Supreme Court of California Justia
Docket No. S088458
Lockheed Martin CorPeople v. Super. Ct.

Filed 3/3/03



IN THE SUPREME COURT OF CALIFORNIA






LOCKHEED MARTIN CORPORATION )
et al.,

Petitioners,

S088458

v.

Ct. App. 4/2 E025064

THE SUPERIOR COURT OF SAN

BERNARDINO COUNTY,

San Bernardino County

Respondent;

Super. Ct. No. RCV31496

ROSLYN CARRILLO et al.,

Real Parties in Interest.

___________________________________ )
)
BAUMAC CORPORATION,

Petitioner,

v.

Ct. App. 4/2 E025163

THE SUPERIOR COURT OF SAN

BERNARDINO COUNTY,

San Bernardino County

Respondent;

Super. Ct. No. RCV31496

ROSLYN CARRILLO,

Real Party in Interest.



1



PETRO-TEX CHEMICAL

CORPORATION et al.,

Petitioners,

v.

Ct. App. 4/2 E025181

THE SUPERIOR COURT OF SAN

BERNARDINO COUNTY,

San Bernardino County

Respondent;

Super. Ct. No. RCV31496

ROSLYN CARRILLO et al.,

Real Parties in Interest.

___________________________________ )



In this action for medical monitoring of the residents of a geographic area

affected by defendants’ toxic chemical discharge, the question before us is

whether plaintiffs, in moving for class certification, have met their burden of

demonstrating that common issues of law and fact predominate. We conclude

they have not. We therefore affirm the judgment of the Court of Appeal.

BACKGROUND

Plaintiffs Roslyn Carrillo et alia allege that defendants Lockheed Martin

Corporation et alia, in the course of conducting manufacturing operations in the

City of Redlands, beginning in 1954, discharged dangerous chemicals that

contaminated the city’s drinking water with harmful toxins and that this

contaminated water was used by a large portion of the city’s residents. In

December 1996, on behalf of themselves and persons similarly situated, plaintiffs

filed this action in the San Bernardino County Superior Court. Plaintiffs pray that

the court order defendants to fund a court-supervised program for the medical

monitoring of class members, and for punitive damages.

2



Plaintiffs moved for certification of a “medical monitoring” class and a

“punitive damage” class, defined identically as “People who were exposed to

water contaminated with any of the following chemicals: TCE, PCE, TCA, other

solvents, Ammonium Perchlorate, Perchlorate, other unknown rocket fuel

components and rocket fuel decomposition products, Beryllium, Carbon

Tetrachloride, Vinyl Chloride, Hydrazine (and Hydrazine derivatives),

Nitrosamines (and Nitrosamine derivatives), Epoxides (and Epoxide derivatives),

Triazines (and Triazine derivatives), at levels at or in excess of the dose equivalent

of the MCL (Maximum Contaminant Level),[1] or in excess of the safe dose where

there is no MCL, for some part of a day, for greater than 50% of a year, for one or

more years from 1955 to the present” within specified geographical limits. (Fns.

omitted.) Plaintiffs’ class definition indicated that review of relevant water quality

documents was ongoing and that the definition would be amended if additional

chemicals were identified.

One of plaintiffs’ attorneys declared that estimating the number of persons

in the class was difficult, because the University of Redlands is located within the

specified geographic boundaries, and persons residing, working or studying within

the defined area may qualify as class members. The attorney’s best estimate was

that the class includes between 50,000 and 100,000 people.

The trial court certified the classes, finding that plaintiffs had met their

burden of proof under Code of Civil Procedure section 382: “The Court finds that

the plaintiffs have a realistic chance of success on the merits. [¶] Specifically, the

Court finds that the plaintiffs have shown that there is a realistic chance that the


1

A measure based on the health dangers posed by oral ingestion of

contaminated water developed by the California Department of Health Services.

3

defendants caused contaminants to be leaked into the water table beneath

Redlands and that this contaminated water was served to the members of the

proposed class.” The court also found that there is an ascertainable class,

concluding it was “not necessary to determine the levels of toxins received by

each plaintiff at this time and that the geographic limits placed on the class are

reasonable and related to the alleged contamination.” The court concluded,

finally, that members of the class have a well-defined community of interest and

that common questions of law and fact predominate in the action.

Parties objecting to certification filed three writ petitions in the Court of

Appeal, which that court consolidated. Opining that individual issues raised by

plaintiffs’ claims “clearly predominate, making class certification inappropriate,”

the Court of Appeal granted a writ of mandate directing the trial court to vacate its

order certifying the classes. We granted plaintiffs’ petition for review.

DISCUSSION

I. Suitability of Medical Monitoring Claims for Class Treatment2

We first addressed the availability of medical monitoring as a form of

damages in Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965 (Potter).

There, residents of homes located near a landfill at which the dumping of toxic

substances was prohibited brought, as individual claimants, an action against a tire

manufacturing company that had dumped toxic waste materials, alleging that their

water supply had thereby been contaminated. The plaintiffs sought damages for,

inter alia, fear of cancer and the costs of medical monitoring. (See id. at pp. 975-

979.) Recognizing that “expenditures for prospective medical testing and

evaluation, which would be unnecessary if the particular plaintiff had not been

2

Seven justices join this part of the opinion.

4

wrongfully exposed,” are “ ‘detriment proximately caused’ ” by negligent disposal

of toxic substances (id. at p. 1005 & fn. 24, quoting Civ. Code, § 3333), we held

that “the cost of medical monitoring is a compensable item of damages where the

proofs demonstrate, through reliable medical expert testimony, that the need for

future monitoring is a reasonably certain consequence of a plaintiff’s toxic

exposure and that the recommended monitoring is reasonable” (Potter, supra, at

p. 1009).

“In determining the reasonableness and necessity of monitoring,” we stated,

“the following factors [(hereafter the Potter factors)] are relevant: (1) the

significance and extent of the plaintiff’s exposure to chemicals; (2) the toxicity of

the chemicals; (3) the relative increase in the chance of onset of disease in the

exposed plaintiff as a result of the exposure, when compared to (a) the plaintiff’s

chances of developing the disease had he or she not been exposed, and (b) the

chances of the members of the public at large of developing the disease; (4) the

seriousness of the disease for which the plaintiff is at risk; and (5) the clinical

value of early detection and diagnosis.” (Potter, supra, 6 Cal.4th at p. 1009.)

We have not previously addressed the prerequisites for class treatment of

medical monitoring claims. “Section 382 of the Code of Civil Procedure

authorizes class suits in California when ‘the question is one of a common or

general interest, of many persons, or when the parties are numerous, and it is

impracticable to bring them all before the court.’ The burden is on the party

seeking certification to establish the existence of both an ascertainable class and a

well-defined community of interest among the class members.” (Washington

5

Mutual Bank v. Superior Court (2001) 24 Cal.4th 906, 913 (Washington

Mutual).)3

Plaintiffs assert that separate litigation of each class member’s medical

monitoring claim would unnecessarily consume vast judicial resources and time.

They also urge us to repudiate the Court of Appeal’s suggestion that the presence

of individual issues generally precludes class certification in mass toxic exposure

cases, arguing any such categorical foreclosure would render our decision in

Potter meaningless. Defendants, on the other hand, emphasize that Potter’s

proximate cause rationale for recognizing medical monitoring costs as damages

logically extends only to such “increased or different monitoring” (Potter, supra, 6

Cal.4th at p. 1009, fn. 27) as a defendant’s conduct actually necessitates. In light

of their due process right to litigate each individual plaintiff’s actual toxic dosage

and relevant personal characteristics, defendants argue, individual issues in the

case predominate over common ones, such that the community of interest required

for class certification is lacking.

The certification question is “essentially a procedural one that does not ask

whether an action is legally or factually meritorious.” (Linder v. Thrifty Oil Co.

(2000) 23 Cal.4th 429, 439-440 (Linder).) “The community of interest

requirement [for class certification] embodies three factors: (1) predominant

common questions of law or fact; (2) class representatives with claims or defenses

typical of the class; and (3) class representatives who can adequately represent the


3

Code of Civil Procedure section 382 provides, in its entirety: “If the

consent of any one who should have been joined as plaintiff cannot be obtained,
he may be made a defendant, the reason thereof being stated in the complaint; and
when the question is one of a common or general interest, of many persons, or
when the parties are numerous, and it is impracticable to bring them all before the
court, one or more may sue or defend for the benefit of all.”

6

class.” (Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470.) Plaintiffs

acknowledge it is their burden to establish the requisite community of interest and

that “the proponent of certification must show, inter alia, that questions of law or

fact common to the class predominate over the questions affecting the individual

members.” (Washington Mutual, supra, 24 Cal.4th at p. 913.)

“The ultimate question in every case of this type is whether . . . the issues

which may be jointly tried, when compared with those requiring separate

adjudication, are so numerous or substantial that the maintenance of a class action

would be advantageous to the judicial process and to the litigants.” (Collins v.

Rocha (1972) 7 Cal.3d 232, 238; see also Linder, supra, 23 Cal.4th at p. 435.)

Defendants point to our statement that the Potter factors comprise

“substantial evidentiary burdens” for plaintiffs (Potter, supra, 6 Cal.4th at

p. 1009), as if to suggest the factors constitute novel proof requirements applicable

only in medical monitoring cases. Not so. Potter recognizes “not a separate tort

but simply an item of damages that cannot be awarded until liability is established

under a traditional tort theory.” (San Diego Gas & Electric Co. v. Superior Court

(1996) 13 Cal.4th 893, 914, fn. 18, citing Potter, supra, at pp. 1006-1007.) So to

observe does not gainsay the high court’s observation that “limitations and

cautions [like the Potter factors are] important—and integral—parts of the state-

court decisions that permit asymptomatic plaintiffs a separate tort claim for

medical monitoring costs.” (Metro-North Commuter R. Co. v. Buckley (1997) 521

U.S. 424, 444; see also id. at pp. 440-441, citing, inter alia, Potter, supra, at

p. 1010, fn. 28.)

As defendants acknowledge, Potter simply specified for the medical

monitoring context the traditional requirement that a plaintiff prove causation of

damage. Thus, while in Potter we “ma[de] it clear that the monitoring must be

‘additional or different’ ” than that previously required (Gutierrez v. Cassiar

7

Mining Corp. (1998) 64 Cal.App.4th 148, 156), we just as clearly stated that, “if

additional or different tests and examinations are necessitated as a result of the

toxic exposure caused by the defendant, then the defendant bears full

responsibility for their costs” (Potter, supra, 6 Cal.4th at p. 1012, fn. 31).

Defendants assert that “the required proof under Potter” includes “that each

of the elements of the claims asserted on behalf of proposed class members, and

all applicable defenses, are capable of common proof.” Again, not so. We

consistently have recognized, before and after Potter, that “the fact that each

member of the class must prove his [or her] separate claim to a portion of any

recovery by the class is only one factor to be considered in determining whether a

class action is proper.” (Vasquez v. Superior Court (1971) 4 Cal.3d 800, 809.)4

In sum, 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. Accordingly, we shall review the certification

ruling before us in light of the established standards for class certification

generally.


4

Defendants also assert that their having pled an affirmative defense of

untimeliness makes class certification inappropriate. Notice is the only individual
issue defendants identify as being raised by that defense, however; i.e., they assert
that when each plaintiff received actual notice of his or her claim will vary from
individual to individual. No California court has declined to certify a class action
specifically because of a statute of limitations defense. Defendants ultimately
concede the point, calling “noncontroversial” the proposition that a limitations
defense does not categorically preclude class certification.

8

II. Plaintiffs Demonstrated Presence of Some Common Issues5

As indicated, in granting plaintiffs’ certification motion, the trial court

expressly found that common questions predominate and determined that any

individual issues that might arise at the time of trial are manageable. “Because

trial courts are ideally situated to evaluate the efficiencies and practicalities of

permitting group action, they are afforded great discretion in granting or denying

certification.” (Linder, supra, 23 Cal.4th at p. 435.) Nevertheless, “we must

examine the trial court’s reasons for [granting] class certification.” (Id. at p. 436;

see also Washington Mutual, supra, 24 Cal.4th at p. 914.) In particular, we must

consider whether the record contains substantial evidence to support the trial

court’s predominance finding, as a certification ruling not supported by substantial

evidence cannot stand. (Linder, supra, at pp. 435-436; see also Richmond v. Dart

Industries, Inc., supra, 29 Cal.3d at p. 470.)

At the outset, the record reveals that plaintiffs’ claims sound generally in

negligence, entailing proof of the “well-known elements of any negligence cause

of action, viz., duty, breach of duty, proximate cause and damages.” (Artiglio v.

Corning Inc. (1998) 18 Cal.4th 604, 614.)6 Addressing whether questions

common to the class predominate over questions affecting members individually,

therefore, required the trial court to consider these elements.

Whether defendants in disposing of their chemical wastes owed a duty of

care to the class members, i.e., to the persons who lived for the specified period

within the specified geographical area, is a question of law for the court. (Parsons


5

Seven justices join this part of the opinion.

6

The operative fifth amended complaint purports to state causes of action for

negligence, negligence per se, strict liability for ultrahazardous activity,
declaratory relief, and injunctive relief.

9

v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472.) Defendants proffer no reason

why a court would need to engage in individualized analysis in order to answer

that question. The trial court rationally could conclude that the duty element of

plaintiffs’ claims will be susceptible to common proof.

Additionally, how and when defendants disposed of toxic chemicals and

whether defendants’ conduct was negligent are, as the Court of Appeal

recognized, significant common issues of fact in this case. The parties already

have presented extensive evidence (including well sampling and other

hydrological data) about the pattern and degree of contamination of Redlands

groundwater with various chemicals and the potential health consequences to

humans of exposure to those chemicals. Defendants have conceded that common

issues are present in the case because defendants’ acts allegedly are the same with

regard to each plaintiff. Thus, the record also contains substantial evidence

supporting the conclusion that the breach of duty element of plaintiffs’ claims will

be susceptible to common proof.7

As noted, when first recognizing the medical monitoring remedy in Potter,

we focused on the causation and damages elements of such claims, stating that in

order to recover plaintiffs must demonstrate, through reliable medical expert

testimony, both that the need for future monitoring is a “reasonably certain

consequence” of toxic exposure and that the monitoring sought is “reasonable.”

(Potter, supra, 6 Cal.4th at p. 1009.) Defendants take the position that plaintiffs in

moving for class certification have failed to demonstrate either that the causation


7

As the Court of Appeal recognized, moreover, whether defendants’ conduct

was malicious or otherwise such as to justify an award of punitive damages is a
significant common issue of fact in the case.

10

(“reasonably certain consequence”) or the damages (“reasonable” monitoring)

elements of their medical monitoring claims will be susceptible to common proof.

Plaintiffs clearly are in a position to address some aspects of causation and

damages on a class basis. Defendants concede, for example, that “the toxicity of

the chemicals” allegedly discharged and “the seriousness of [any] disease for

which the plaintiff is at risk”—both factors discussed in Potter, supra, 6 Cal.4th at

page 1009—would be susceptible to common proof. And as the Court of Appeal

noted, “the amount of contaminants that entered the groundwater; and, when,

where, and at what levels were contaminants pumped by the city’s wells entered

into the domestic water system” are significant common issues of fact in this case.

Plaintiffs contend that, on the theory of liability they intend to present, each

individual’s exact dosage of each discharged chemical will not be relevant.

According to expert testimony already in the record, plaintiffs argue, “anyone

living or working in the area of contamination for at least six months has a

plausible claim for medical monitoring.” Class membership, plaintiffs stress, is

restricted by definition to persons who have received a specified “medically

significant” minimum dosage “for some part of a day, for greater than 50% of a

year, for one or more years from 1955 to the present” within specified

geographical boundaries. All who meet that definition, plaintiffs propose to prove,

“will require a generalized monitoring program for the diseases caused by such

exposure.” On such a theory, plaintiffs argue, specific individual dosages above

the specified minimum are not relevant and, therefore, “the significance and

extent” of toxic exposure (Potter, supra, 6 Cal.4th at p. 1009) will involve largely

common proof.

The trial court in ruling on the certification motion apparently took

plaintiffs’ minimum dosage liability theory into account, stating that “proof of the

[actual] dosage received [by each plaintiff] is not necessary at this time.” Strictly

11

speaking, that is correct, as in ruling on certification a court does not “ask whether

[plaintiffs’] action is legally or factually meritorious.” (Linder, supra, 23 Cal.4th

at pp. 439-440.) Moreover, nothing in Potter precludes liability premised on a

theory that a defendant’s negligence has necessitated increased or different

monitoring for all, or nearly all, exposed individuals, as long as the need is “a

reasonably certain consequence of the exposure.” (Potter, supra, 6 Cal.4th at

p. 1006.) That a class of water consumers could, under particularly egregious

circumstances, demonstrate that everyone who drank from a polluted municipal

water system over a specified period is at significant risk for having received a

dose sufficient to cause serious disease and, therefore, needs special monitoring, is

not inconceivable. Thus, on an appropriate theory, even dosage issues may be

susceptible of common proof.



III. Plaintiffs Failed to Demonstrate Common Issues Predominate



Plaintiffs’ burden on moving for class certification, however, is not merely

to show that some common issues exist, but, rather, to place substantial evidence

in the record that common issues predominate. (Washington Mutual, supra, 24

Cal.4th at p. 913.) As we previously have explained, “this means ‘each member

must not be required to individually litigate numerous and substantial questions to

determine his [or her] right to recover following the class judgment; and the issues

which may be jointly tried, when compared with those requiring separate

adjudication, must be sufficiently numerous and substantial to make the class

action advantageous to the judicial process and to the litigants.’ ” (Id. at pp. 913-

914, quoting City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 460.)



While the record on certification undoubtedly contains substantial evidence

that many Redlands residents were exposed to toxic chemicals during the class

period, evidence of exposure alone cannot support a finding that medical

monitoring is a reasonably necessary response. (Potter, supra, 6 Cal.4th at

12

p. 1009.) As defendants emphasize, that all plaintiffs exposed to Redlands water

received identical dosages of any toxic chemicals it contained is unlikely. On the

one hand, duration of exposure to polluted water will vary among class members,

as the class would include numerous people who lived in Redlands for a relatively

short period of time during the more than 40-year class period. On the other hand,

as the Court of Appeal observed, severity of exposure among class members may

vary according to the amount of water they used.

Examination of the instant record reveals that plaintiffs have not provided

substantial evidence that they are in a position to resolve possible dosage issues

with common proof. Each class member’s actual toxic dosage would remain

relevant to some degree even if plaintiffs’ “minimum dosage” liability theory

ultimately were to prove viable. Membership in the class as plaintiffs have

defined it requires, not merely exposure to water contaminated with one or more

of the chemicals listed in the definition, but exposure “at levels at or in excess of

the dose equivalent of the MCL (Maximum Contaminant Level), or in excess of

the safe dose where there is no MCL” for at least the defined minimum period of

time. (Fns. omitted.) But plaintiffs’ experts did not unqualifiedly opine that all

who resided in Redlands for the defined period likely received such dosages. Dr.

Dahlgren was “asked to assume that there [was] a clinically significant exposure to

these chemicals among members of a group that is geographically defined as

residing within Redlands.” (Italics added.) And Dr. Teitelbaum’s opinion that

“risk of disease due to the toxins is spread over the whole exposed population”

was qualified with the observation that “[t]he outcome of the exposure . . . is

determined by many factors including the dose, and the genetic makeup of the

target individual.”

Moreover, regardless of how a particular medical monitoring class might be

defined, a plaintiff must demonstrate that “the need for future monitoring is a

13

reasonably certain consequence of [the] toxic exposure” (Potter, supra, 6 Cal.4th

at p. 1009), i.e., that the plaintiff faces a “significant but not necessarily likely risk

of serious disease” (id. at pp. 1008-1009). For the following reasons, we conclude

plaintiffs have not placed in the record sufficient evidence to warrant the trial

court’s concluding that they are likely to be able to make that demonstration with

common proof.

Plaintiffs’ class definition refers to at least 12 different toxic substances,

and plaintiffs contend that, as a consequence of defendants’ toxic dumping, each

class member now requires special monitoring for numerous potential medical

conditions. In linking their class definition to the toxic dumping and water

pollution evidence submitted in support of the certification motion, plaintiffs

relied primarily on the testimony of two medical experts, Dr. James Dahlgren and

Dr. Daniel Teitelbaum. We previously have held that reliable medical expert

testimony may establish the reasonableness and necessity of medical monitoring.

(Potter, supra, 6 Cal.4th at p. 1009.) “Expert medical opinion, however, does not

always constitute substantial evidence . . . .” (Place v. Workmen’s Comp. App. Bd.

(1970) 3 Cal.3d 372, 378; see, e.g., Mann v. Cracchiolo (1985) 38 Cal.3d 18, 40

[medical malpractice action]; Kerr v. Bock (1971) 5 Cal.3d 321, 324 [res ipsa

loquiter case]; Zemke v. Workmen’s Comp. App. Bd. (1968) 68 Cal.2d 794, 798

[disability apportionment appeal].) No reason appears why in the medical

monitoring context we should depart from our settled understanding that “[a]n

expert’s opinion which rests upon guess, surmise or conjecture, rather than

relevant, probative facts, cannot constitute substantial evidence” (Garza v.

Workmen’s Comp. App. Bd (1970) 3 Cal.3d 312, 318, fn. 3).

Dr. Dahlgren testified in conclusionary fashion that “[a]ll persons who are

at risk . . . should be in [a] monitoring program.” He testified generally that

“chemical exposure in Redlands has resulted in an excess of certain cancers” and

14

“[e]arly diagnosis and treatment for these cancers would improve the prospect of

cure or long term remissions,” but he acknowledged that “[t]he precise dose of

exposure experienced by each person cannot be determined exactly because of

variability in the delivery of the water.” (Italics added.) He also conceded that

“safe levels of exposure in such a setting are not known precisely . . . .” (Italics

added.)

Dr. Teitelbaum opined that “any person who fulfills the class definition

proposed in this case is at greater risk of developing cancer and other serious

illness which is known by medical scientists and toxicologists to be associated

with the chemicals at issue in this case.” But neither Dr. Dahlgren nor Dr.

Teitelbaum categorically stated that mere qualification under the class definition

demonstrates a need for medical monitoring irrespective of actual chemical

dosages received.

We previously have noted that courts confronting medical monitoring

claims may consider “the relative increase in the chance of onset of disease in the

exposed plaintiff as a result of the exposure, when compared to (a) the plaintiff’s

chances of developing the disease had he or she not been exposed, and (b) the

chances of the members of the public at large of developing the disease” (Potter,

supra, 6 Cal.4th at p. 1009). Indisputably, a member of the public’s chances of

developing any particular disease would be susceptible to common proof, but each

individual plaintiff’s chances of developing that particular disease, had he or she

not been exposed as alleged, may not be.

Taken as a whole, the medical expert testimony plaintiffs presented in

support of their motion for class certification is 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. As

15

the record stands, therefore, the causation and damages issues raised by plaintiffs’

claims must be counted among those that would be litigated individually, even if

the matter were to proceed on a class basis. Especially when considered in light of

the trial court’s finding that the class consists of an estimated 50,000 to 100,000

people, that conclusion fatally undermines the trial court’s predominance

calculation.

In light of the foregoing, we conclude that the trial court’s predominance

finding is not supported by the record. The questions respecting each individual

class member’s right to recover that would remain following any class judgment

appear so numerous and substantial as to render any efficiencies attainable through

joint trial of common issues insufficient, as a matter of law, to make a class action

certified on such a basis advantageous to the judicial process and the litigants.

(Washington Mutual, supra, 24 Cal.4th at pp. 913-914.)

IV. Conclusion

Although the Court of Appeal erred to the extent it stated or implied that no

action in which plaintiffs seek medical monitoring as a remedy may ever

appropriately be certified for class treatment, we agree with the court that the trial

court abused its discretion in granting the instant certification motion. (Linder,

supra, 23 Cal.4th at pp. 435-436.)

DISPOSITION

The judgment of the Court of Appeal is affirmed.

WERDEGAR, J.

I CONCUR:

KENNARD, J.

16











CONCURRING OPINION BY BROWN, J.

I agree that there is “no per se or categorical bar” to the class treatment of

medical monitoring claims (lead opn., ante, at p. 8), and that there are some

common issues (see lead opn., ante, at pp. 9-12). I also agree that “the trial court

abused its discretion in granting the instant certification motion” because plaintiffs

failed to establish that the common issues predominate. (Id. at p. 16.) Thus, I join

in parts I and II of the lead opinion and its disposition. I, however, cannot join

part III of the lead opinion because it fails to adequately convey the complexity of

plaintiffs’ claims and, as a result, fails to acknowledge many of the individual

issues that must be resolved in order to decide the proposed class action. Indeed,

upon considering the full breadth of plaintiffs’ claims in light of the record, I do

not believe any court could reasonably conclude that they are suitable for class

treatment.

I

To fully appreciate the complexity of plaintiffs’ proposed class action, I

recount in greater detail the relevant facts.

In 1954, Grand Central Rocket Company (GCRC) constructed a facility

used for the production, testing and disposal of rocket propellants (the rocket

facility) in the Redlands/Crafton area. In 1958, defendant Petro-Tex Chemical

Corporation (Petro-Tex)—which was jointly owned by defendants Food

Machinery and Chemical Corporation (FMC) and Tennessee Gas Transmission

1

Corporation (now El Paso Tennessee Pipeline Co.; Tenneco)—acquired GCRC

and the rocket facility. In a series of transactions from 1960 to 1961, defendant

Lockheed Martin Corporation (Lockheed) acquired GCRC and the facility.

Lockheed manufactured, assembled and tested solid fuel rockets at the facility—

which covered approximately 400 acres—until 1974. From the opening of the

rocket facility in 1954 to its closing in 1974, these defendants discharged toxic

substances throughout the facility’s 400-acre property and contaminated the water

used by surrounding residents.

In 1979, Lockheed leased 66 acres of the property to Seven W Enterprises,

Inc. (Seven W). Seven W then acquired another 24 acres of adjacent property

from the City of Redlands and constructed an industrial park. Since the creation

of this park, tenants—specifically, defendants Baumac Corporation (Baumac),

Highland Supply Corporation (Highland) and Palco Communications, Inc.

(Palco)—have discharged toxic substances around the park and further

contaminated the water used by surrounding residents.

As a result of this discharge of toxic substances, plaintiffs filed this class

action against seven defendants—Petro-Tex, FMC, Tenneco, Lockheed, Baumac,

Highland and Palco. Plaintiffs did not seek compensatory damages. Instead, they

limited their recovery to “[s]pecial damages . . . to establish a fund for periodic

medical monitoring and medical testing for each Plaintiff and Class member” and

“punitive and exemplary damages.” Consistent with this limitation, plaintiffs

identified two potential classes—a medical monitoring class and a punitive

damages class.

In their motion to certify, plaintiffs defined the class as “[p]eople who were

exposed to water contaminated with” certain toxic substances “at levels at or in

excess of the dose equivalent of the MCL (Maximum Contaminant Level), or in

excess of the safe dose where there is no MCL, for some part of a day, for greater

2

than 50% of a year, for one or more years from 1955 to the present, within” certain

“geographical boundaries” which encompassed the City of Redlands. Plaintiffs

estimated the class contained 50,000 to 100,000 members and identified over 12

toxic substances discharged by defendants, including TCE, PCE, TCA,

ammonium perchlorate, perchlorate, beryllium, carbon tetrachloride, vinyl

chloride, hydrazine (and hydrazine derivatives), nitrosamines (and nitrosamine

derivatives), epoxides (and epoxide derivatives) and triazines (and triazine

derivatives). Plaintiffs also identified over 40 different medical conditions that

may require medical monitoring due to exposure to those substances.1

The trial court certified both the medical monitoring and punitive damages

classes. The Court of Appeal reversed, concluding that the individual issues raised

by plaintiffs’ claims “clearly predominate” over the common issues.


1

According to plaintiffs, exposure to these substances may increase the risk

for developing the following medical conditions: “1. Cancer of all types. 2.
Respiratory effects including asthma, COPD, rhinitis, sinusitis, and bronchitis. 3.
Neurological deficits including headache syndromes, encephalopathy, neuropathy,
movement disorders, color blindness, learning disabilities and emotion lability. 4.
Reproductive damage including sperm damage, miscarriages, infertility and birth
defects. 5. Immunologic problems including scleroderma, systemic lupus,
erythematosis, rheumatoid arthritis, Raynaud’s phenomenon, inflammatory bowel
disease, mixed connective tissue disease and fibromyalgia. 6. Neuroendocrine
dysregulation including hypothyroidism, menstrual irregularities, decreased libido,
chronic fatigue syndrome and multiple chemical sensitivity. 7. Psychiatric
problems including post traumatic stress disorder, depression and anxiety. 8. Skin
problems including eczema, chloracne, contact dermatitis, defatting dermatitis and
allergic dermatitis. 9. Cardiac effects including arteriosclerosis, dysrhythmias,
cardiac malformations and cardiomyopathy. 10. Hematologic damage including
thrombocytopenia, anemia and leukopenia.”

3

II

Plaintiffs seek to certify a class consisting of all people exposed to a

specified dose of one of at least 12 different toxic substances for a certain period

of time from 1955 to the present, within a geographical area encompassing the

City of Redlands. They allege that each class member—estimated to number

50,000 to 100,000—may require medical monitoring for over 40 medical

conditions. Plaintiffs seek to recover medical monitoring damages from seven

different defendants that dumped these chemicals in various locations on a 400-

plus-acre property over a time period of 40-plus years. Given the size and

complexity of these class claims, I do not believe a court could reasonably

conclude that the common issues predominate and certify the proposed class.

“[T]he cost of medical monitoring is a compensable item of damages where

the proofs demonstrate, through reliable medical expert testimony, that the need

for future monitoring is a reasonably certain consequence of a plaintiff’s toxic

exposure and that the recommended monitoring is reasonable.” (Potter v.

Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1009 (Potter).) Under this

standard, a plaintiff may not obtain medical monitoring “based ‘solely upon a

showing of an increased but unquantified risk resulting from exposure to toxic

chemicals.’ ” (Ibid.) Rather, “toxic exposure plaintiffs may recover ‘only if the

evidence establishes the necessity, as a direct consequence of the exposure in

issue, for specific monitoring beyond that which an individual should pursue as a

matter of general good sense and foresight.’ ” (Ibid., italics added.) The

availability of monitoring therefore depends on the particular need of a particular

plaintiff. (See ibid.)

Thus, a member of plaintiffs’ proposed class may obtain medical

monitoring damages for a medical condition only if that member’s exposure to the

chemicals dumped by defendants necessitate more monitoring than he or she

4

would otherwise need. (See Potter, supra, 6 Cal.4th at p. 1009.) To order

additional medical monitoring, a trier of fact must therefore determine: (1) the

extent of monitoring that the class member would have required for that medical

condition absent exposure; and (2) whether the class member needs any additional

monitoring due to exposure to the substances discharged by defendants.

Applying this standard of causation, the majority concludes that “the

medical expert testimony plaintiffs presented in support of their motion for class

certification is 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.” (Lead opn., ante, at p. 15.) In reaching this

conclusion, the majority focuses on plaintiffs’ failure to show that dosages issues

and the need for medical monitoring are susceptible to common proof. (See lead

opn., ante, at pp. 13-15.) I agree with the majority so far as it goes. But the

majority fails to fully consider the extraordinary complexity of plaintiffs’ claims in

its analysis and, as a result, understates the deficiencies of plaintiff’s showing in

support of class certification.

As a threshold matter, determining each defendant’s liability to the class for

medical monitoring damages requires the resolution of a staggering number of

complex individual issues. First, determining the extent of monitoring required by

each class member absent exposure poses a highly individualized inquiry. A class

member’s risk of developing a medical condition depends on numerous factors

unique to that member, such as age, gender, lifestyle, fitness, preexisting

conditions, exposure to hazardous substances not released by defendants, etc.

Given that plaintiffs identify over 40 medical conditions that may necessitate

additional monitoring for approximately 50,000 to 100,000 individuals, the

number and complexity of these individual determinations is overwhelming.

5

Second, determining whether each class member requires additional

monitoring due to exposure requires individual litigation of numerous and

substantial questions. A class member’s need for additional monitoring hinges on

the particular traits or characteristics of each class member. As plaintiffs’ own

experts acknowledge, human reaction to environmental and other hazards varies

from individual to individual. It is directly affected not only by the individual’s

dosage or extent of exposure, but also by preexisting conditions, genetic makeup,

age, gender, size, nutrition, adaptation and acclimatization to geographic and

climatological factors, lifestyle, family history, social history, occupational history

and personal health history. Thus, whether an individual class member needs

additional medical monitoring depends heavily on numerous factors specific to

that individual—and not just the dosage of toxic substances received. Moreover,

the clinical value of early detection and diagnosis may vary significantly

depending on the medical condition at issue and the individual characteristics of

each class member. Given the number of hazardous substances involved, the

number of medical conditions implicated, and the size of the class, resolution of

the many individual issues necessary to establish each individual class member’s

entitlement to additional monitoring due to exposure would be a herculean task.

Because determining “the basic issue of defendant[s’] liability to the purported

class” requires the resolution of countless issues specific to each class member,

class treatment is not appropriate. (City of San Jose v. Superior Court (1974) 12

Cal.3d 447, 463 (City of San Jose).)

Aside from the individualized inquiries necessary to establish liability, the

individualized inquiries necessary to establish the extent of additional medical

monitoring required by those class members who prove liability are also numerous

and substantial. To determine the extent of monitoring required, the court would

have to ascertain the significance and extent of each member’s exposure to the

6

chemicals dumped by defendants. Because of the number of chemicals involved,

their potential synergistic effects, the duration of dumping, the size of the area in

which the dumping occurred, and the intricacies of hydrogeology, this task

depends on the resolution of numerous questions specific to each class member.

Consequently, individual questions dominate such a determination. Finally, the

resolution of various affirmative defenses—i.e., statute of limitations—also

requires separate adjudication for each class member.

Viewed altogether, the individual questions that must be resolved in order

to resolve plaintiffs’ claims are staggering in both number and complexity.

Indeed, “subsequent to the rendering of any class judgment which determined in

plaintiffs’ favor whatever questions were common to the class,” the trial court in

this case would have to conduct tens of thousands of complex individualized trials

over causation, damages and affirmative defenses. (Vasquez v. Superior Court

(1971) 4 Cal.3d 800, 809.) Invocation of the class action mechanism under these

circumstances would not promote efficiency. Rather, it would “deprive either the

defendant[s] or the members of the class—or both—of a fair trial.” (See City of

San Jose, supra, 12 Cal.3d at p. 462.)

The possible creation of subclasses makes no difference in this case. While

subclasses may sufficiently minimize the individual issues in certain cases, we

have long recognized that “there are limits outside of which the subclassification

system ceases to perform a sufficiently useful function to justify the maintenance

of the class action.” (City of San Jose, supra, 12 Cal.3d at p. 463, fn. 10.) This is

such a case. Plaintiffs allege that seven different defendants dumped over 12

chemicals at multiple locations on a 400-plus-acre property over 40-plus years. In

doing so, these defendants allegedly harmed 50,000 to 100,000 people with

different characteristics by placing them at greater risk for contracting over 40

possible medical conditions. “Given the number of variables involved in this

7

case,” the potential number of subclasses is mind-boggling. (Kennedy v. Baxter

Healthcare Corp. (1996) 43 Cal.App.4th 799, 813.) Class certification under

these facts would therefore defeat “the purposes served by class action litigation.”

(Ibid.)

In this respect, O’Connor v. Boeing North American, Inc. (C.D.Cal. 2000)

197 F.R.D. 404 (O’Connor II) is instructive. In O’Connor v. Boeing North

American, Inc. (C.D Cal. 1998) 184 F.R.D. 311, 316 (O’Connor I) and

O’Connor II, the plaintiffs alleged that the defendants discharged radioactive and

nonradioactive hazardous substances at four facilities. (See O’Connor I, at p.

316.) This discharge allegedly created a continuing health hazard for people

living near these facilities. (Id. at pp. 316-317.) The plaintiffs sought to certify

three classes. As relevant here, class I consisted of “ ‘[a]ll persons: (1) who

presently reside or work in the Contamination Area or who, at any time since

1946, have resided or worked in the Contamination Area; and (2) who have not

been diagnosed with a type of cancer or other serious illness or disease which may

be attributed to exposure to the radioactive contaminants and/or hazardous, non-

radioactive substances released from’ ” the facilities. (Id. at p. 317.) Like

plaintiffs, the O’Connor plaintiffs sought to establish a medical monitoring

program for the class funded by the defendants. (Ibid.)

Although the federal district court initially certified the medical monitoring

class (see O’Connor I, supra, 184 F.R.D. at p. 339), it later decertified the class

(see O’Connor II, supra, 197 F.R.D. at p. 413). In doing so, the court not only

cited the “individualized focus of the statute of limitations defense” (ibid.), but

also admitted that it had “underestimated the difficulty of applying the

individualized factors required by” Potter “to the Class I medical monitoring

claim in its” order certifying the class (id. at p. 413, fn. 6).

8

These conclusions are especially cogent in this case, given that plaintiffs’

class claims and the class claims in O’Connor II are analogous in their breadth and

complexity. Moreover, the reasoning of the court in O’Connor II is even more

persuasive here because plaintiffs’ proposed medical monitoring class is even

broader than the class proposed in O’Connor II. (See O’Connor I, supra, 184

F.R.D. at p. 317 [the plaintiffs’ class expressly excluded those persons who have

been diagnosed with a medical condition attributable to exposure].) Indeed, other

courts have refused to certify medical monitoring classes in analogous cases using

similar reasoning. (See, e.g., Goasdone v. American Cyanamid Corp. (Goasdone)

(N.J. Super. 2002) 808 A.2d 149, 172-173 [refusing to certify a medical

monitoring class consisting of all people who worked at a textile plant for 30 days

or more from 1946 until 1983 and were exposed to benzidine-related dyes

resulting in an increased risk of contracting bladder cancer because the individual

issues predominated].)

The federal cases cited by plaintiffs in support of class certification are

inapposite. Even assuming these cases are still persuasive (see Goasdone, supra,

808 A.2d at p. 169), all of them involved simpler facts and claims.2 By contrast,

2

(See, e.g., Friends for All Children, Inc. v. Lockheed Aircraft Corp. (D.C.

Cir. 1984) 746 F.2d 816, 819-820 [alleging that a single defendant negligently
manufactured an aircraft that crashed, potentially causing a single neurological
development disorder in no more than 149 children and seeking the creation of a
medical monitoring fund for approximately 40 children]; Day v. NLO (S.D.Ohio
1994) 851 F.Supp. 869, 874-875 [alleging that a plant exposed visitors and
workers to hazardous materials and seeking to certify a class of “workers and
frequenters” to the plant]; Yslava v. Hughes Aircraft Co. (D.Ar. 1993) 845 F.Supp.
705, 707-708, 712 [alleging that a single defendant disposed of hazardous wastes
in a single location over 29 years and identifying “24 separate subgroups
representing precise geographic areas where plaintiffs lived, worked or went to
school”]; Boggs v. Divested Atomic Corp. (S.D.Ohio 1991) 141 F.R.D. 58, 60-62
[alleging that a single plant released radioactive substances and seeking to certify a


(footnote continued on next page)

9

plaintiffs’ class claims are incredibly complex even for a mass tort action.

Permitting certification under these facts would, as a practical matter, make all

medical monitoring claims subject to class treatment. Such a result would open

the “floodgates of litigation” notwithstanding our carefully crafted decision in

Potter. (Potter, supra, 6 Cal.4th at p. 1009.) Rather than do so, I believe other

procedures traditionally used to manage complex litigation, like consolidation and

coordination, may be more appropriate. (See Rose v. Medtronics, Inc. (1980) 107

Cal.App.3d 150, 155 [“consolidation of actions is the preferred procedure for

disposition of ” mass tort cases].)

Accordingly, I join the lead opinion in affirming the judgment of the Court

of Appeal.

BROWN, J.

WE CONCUR:

BAXTER,

J.

CHIN,

J.


(footnote continued from previous page)

class numbering in the thousands of persons “who were residents, property owners
or lessees of property within a radius of six miles from” the plant]; but see Boggs
v. Divested Atomic Corp.
(S.D.Ohio Mar. 24, 1997, No. C-2-90-840) 1997 WL
33377790 [subsequently decertifying the class].)

10










CONCURRING AND DISSENTING OPINION BY MORENO, J.

I join Parts I and II of the lead opinion, holding that there is no per se bar to

class treatment of medical monitoring claims, and concluding that plaintiffs have

demonstrated some common issues as a class. However, I dissent from the lead

opinion’s holding in Parts III and IV that the trial court abused its discretion in

finding that common issues predominate and in certifying the class in this case.

Contrary to the majority, I conclude that the trial court did not abuse its discretion

in certifying the class of plaintiffs seeking damages for the cost of future medical

monitoring.

Plaintiffs in the present case allege that defendants caused contaminants,

including toxic rocket fuel (ammonium perchlorate) and trichloroethylene (a

carcinogenic solvent) to be leaked into the water table in Redlands and that this

contaminated water was consumed by members of the proposed class. Plaintiffs

brought a claim seeking damages for the cost of a court-supervised medical

monitoring program, and punitive damages. The trial court determined that

plaintiffs had a realistic chance of success on the merits. In addition, the trial

court found that common issues predominate in this action and that plaintiffs could

pursue their claims as a class.

The decision of a trial court to certify a class action is reviewed for abuse of

discretion. “Because trial courts are ideally situated to evaluate the efficiencies

and practicalities of permitting group action, they are afforded great discretion in

1

granting or denying certification.” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th

429, 435 (Linder).) The majority disregards this deferential standard of review

and instead engages in its own examination of the record to decide that, while

there are some common issues in this case, these issues do not predominate. The

majority concludes, therefore, that the trial court erred in certifying the class. I

believe that substantial evidence supports the trial court’s certification order.

Because I would uphold the trial court’s decision to certify the class in this case, I

dissent.

I.

A. Applicable Standard of Review

The lead opinion briefly summarizes the standard for reviewing a trial

court’s decision to certify a class. (See lead opn., ante, at p. 9.) This short

discussion, however, does not fully acknowledge the level of deference given to a

trial court. The lead opinion cites our opinion in Linder, supra, 23 Cal.4th at page

436, for the proposition that “we must examine the trial court’s reasons for

[granting] class certification.” The lead opinion does not mention, however, that

in the following sentence in Linder we clarify that “ ‘Any valid pertinent reason

stated will be sufficient to uphold the order.’ ” (Ibid.) Thus, while the lead

opinion is correct in stating that reviewing courts may overturn a trial court ruling

on certification if it is not supported by substantial evidence, it misses the point

that any valid pertinent reason is sufficient to uphold an order for certification.

This is an extremely deferential standard of review.

Further, we have stated that “a trial court ruling [on certification] supported

by substantial evidence generally will not be disturbed ‘unless (1) improper

criteria were used [citation]; or (2) erroneous legal assumptions were made

[citation]’ ” (Linder, supra, 23 Cal.4th at pp. 435-436.) For example, in

Washington Mutual Bank v. Superior Court (2001) 24 Cal.4th 906, 927

2

(Washington Mutual), we reversed a Court of Appeal decision upholding the trial

court’s certification order because the order was “premised upon [a] faulty legal

assumption.” In the present case, however, the majority does not conclude that the

trial court used improper criteria in granting the certification order, nor do they

find that the trial court made erroneous legal assumptions. In such a case, “the

sole question is whether the court abused its discretion.” (Occidental Land, Inc. v.

Superior Court (1976) 18 Cal.3d 355, 361.)

In addition, an appellate court’s review of a certification order should not

consider the merits of the underlying suit. As we have said, “we view the question

of certification as essentially a procedural one that does not ask whether an action

is legally or factually meritorious.” (Linder, supra, 23 Cal.4th at pp. 439-440.) In

reviewing a certification order, then, we assume that the plaintiffs’ theories of

liability are viable. Any challenge to the viability of the plaintiffs’ claims should

be left for a pleading or motion that considers the merits of these claims. As we

have stated, “[w]hen the substantive theories and claims of a proposed class suit

are alleged to be without legal or factual merit, the interests of fairness and

efficiency are furthered when the contention is resolved in the context of a formal

pleading (demurrer) or motion (judgment on the pleadings, summary judgment, or

summary adjudication) that affords proper notice and employs clear standards.

Were we to condone merit-based challenges as part and parcel of the certification

process, similar procedural protections would be necessary to ensure that an

otherwise certifiable class is not unfairly denied the opportunity to proceed on

legitimate claims.” (Id. at pp. 440-441.)

B. Trial Court’s Certification Order

In the certification order at issue here, the trial court explained that while it

recognized that this case presents some individual issues, these issues were

“manageable.” The trial court found that plaintiffs’ case derived from a common

3

nucleus of facts and that common issues predominate. Because we review the

certification order for abuse of discretion, I set forth in detail its relevant contents.

In granting the certification order, the trial court stated that its ruling was

interlocutory: “This order may be rescinded or modified as the changed

circumstances of the class, its representatives, or particular actions require.” After

concluding that plaintiffs have a realistic chance of success on the merits, and

recognizing that plaintiffs allege that they were exposed as a class to water

contaminated by toxic chemicals, the court noted: “This court further finds that

although there is no evidence of the dosage of toxins that were received by the

members of the proposed class, proof of dosage received is not necessary at this

time.” Additionally, the court found that “it is not necessary to determine the

levels of toxins received by each plaintiff at this time.”

Most importantly, the trial court found that “[t]he issues of law and fact in

this case all evolve from a common nucleus of facts and these common questions

of law and fact predominate over those that are individual to the plaintiffs. [¶]

The court recognizes that there are individual issues that will have to be dealt with

at the time of trial, however, the court finds these individual issues to be

manageable.”

Turning to the benefits of class treatment, the trial court found that

“proceeding with this action as a class action will substantially benefit the court

and the litigants because it will provide a superior method of dealing with the

common questions of law and fact that exist in this case.” The trial court noted

that it had “considered other methods of proceeding with this litigation” but found

that “the class action is the superior method.”

In addition, the trial court found that the prerequisites for a class action set

forth in Federal Rules of Civil Procedure, rule 23(a) (28 U.S.C.), were satisfied.

We have stated that in determining whether a class action proponent has

4

demonstrated a predominance of common issues and manageability of the class,

“we may look to the procedures governing federal class actions under rule 23 of

the Federal Rules of Civil Procedure (28 U.S.C.) . . . for guidance.” (Washington

Mutual, supra, 24 Cal.4th at p. 922.) The trial court in this case found that “(1)

The class consists of an estimated 50,000 – 100,000 people and therefore, the

members of the class are so numerous that joinder of members of the class as

individual plaintiffs is impracticable; (2) The common questions of law and fact

predominate over those that are individual to the plaintiffs; (3) The claims of the

persons representing the class are typical of the class generally; (4) The persons

acting as class representatives are able to fairly and adequately protect the interest

of all members of the class and class counsel is able to adequately represent the

class.”

II.

Applying the standard of review to the trial court’s certification order, it is

clear that the trial court did not abuse its discretion in certifying the class in this

case. Contrary to the majority, I conclude that substantial evidence supports the

trial court’s determination that common issues predominate and that any

individual issues in this case are manageable.

A. Duty and Breach

In reviewing the factors that plaintiffs will have to prove at trial to recover

medical monitoring damages, there is substantial evidence to support the trial

court’s conclusion that common issues predominate. Part II of the lead opinion

recognizes that it is undisputed that several key issues at trial will be proven by

evidence that is common to all class members. (Lead opn., ante, at pp. 9-12.) As

the lead opinion states, because plaintiffs’ claims sound generally in negligence,

plaintiffs will have to prove duty, breach of duty, proximate cause, and damages.

(Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 614.) The lead opinion

5

acknowledges that the issue of whether defendants owed a duty of care to the

proposed class members is susceptible to common proof. (Lead opn., ante, at pp.

9-10.) In addition, the lead opinion states that the issue of defendants’ breach of

this duty of care is also one that will be proven by evidence common to all class

members. (Lead opn., ante, at pp. 9-10.)

The trial court, in its certification order, explained that it found that

common issues predominate because “[t]he issues of law and fact in this case all

evolve from a common nucleus of facts.” This conclusion is supported by

substantial evidence since the central question of whether defendants acted

negligently is common to all class members. In order to establish defendants’

liability, plaintiffs will present common evidence attempting to show that

defendants negligently disposed of toxic chemicals that contaminated the

groundwater of Redlands. Evidence of how these chemicals were discharged, and

in what amounts, and how they entered into the domestic water system, will be

common to all class members. In fact, all of defendants’ actions will be proven by

common evidence.

B. Proximate Cause and Damages: The Potter Factors

In addition to establishing defendants’ duty of care and their breach of this

duty, plaintiffs will also have to show that their injuries were proximately caused

by defendants’ actions and that they are entitled to damages as compensation for

these injuries. Plaintiffs in this case, however, do not seek traditional

compensatory damages. Instead, they seek to recover damages for the cost of

medical monitoring of future injuries. As we explained in Potter, “[i]n the context

of a toxic exposure action, a claim for medical monitoring seeks to recover the

cost of future periodic medical examinations intended to facilitate early detection

and treatment of disease caused by a plaintiff’s exposure to toxic substances.”

6

(Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1004-1005

(Potter).)

Damages for medical monitoring are unlike a traditional damages remedy

because in order to recover medical monitoring damages, a plaintiff need not

demonstrate a present physical injury or even show proof that injury is reasonably

certain to occur in the future. We have determined that “medical monitoring may

be called for as a result of defendant’s tortious conduct, even in the absence of

actual physical injury.” (Potter, supra, 6 Cal.4th 965, 1007.) “[R]ecovery of

medical monitoring damages should not be dependent upon a showing that a

particular cancer or disease is reasonably certain to occur in the future.” (Id. at p.

1008.) To recover medical monitoring damages, a plaintiff must show that “the

need for future monitoring is a reasonably certain consequence of a plaintiff’s

toxic exposure and that the recommended monitoring is reasonable.” (Id. at p.

1009.)

As the lead opinion explains, we set forth five factors in our decision in

Potter (the Potter factors) that are relevant to a court’s determination of the

reasonableness and necessity of medical monitoring. (Potter, supra, 6 Cal.4th at

p. 1009; see lead opn., ante, at p. 5.) The five Potter factors are not novel

evidentiary burdens; they are simply meant to give courts guidance in determining

whether plaintiffs seeking medical monitoring have met the traditional tort

requirements of causation and damage. (See lead opn., ante, at p. 7.) Thus,

plaintiffs will need to present evidence relating to the Potter factors in order to

prove the elements of proximate causation and damages.

As with the elements of duty and breach, I agree with the majority that

some of the Potter factors are clearly subject to common proof. The majority

recognizes that two of the five Potter factors—the toxicity of the chemicals

7

allegedly discharged and the seriousness of a disease for which the plaintiffs are at

risk—will involve common proof.

Furthermore, the lead opinion acknowledges that “[s]trictly speaking,” the

trial court was correct in ruling that the first Potter factor—the significance and

extent of plaintiffs’ exposure to chemicals—is subject to common proof, since

under plaintiffs’ theory of liability, the exact dosage of each discharged chemical

received by each individual plaintiff is irrelevant. (Lead opn., ante, at pp. 11-12.)

Part III of the lead opinion, however, ultimately rejects plaintiffs’ theory of

liability and concludes that the first Potter factor is not subject to common proof.

It is largely this determination, that the issue of plaintiffs’ exposure is not subject

to common proof, that leads the majority to reject the trial court’s conclusion that

common issues predominate. For this reason, I will focus on this factor to explain

why I believe that the issue of exposure is subject to common proof, and that the

trial court did not err in concluding that common issues predominate.

The lead opinion refers to Potter for the proposition that “evidence of

exposure alone cannot support a finding that medical monitoring is a reasonably

necessary response.” (Lead opn., ante, at p. 12, citing Potter, supra, 6 Cal.4th at

p. 1009.) This statement is, of course, correct. A plaintiff cannot recover the cost

of medical monitoring merely because he or she has been exposed to toxic

chemicals. Instead, a plaintiff must show the need for medical monitoring in light

of the other Potter factors, including the toxicity of these chemicals and the

seriousness of the diseases for which plaintiff is at risk as a result of the exposure

to these chemicals.

The lead opinion is incorrect, however, in concluding from our statements

in Potter that the issue of plaintiffs’ exposure to toxic chemicals cannot be subject

to common proof. We did not decide in Potter whether evidence of exposure

could be presented on a class-wide basis. We merely said that one factor relevant

8

in determining whether a plaintiff could recover the cost of medical monitoring

was the significance and extent of plaintiff’s exposure to the toxic chemicals. We

did not say whether or not plaintiffs could present evidence of exposure on a class-

wide basis by alleging that all plaintiffs in a proposed class have received a certain

minimum level of exposure to the chemicals.

Plaintiffs’ theory of liability is that all individuals who meet the class

requirements are entitled to medical monitoring. Plaintiffs allege that everyone

exposed to defendants’ discharged chemicals over specified minimum safety

levels “for some part of a day, for greater than 50% of a year, for one or more

years from 1955 to the present” will require specialized monitoring for diseases

caused by such exposure. Class membership, therefore, is restricted by definition

to persons who have received a specified, medically significant minimum level of

exposure to the allegedly contaminated water. Plaintiffs claim that individual

class members need only establish their residency and/or employment in the

contaminated area for at least six months to be eligible for medical monitoring.

Thus, under plaintiffs’ theory of liability, the significance and extent of toxic

exposure is susceptible to common proof. While plaintiffs may or may not be able

to succeed in proving this theory, the trial court was correct in accepting this

theory for purposes of a certification motion.

The majority concludes, however, that plaintiffs cannot prove exposure on

a class-wide basis because each plaintiff received different dosages of toxic

chemicals. (See lead opn., ante, at p. 13.) Of course, whether someone is exposed

to toxic chemicals is not the same issue as what dosage of the chemical he or she

received. I agree with the majority that any relevant questions relating to

variations in actual chemical dosage received by individual members of the

plaintiff class are likely not susceptible to common proof. Plaintiffs, however,

9

have constructed their theory of liability to make these questions of individual

dosage largely irrelevant.

The majority errs in examining the record in this case to determine whether

plaintiffs’ experts’ declarations support plaintiffs’ theory of liability. The lead

opinion finds that “the medical expert testimony plaintiffs presented in support of

their motion for class certification is 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.” (Lead opn., ante, at p.

15.) This type of reevaluation of the record and critique of expert testimony is

inappropriate in the context of a certification motion.

In reviewing a certification order, we are not called upon to determine

whether plaintiffs’ experts’ declarations demonstrate the reasonableness and

necessity of medical monitoring.1 Whether the evidence submitted in support of

certification is adequate to support plaintiffs’ theories on their merits is not before

us, since certification may not be “conditioned upon a showing that class claims

for relief are likely to prevail.” (Linder, supra, 23 Cal.4th at p. 443.)

By rejecting the viability of plaintiffs’ theory of liability—that all plaintiffs

in the proposed class are entitled to medical monitoring based on a threshold level


1

I note, however, that the record does contain evidence to support plaintiffs’

theory of liability. Plaintiffs’ expert Dr. Teitlebaum opined that “even small doses
of environmental carcinogens . . . such as those present in Redlands, [and] their
breakdown products delivered to the population, are quite capable of interacting
with the human genome to produce malignant outcomes.” Dr. Teitlebaum further
stated that “any person who fulfills the class definition proposed in this case is at
greater risk of developing cancer and other serious illness which is known by
scientists and toxicologists to be associated with the chemicals at issue in this
case.”

10

of exposure—the majority is effectively ruling on the substantive merits of

plaintiffs’ claims in the context of a procedural motion for certification. Such a

conclusion should not be made in the context of a certification motion but rather

should be made in the context of a formal pleading or motion that affords proper

notice to the parties and follows clear standards of review. By ruling on the merits

of plaintiffs’ claims in the context of a certification motion, the majority denies

plaintiffs the procedural protections to which they are entitled. (Linder, supra, 23

Cal.4th at p. 440.)

In addition, the majority’s search of the record for evidence to support

plaintiffs’ theory of liability risks making a motion for certification a more

complicated and burdensome procedure. As we have cautioned, “[s]ubstantial

discovery . . . may be required if plaintiffs are expected to make meaningful

presentations on the merits. All of that is likely to render the certification process

more protracted and cumbersome, even if . . . trial courts were prohibited from

resolving factual disputes. Such complications hardly seem necessary when

procedures already exist for early merit challenges.” (Linder, supra, 23 Cal.4th at

p. 441, fn. omitted.)

Furthermore, the majority ignores the fact that the nature of the remedy

requested in this case reduces the importance of each plaintiff’s individual

exposure. If plaintiffs had sought to recover compensatory damages, the issue of

each individual’s exposure clearly would have been relevant to each individual’s

recovery. In seeking medical monitoring damages, however, plaintiffs need not

prove present or future individual injury. Instead, they need only show that

medical monitoring is reasonably necessary as a result of exposure to the toxic

chemicals. Plaintiffs allege that all class members, having received a threshold

level of exposure, are entitled to the same remedy because they are all at a greater

risk of disease. This is the approach taken in Yslava v. Hughes Aircraft Co.

11

(D.Ariz. 1993) 845 F.Supp. 705, where the court determined that for a class action

seeking medical monitoring, “[a]ll persons who were exposed to [a certain] level

for at least a year would qualify for medical monitoring. Thus, proof of an exact or

individual amount of exposure or particular risk level is not necessary. The core

issues of liability and exposure are common to all class members.” (Id. at p. 713,

italics added.)

Ultimately, the majority, in rejecting plaintiffs’ theory of liability, fails to

give proper deference to the findings of the trial court. The trial court accepted

plaintiffs’ theory of liability for purposes of the certification order. As the trial

court concluded, “although there is no evidence of the dosage of toxins that were

received by the members of the proposed class, proof of the dosage received is not

necessary at this time.” Moreover, the certification order was interlocutory. Thus,

should plaintiffs’ theory of liability prove to be not viable at a later date, the trial

court retained the option of decertifying the class. (See O’Connor v. Boeing North

American, Inc. (2000) 197 F.R.D. 404, 408-409 [while trial court initially certified

class seeking damages for medical monitoring, the court decertified the class after

its summary judgment rulings].) At this early point in the proceedings, however,

the trial court assumed, as it should, that plaintiffs’ theory of liability was viable.

Under this theory, the first Potter factor—plaintiffs’ exposure to the toxic

chemicals—is subject to common proof.

Turning to the remaining Potter factors, the lead opinion briefly states that

proof of each individual plaintiff’s chances of developing a particular disease, had

he or she not been exposed, may not be subject to common proof. I agree with the

lead opinion that an individual’s preexisting conditions are, by definition, not

susceptible to common proof. I am not convinced, however, that predisposition to

a disease should preclude a plaintiff who has been exposed to toxic chemicals

from receiving medical monitoring for diagnostic purposes. As we stated in

12

Potter, “While there is no question that a defendant ought not to be liable for

medical monitoring of a plaintiff’s preexisting condition that is unaffected by a

subsequent toxic exposure negligently caused by the defendant, we see no reason

why the defendant should not be held responsible for any increased or different

monitoring of the preexisting condition (whether or not the preexisting condition

is caused by the plaintiff’s voluntary conduct) where necessitated as a direct result

of the subsequent exposure.” (Potter, supra, 6 Cal.4th at p. 1009, fn. 27.) Thus,

neither the possibility nor the actuality of preexisting medical conditions

constitutes a bar to medical monitoring liability. Furthermore, screening for

preexisting conditions, while individualized, is irrelevant to an initial

determination of defendants’ liability. Such screening for preexisting conditions

can be done postjudgment, perhaps as an initial part of the monitoring process.

Finally, the lead opinion does not discuss the fifth Potter factor, the clinical

value of early detection and diagnosis. (Potter, supra, 6 Cal.4th at p. 1009.)

Presuming that the clinical value of early detection and diagnosis varies among

diseases, whether monitoring has clinical value in a particular case would seem to

depend, at least in part, on the specific toxicity of the chemicals allegedly

discharged. As previously discussed, the lead opinion agrees that such toxicity

may be susceptible to common proof.

Part I of the lead opinion states that even if one Potter factor is not subject

to common proof, this should not prove fatal to a certification motion. The lead

opinion explicitly rejects defendants’ argument that Potter requires that each of

the five factors is capable of common proof. (See lead opn., ante, at p. 8.) I agree

with this conclusion and determine that even though some factors may not involve

common proof, certification of a class action may still be appropriate. As we have

stated, “the fact that each member of the class must prove his [or her] separate

claim to a portion of any recovery by the class is only one factor to be considered

13

in determining whether a class action is proper” and “[t]he requirement of a

community of interest does not depend upon an identical recovery.” (Vasquez v.

Superior Court (1971) 4 Cal.3d 800, 809 (Vasquez).) Even “that each class

member might be required ultimately to justify an individual claim does not

necessarily preclude the maintenance of a class action.” (Collins v. Rocha (1972)

7 Cal.3d 232, 238; see also Vasquez, supra, at p. 815.)

Here, the trial court concluded that class treatment was the superior method

since the case arose out of a common nucleus of facts and common issues

predominate. In my view, substantial evidence supports this conclusion. I agree

with the majority that the issues of defendants’ duty and breach of this duty is

susceptible to common proof. In addition, I conclude that most, if not all, of the

Potter factors will involve proof that is common to all class members. Therefore,

unlike the majority, I cannot conclude that the trial court abused its discretion in

determining that common issues predominate.

III.

While the majority concludes that there is no per se bar to class treatment of

medical monitoring claims, I am concerned that by reversing the trial court’s

decision to certify the class in this case, the effect of our ruling will be a de facto

bar on class treatment of medical monitoring claims. Plaintiffs’ theory of liability

is that all plaintiffs who meet a threshold level of exposure should recover

damages for the cost of medical monitoring. The majority rejects this theory,

agreeing with defendants that proof of exposure alone is insufficient to show

causation and damages. Since the majority believes that each plaintiff will have to

show the specific dosage of toxic chemicals he or she received, they conclude that

the trial court erred in certifying this case as a class action. My concern with this

holding is that it essentially precludes plaintiffs from constructing a claim for

medical monitoring damages that minimizes questions of individual exposure. If

14

plaintiffs are required to show evidence of dosage on an individual basis, and such

a requirement of individualized proof will prove fatal to a certification motion,

then essentially no claim for medical monitoring damages can be treated on a

class-wide basis.

In every potential class action for medical monitoring damages, exposure

will be individualized in some sense. A group of plaintiffs seeking medical

monitoring based on their exposure to asbestos in the workplace, for example, will

have been employed for varying amounts of time. Even for those plaintiffs

employed for the same length of time, contact with hazardous substances may

vary from plaintiff to plaintiff. Under the majority’s holding, these employees

could not bring a class action for medical monitoring damages because each class

member did not receive an identical exposure to the asbestos. Even if the

employees attempted to bring an action for medical monitoring damages based on

a minimum level of exposure, the majority would require each plaintiff to prove

his or her individual level of exposure, and would conclude that, as a result,

common issues do not predominate and the class could not be certified.

Ultimately, by rejecting plaintiffs’ theory of liability in the present case and

concluding that common issues do not predominate, the majority risks barring

class treatment for any medical monitoring claim. (Compare Lamb v. United Sec.

Life Co. (S.D. Iowa 1972) 59 F.R.D. 25, 33 [to reject class actions for securities

fraud merely because of the existence of the individual reliance issue would

“wholly eviscerate Rule 10b-5”].)

IV.

Contrary to the majority, I believe that this case is ideally suited for class

treatment. The majority’s failure to uphold the trial court’s decision to certify the

class in this case is contrary to the public policy of this state. As we have said,

“this state has a public policy which encourages the use of the class action

15

device.” (Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 473.) Class

actions “ ‘serve an important function in our judicial system. By establishing a

technique whereby the claims of many individuals can be resolved at the same

time, the class suit both eliminates the possibility of repetitious litigation and

provides small claimants with a method of obtaining redress for claims which

would otherwise be too small to warrant individual litigation.’ ” (Id. at p. 469.)

By allowing plaintiffs to pursue their claims as a class, the trial court’s

certification order may advance a number of public policies. In Potter, we found

that “recovery of medical monitoring costs is supported by a number of sound

public policy considerations.” (Potter, supra, 6 Cal.4th at p. 1008.) We listed

four public policy reasons supporting medical monitoring damages: (1) the

“important public health interest in fostering access to medical testing for

individuals whose exposure to toxic chemicals creates an enhanced risk of disease,

particularly in light of the value of early diagnosis and treatment for many cancer

patients”; (2) the “deterrence value in recognizing medical surveillance claims”

because allowing plaintiffs to recover the cost of care could deter the irresponsible

discharge of toxic chemicals; (3) the mitigation of future illness and therefore the

reduction of overall costs that could result from providing medical monitoring

before the consequences of exposure are manifest; (4) the fact that “it would be

inequitable for an individual wrongfully exposed to dangerous toxins, but unable

to prove that cancer or disease is likely, to have to pay the expense of medical

monitoring when such intervention is clearly reasonable and necessary.” (Ibid.)

I agree with the trial court that plaintiffs’ claims for medical monitoring

damages are most effectively and efficiently presented as a class action. Plaintiffs

allege that they were injured by defendants as a class. As claimed by plaintiffs,

defendants negligently disposed of toxic rocket fuel, which seeped into the

groundwater of Redlands and contaminated the city’s drinking water. The

16

majority holds that notwithstanding this class-wide injury, plaintiffs cannot

recover as a class. Instead, they must pursue their claims on an individual basis.

In order to recover the cost of medical monitoring for diseases that were allegedly

caused by defendants’ negligent actions, each plaintiff will have to prove the

elements of a damages claim. Each plaintiff will have to show that defendants had

a duty of care, that defendants breached this duty by negligently disposing of toxic

chemicals, and that the chemicals contaminated the groundwater. He or she will

additionally have to show the amount of contaminants that entered the

groundwater, and when, where, and at what levels the contaminants were pumped

by the city’s wells and introduced into the domestic water system. Each plaintiff

will have to prove the toxicity of the chemicals, and the diseases he or she is at

risk of contracting as a result of exposure to the chemicals. Each plaintiff will

have to show that medical monitoring of future potential diseases is a reasonably

necessary response based on the risk of disease due to exposure to the chemicals.

Absent class treatment, therefore, each individual plaintiff will present the

same or essentially the same arguments and evidence (including expert testimony)

on these numerous complicated issues. Any Redlands resident who wishes to

recover the cost of medical monitoring will have to go to great expense to prove

defendants’ liability and his or her right to recover. The result will be a

multiplicity of trials conducted at enormous cost to both the judicial system and

the litigants. As Chief Judge Weinstein observed in In re “Agent Orange”

Product Liability Litigation (E.D.N.Y. 1983) 100 F.R.D. 718, 720, “if [mass

injury] claims are dealt with individually, the result might [be] ‘a tedium of

repetition lasting well into the next century.’ ” “It would be neither efficient nor

fair to anyone, including defendants, to force multiple trials to hear the same

evidence and decide the same issues.” (Boggs v. Divested Atomic Corporation

17

(S.D. Ohio 1991) 141 F.R.D. 58, 67 (Boggs).)2 Class treatment here therefore

promotes judicial efficiency and economy.

More importantly, it is unlikely that, on an individual basis, plaintiffs will

pursue such a remedy. Class claims for medical monitoring damages typically

present a large body of plaintiffs who, individually, do not expect a large recovery,

but, as a class, expect a significant recovery. “Where it is not economically

feasible to obtain relief [in separate suits] . . . , aggrieved persons may be without

any effective redress unless they may employ the class-action device.” (Deposit

Guarantee Nat. Bank v. Roper (1980) 445 U.S. 326, 339.) As we have stated,

“[w]hile the mere denial of certification does not, as a legal matter, terminate the

right of any plaintiff to pursue claims on an individual basis, it is likely to have

that net effect when there has been injury of insufficient size to warrant individual

action.” (Linder, supra, 23 Cal.4th at p. 441.) In the present case, the cost of

litigating defendants’ liability undoubtedly will be greater than any expected

individual recovery in the form of damages for the cost of medical monitoring.

For “exposure only” plaintiffs individually to pursue even plainly meritorious

medical monitoring claims may be economically infeasible.

Furthermore, class treatment of plaintiffs’ claims would secure uniform

results for any viable medical monitoring claims pled herein. To the extent a class


2

Boggs, supra, 141 F.R.D. 58, involved claims by neighbors of an industrial

facility that hazardous materials released from the facility had contaminated their
properties. In certifying a medical monitoring class, the federal district court
“rejected defendants’ view of the individualized nature of the plaintiffs’ claims”
(id. at p. 67), which parallel defendants’ arguments here (see id. at pp. 64-65).
The court noted that “[c]ommon issues of liability, causation, and remedies not
only predominate but overwhelm individualized issues. If these claims were tried
separately, the amount of repetition would be manifestly unjustified.” (Id. at
p. 67.)

18

action “ ‘ “eliminates the possibility of repetitious litigation” ’ ” of common issues

(Linder, supra, 23 Cal.4th at p. 435), it also eliminates the possibility of

inconsistency in their adjudication.

Not only is the nature of plaintiffs’ claims well suited for class treatment,

but also the remedy requested here is one that is most effectively administered to a

class of plaintiffs. If plaintiffs receive the medical monitoring remedy as a class,

one unitary monitoring program with clear standards and procedures can be

established. An initial screening can be utilized to detect any preexisting

conditions, and to identify any specific risk factors. Diseases may be easier to

identify through class treatment of medical monitoring plaintiffs as well, because

doctors monitoring a class of plaintiffs exposed to the same toxic chemicals may

see similar symptoms in a number of individuals.

In addition, the maintenance of a class action for medical monitoring

damages serves as a deterrent for corporate polluters. “Absent a class suit a

wrongdoing defendant [may] retain the benefit of its wrongs.” (Vasquez, supra, 4

Cal.3d at p. 810.) “ ‘Allowing plaintiffs to recover the cost [of medical

monitoring] deters irresponsible discharge of toxic chemicals by defendants.’ ”

(Metro-North Commuter R. Co. v. Buckley (1997) 521 U.S. 424, 451 (conc. & dis.

opn. of Ginsburg, J.).) Since the cost of litigating cases on an individual basis

may be prohibitive, a class action may be the only way to establish defendants’

liability for the cost of medical monitoring. In fact, unless defendants are held

liable for the cost of medical monitoring, they may escape liability altogether. As

one court has noted, “The difficulty of proving causation, where the disease is

manifested years after exposure, has caused many commentators to suggest that

tort law has no capacity to deter polluters, because the costs of proper disposal are

often viewed by polluters as exceeding the risk of tort liability. [Citations.]

However, permitting recovery for reasonable pre-symptom, medical-surveillance

19

expenses subjects polluters to significant liability when proof of the causal

connection between the tortious conduct and the plaintiffs' exposure to chemicals

is likely to be most readily available.” (Ayers v. Jackson Tp. (1987) 106 N.J. 557,

604.)

Thus, while “ ‘[a]ny valid pertinent reason stated [would] be sufficient to

uphold the [certification] order’ ” (Linder, supra, 23 Cal.4th at p. 436), the trial

court’s certification order in this case is supportable on several grounds:

responsible public health policy, efficiency in the expenditure of judicial

resources, uniformity of adjudication, effective administration of the remedy, and

deterrence of wrongdoing by potential polluters.

V.

Part I of the lead opinion states that medical monitoring claims may be

treated as a class “so long as any individual issues the claims present are

manageable.” (Lead opn., ante, at p. 8.) In reviewing the evidence to be proven at

trial, it is clear that the trial court was well within its discretion in concluding that

any individual issues in this case are manageable. The majority errs in reweighing

the balance of common versus individual issues in this case and determining that

common issues do not predominate. This is a conclusion we need not reach.

Instead, the weighing of individual versus common factors and the decision on the

manageability of the class is an exercise left to the sound discretion of the trial

court. A trial court’s class certification determination is discretionary because “ ‘it

is “a practical problem, and primarily a factual one with which a [trial] court

generally has a greater familiarity and expertise than does a court of appeal[].” ’ ”

(Boughton v. Cotter Corporation (10th Cir. 1995) 65 F.3d 823, 828.)

The majority essentially disregards the trial court’s conclusion that the

individual issues in this case are manageable and that common issues predominate.

20

Rather than reviewing the certification order for abuse of discretion, the majority

rejects plaintiffs’ theory of liability after a merit-based analysis of plaintiffs’

claims. Our role as a reviewing court, however, is not to determine whether or not

we agree with the trial court’s conclusion that common issues predominate but

only to see whether this conclusion was an abuse of discretion. Unless this

decision was an abuse of discretion, it should be upheld.

Plaintiffs allege that they were injured as a class by defendants. They ask

that defendants be held responsible for the cost of medical monitoring, which can

detect, and prevent, future illness. The trial court determined that class treatment

of plaintiffs’ claims was the superior method of dealing with the common

questions of law and fact that exist in this case. Substantial evidence supports this

determination, and so I conclude that the trial court did not abuse its discretion in

certifying the class in this case. Therefore, I dissent.

MORENO, J.

I CONCUR:

GEORGE, C. J.

21

See last page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Lockheed Martin Corporation v. Superior Court
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted
XXX 79 Cal.App.4th 1019
Rehearing Granted

__________________________________________________________________________________

Opinion No.
S088458
Date Filed: March 3, 2003
__________________________________________________________________________________

Court:
Superior
County: San Bernardino
Judge: Ben T. Kayashima

__________________________________________________________________________________

Attorneys for Appellant:

Holme, Roberts & Owen, Linnea Brown; Gibson, Dunn & Crutcher, Robert S. Warren, Robert W. Loewen
and Daniel S. Floyd for Petitioners Lockheed Martin Corporation and Highland Supply Corporation.

Payne & Fears, David Sweet, Alan G. Ross; Law Offices of Terry Bridges and Terry Bridges for Petitioner
Highland Supply Company.

Bowman & Brooke, Anthony S. Thomas; Seyfarth, Shaw, Fairweather & Geraldson, John D. Dwyer,
Steven B. Katz and Carrie L. Daughters for Petitioner FMC Corporation.

Wood, Smith, Henning & Berman, David F. Wood, Ann G. Zuckerman, James C. MacDonald; Brunick,
Alvarez & Battesby and Leland P. McElhaney for Petitioner Baumac Corporation.

Zevnik Horton Guibord McGovern Palmer & Fognani, John D. Fognani, Michael John Miguel and
K. Eric Adair for Petitioners PETRO-TEX Chemical Corporation and El Paso Tennessee Pipeline Co.

Nossman, Guthner, Knox & Elliott and Patrick J. Richard as Amici Curiae on behalf of Petitioners.

Hugh F. Young, Jr., and Harvey M. Grossman for The Product Liability Advisory Council, Inc., as Amicus
Curiae on behalf of Petitioners.

Atlantic Legal Foundation and Martin S. Kaufman for Ronald E. Gots, Leonard Hamilton, Ronald Hart,
Clark W. Heath, Michael Gough, A. Alan Moghissi, Rodney W. Nichols, Frederick Seitz, Barry H. Smith,
James Wilson and Richard Wilson as Amici Curiae on behalf of Petitioners.

Crowell & Moring, Victor E. Schwartz and Luther Zeigler for The Coalition for Asbestos Justice, Inc., as
Amicus Curiae on behalf of Petitioners.

Horvitz & Levy, David M. Axelrad, Lisa Perrochet and Mary-Christine Sungaila for American Chemistry
Council, Chemical Industry Council of California, ExxonMobil Corporation and Union Oil Company of
California dba UNOCAL as Amici Curiae on behalf of Petitioners.


1




Page 2 - counsel continued - S088458


Attorneys for Appellant:


Sedgwick, Detert, Moran & Arnold and Frederick D. Baker for Defense Research Institute as Amicus
Curiae on behalf of Petitioners.

Spriggs & Hollingsworth, Donald W. Fowler, Rebecca A. Womeldorf, Marc S. Mayerson; National
Chamber Litigation Center and Robin S. Conrad for United States Chamber of Commerce as Amicus
Curiae on behalf of Petitioners.

Robie & Matthai, Pamela E. Dunn and Natalie A. Kouyoumdjian for State Farm General Insurance
Company and United Services Automobile Association as Amici Curiae on behalf of Petitioners.

Crosby, Heafy, Roach & May, James C. Martin, Michael K. Brown; Daniel J. Popeo and Paul D. Kamenar
for Washington Legal Foundation as Amicus Curiae on behalf of Petitioners Lockheed Martin Corporation
and Highland Supply Company.

__________________________________________________________________________________

Attorneys for Respondent:

No appearance for Respondent.

Engstrom, Lipscomb & Lack, Walter J. Lack, Gary A. Praglin, Richard P. Kinnan; Masry & Vititoe,
Edward S. Masry; Girardi & Keese, Thomas V. Girardi, Howard B. Miller; Ward & Ward and Alexandra
S. Ward for Real Parties in Interest.






2





Counsel who argued in Supreme Court (not intended for publication with opinion):

Robert S. Warren
Gibson, Dunn & Crutcher
333 South Grand Avenue
Los Angeles, CA 90017-3197
(213) 229-7000

Howard B. Miller
Girardi & Keese
1126 Wilshire Boulevard
Los Angeles, CA 90017-1904
(213) 977-0211

3

Opinion Information
Date:Docket Number:
Mon, 03/03/2003S088458

Parties
1Carrillo, Roslyn (Real Party in Interest)
Represented by Gary A. Praglin
Engstrom Lipscomb & Lack
10100 Santa Monica Bl 16FL
Los Angeles, CA

2Carrillo, Roslyn (Real Party in Interest)
Represented by Thomas V. Girardi
Girardi & Keese
1126 Wilshire Blvd
Los Angeles, CA

3Carrillo, Roslyn (Real Party in Interest)
Represented by Alexandra S. Ward
Ward & Ward
685 East Carnegie Centre, Suite 140
San Bernardino, CA

4Lockheed Martin Corporation (Petitioner)
Home, Roberts & Owen, LLP
1700 Lincoln Street, Suite 4100
Denver, CO 80203

Represented by Robert S. Warren
Gibson, Dunn & Crutcher
333 South Grand Avenue
Los Angeles, CA

5Highland Supply Corporation (Petitioner)
Represented by Robert S. Warren
Gibson, Dunn & Crutcher
333 South Grand Avenue
Los Angeles, CA

6Fmc Corporation (Petitioner)
Represented by John D. Dwyer
Seyfarth, Shaw, Fairweather
2029 Century Park East
Suite 3300
Los Angeles, CA

7Baumac Corporation (Petitioner)
Represented by David F. Wood
Wood, Smith, Henning, Etal
801 South Figueroa Street
9th Floor
Los Angeles, CA

8El Paso Tennesee Pipeline Company (Petitioner)
Zevnik, Horton, Guiboard et al.
333 S. Grand Avenue, 21st Floor
Los Angeles, CA 90071

9Petro-Tex Chemical Corporation (Petitioner)
Represented by John D. Fognani
Zevnik, Horton, Guibord, Etal
333 South Grand Avenue
21st Floor
Los Angeles, CA

10Superior Court Of San Bernardino County (Respondent)
11State Farm General Insurance Company (Amicus curiae)
Represented by Pamela E. Dunn
Robie & Matthai
500 S Grand #1500
Los Angeles, CA

12United Services Automobile Association (Amicus curiae)
13Product Liability Advisory Council, Inc. (Amicus curiae)
Represented by Harvey M. Grossman
P O Box 360919
P O Box 360919
Los Angeles, CA

14Coalition For Asbestos Justice (Amicus curiae)
Represented by Luther Zeigler
Crowell & Moring
1001 Pennsylvania Ave. N.W.
Washington, DC

15American Chemistry Council (Amicus curiae)
Represented by Mary-Christine Sungaila
Horvitz & Levy
15760 Ventura Blvd, 18th Fl.
Encino, CA

16Chemical Industry Council Of California (Amicus curiae)
17Exxonmobil Corporation (Amicus curiae)
18Union Oil Company Of California (Amicus curiae)
19United States Chamber Of Commerce (Amicus curiae)
Represented by Marc S. Mayerson
Spriggs & Hollingsworth
1350 I Street, N.W.
Washington, DC

20Defense Research Institute (Amicus curiae)
Represented by Frederick D. Baker
Sedgwick, Detert, Moran & Arnold
One Embarcadero Center, 16th Fl.
San Francisco, CA

21Gots, Ronald E. (Amicus curiae)
Represented by Martin Kaufman
Atlantic Legal Foundation
205 East 42nd St., 9th Fl.
New York, NY

22Washington Legal Foundation (Amicus curiae)
Paul D. Kamenar
2009 Massachusetts Ave., NW
Washington, DC 20036

Represented by Michael Kevin Brown
Crosby Heafey Roach & May
700 So. Flower St., #2200
Los Angeles, CA


Disposition
Mar 3 2003Opinion: Affirmed

Dockets
May 19 2000Petition for review filed
  Real parties Roslyn Carrillo, Etal [Record]
May 26 2000Received:
  C/A Record- 3 large Boxes for E025064, 25181 & 25163
Jun 6 2000Answer to petition for review filed
  Petnr Lockheed Martin Corp.
Jul 12 2000Petition for Review Granted (civil case)
  Votes: George C.J., Kennard, Baxter, Werdegar, Chin & Brown JJ.
Jul 14 2000Note: Grant record sent to ct.
  petn for E025064, 33 vols of exhib, petn for E025163, petn for E025181, supp petn for E025064, appendix, supp memo in E025181, response to petns, 3 replies, further response to petns, surreply memo, 3 further replies, 5, 6, 7, 8, misc papers.
Jul 25 2000Application for Extension of Time filed
  Rpi -- [Carillo] to File Opening/Brief Merits asking to 9/8/00. XX Faxed SF XX
Jul 27 2000Received document entitled:
  Petitioner FMC's "Stipulation re: Partial Dismissal
Aug 10 2000Extension of Time application Granted
  to file opening brief on the merits, to 9-8-00.
Sep 8 2000Opening brief on the merits filed
  Real Parties Roslyn Carrillo, etal
Sep 22 2000Application for Extension of Time filed
  To file Answer Brief / Merits faxed>Ken ***perm gtd, order being prepared. (to 11-8)
Oct 2 2000Application filed to:
  Appear as Counsel Pro Hac Vice
Oct 5 2000Extension of Time application Granted
  to 11-8-00 for petnrs to file the ans brf on the merits. No further ext are contemplated.
Oct 24 2000Order filed:
  application granted for Linnea Brown to appear pro hac vice for petnr Lockheed Martin
Oct 30 2000Filed letter from:
  counsel for FMC Corp, re stipulation re partial dismissal.
Nov 3 2000Order filed: PARTIAL DISMISSAL pursuant to stipulation
  Petnrs/defts FMC Corp, Petro-Tex Chemical Corp, and El Paso Tennessee Pipeline Co. are dismissed from this cause w/prejudice, the parties to bear their own costs.
Nov 8 2000Answer brief on the merits filed
  Petitoner - Lockheed Martin Corporation
Nov 28 2000Reply brief filed (case fully briefed)
  Real Parties Roslyn Carrillo, etal
Dec 15 2000Received app. to file A.C. brief; with brief
  Product Liability Advisory Council, Inc. [in support of Petitioners] ***perm gtd, order being prep
Dec 22 2000Received app. to file A.C. brief; with brief
  from the Coalition for Asbestos Justice in support of petnrs ***perm gtd, order being prep
Dec 22 2000Application for Extension of Time filed
  to submit A/C appln & brief by State Farm General Insurance Co. and United Services Automobile Assn. (to 1-29-01) ***perm gtd, ord being prep.
Dec 27 2000Received app. to file A.C. brief; with brief
  Washington Legal Foundation [in support of Petitioners] ***perm gtd, order being prep
Dec 27 2000Received app. to file A.C. brief; with brief
  from Defense Research Institute in support of petnrs ***perm gtd, order being prep
Dec 28 2000Received app. to file A.C. brief; with brief
  from American Chemistry Council et al in support of petnrs ***perm gtd, order being prep
Dec 28 2000Received app. to file A.C. brief; with brief
  from the Chamber of Commerce of the U.S. in support of petnrs ***perm gtd, order being prep
Dec 29 2000Received app. to file A.C. brief; with brief
  from Ronald Gots et al (physicians & scientists) in support of petnrs. (brief prepared/submittted by Atlantic Legal Foundation) 40n ***perm gtd, order being prep
Jan 4 2001Extension of Time application Granted
  to 1-29-01 for State Farm Ins. and United States Auto Assn. to file A/C briefs. No further ext will be granted.
Jan 5 2001Permission to file amicus curiae brief granted
  by Washington Legal Foundation in support of petnrs. ans due w/in 20 days.
Jan 5 2001Amicus Curiae Brief filed by:
  Washington legal Foundation in support of petnrs.
Jan 5 2001Permission to file amicus curiae brief granted
  by Ronald E. Gots et al in support of petnrs. ans due w/in 20days
Jan 5 2001Amicus Curiae Brief filed by:
  Ronald E. Gots et al in support of petnrs.
Jan 5 2001Permission to file amicus curiae brief granted
  by Defense Research Institute in support of petnrs. ans due w/in 20 days.
Jan 5 2001Amicus Curiae Brief filed by:
  Defense Research Institute in support of petnrs.
Jan 5 2001Permission to file amicus curiae brief granted
  Chamber of Commerce of the U.S. in support of petnrs. ans due w/in 20 days.
Jan 5 2001Amicus Curiae Brief filed by:
  Chamber of Commerce of the U.S. in support of petnrs.
Jan 5 2001Permission to file amicus curiae brief granted
  American Chemistry Council et al in support of petnrs. ans due w/in 20 days.
Jan 5 2001Amicus Curiae Brief filed by:
  American Chemistry Council et al in support of petnrs.
Jan 5 2001Permission to file amicus curiae brief granted
  by Coalition for Asbestos Justice in support of petnrs. ans due w/in 20days.
Jan 5 2001Amicus Curiae Brief filed by:
  Coalition for Asbestos Justice in support of petnrs.
Jan 5 2001Permission to file amicus curiae brief granted
  by the Product Liability Advisory Council Inc. in support of petnrs. ans due w/in 20 days.
Jan 5 2001Amicus Curiae Brief filed by:
  the Product Liability Advisory Council Inc. in support of petnrs.
Jan 30 2001Received application to file Amicus Curiae Brief
  From State Farm General Insurance Company's & United Services Automobile Association.
Feb 5 2001Permission to file amicus curiae brief granted
  Amicus Curiae Brief of State Farm General Insurance Company's and United Services Automobile Association in support of petitioners. Answer due 20 days from filing of the brief.
Feb 5 2001Amicus Curiae Brief filed by:
  State Farm General Insurance Company's and United Services Automobile Association
Feb 16 2001Response to Amicus Curiae Brief filed by:
  Real Parties Roslyn Carrillo, etal to a/c brief of State Farm and United Services Automobile Assn.
Jul 3 2002Received:
  from counsel for petnrs (Lockheed Martin Corp., et al.) supplemental brief pursuant to Rule 29.3(a) & a request for Judicial Notice. (under seperate cover) shipped to sf o/n
Jul 11 2002Received:
  real party, Roslyn Carrillo's response to petitioners' supplemental brief. also sent overnight to sf.
Oct 31 2002Case ordered on calendar
  12-3-02, 2pm, L.A.
Nov 8 2002Filed:
  RPI's request to allocate oral argument time between two attorneys.
Dec 2 2002Order filed
  permission granted for two counsel to argue on behalf of RPI's
Dec 2 2002Order filed
  Permission granted for RPI's to allocate 10 min. of oral argument time to Thomas Girardi.
Dec 2 2002Filed document entitled:
  additional authorties filed by counsel for Real Parties
Dec 3 2002Cause argued and submitted
 
Dec 9 2002Filed letter from:
  counsel for petitioner, dated 12-5-02
Feb 11 2003Received letter from:
  Crystal Vande Poppe (non-party)
Mar 3 2003Opinion filed: Judgment affirmed in full
  Lead opinion by Werdegar, J. ---joined by Kennard, J. Concurring opinion by Brown, J. --- joined by Baxter & Chin, JJ. Concurring & Dissenting opinion by Moreno, J. --- joined by George, C.J.
Mar 18 2003Filed:
  Request for modification of opinion by A/C American Chemistry Council et al.
Apr 8 2003Remittitur issued (civil case)
 

Briefs
Sep 8 2000Opening brief on the merits filed
 
Nov 8 2000Answer brief on the merits filed
 
Nov 28 2000Reply brief filed (case fully briefed)
 
Jan 5 2001Amicus Curiae Brief filed by:
 
Jan 5 2001Amicus Curiae Brief filed by:
 
Jan 5 2001Amicus Curiae Brief filed by:
 
Jan 5 2001Amicus Curiae Brief filed by:
 
Jan 5 2001Amicus Curiae Brief filed by:
 
Jan 5 2001Amicus Curiae Brief filed by:
 
Jan 5 2001Amicus Curiae Brief filed by:
 
Feb 5 2001Amicus Curiae Brief filed by:
 
Feb 16 2001Response to Amicus Curiae Brief filed by:
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website