class.