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, 03/03/2003 | S088458 |
Parties
| 1 | Carrillo, Roslyn (Real Party in Interest) Represented by Gary A. Praglin Engstrom Lipscomb & Lack 10100 Santa Monica Bl 16FL Los Angeles, CA |
| 2 | Carrillo, Roslyn (Real Party in Interest) Represented by Thomas V. Girardi Girardi & Keese 1126 Wilshire Blvd Los Angeles, CA |
| 3 | Carrillo, Roslyn (Real Party in Interest) Represented by Alexandra S. Ward Ward & Ward 685 East Carnegie Centre, Suite 140 San Bernardino, CA |
| 4 | Lockheed 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 |
| 5 | Highland Supply Corporation (Petitioner) Represented by Robert S. Warren Gibson, Dunn & Crutcher 333 South Grand Avenue Los Angeles, CA |
| 6 | Fmc Corporation (Petitioner) Represented by John D. Dwyer Seyfarth, Shaw, Fairweather 2029 Century Park East Suite 3300 Los Angeles, CA |
| 7 | Baumac Corporation (Petitioner) Represented by David F. Wood Wood, Smith, Henning, Etal 801 South Figueroa Street 9th Floor Los Angeles, CA |
| 8 | El Paso Tennesee Pipeline Company (Petitioner) Zevnik, Horton, Guiboard et al. 333 S. Grand Avenue, 21st Floor Los Angeles, CA 90071 |
| 9 | Petro-Tex Chemical Corporation (Petitioner) Represented by John D. Fognani Zevnik, Horton, Guibord, Etal 333 South Grand Avenue 21st Floor Los Angeles, CA |
| 10 | Superior Court Of San Bernardino County (Respondent) |
| 11 | State Farm General Insurance Company (Amicus curiae) Represented by Pamela E. Dunn Robie & Matthai 500 S Grand #1500 Los Angeles, CA |
| 12 | United Services Automobile Association (Amicus curiae) |
| 13 | Product Liability Advisory Council, Inc. (Amicus curiae) Represented by Harvey M. Grossman P O Box 360919 P O Box 360919 Los Angeles, CA |
| 14 | Coalition For Asbestos Justice (Amicus curiae) Represented by Luther Zeigler Crowell & Moring 1001 Pennsylvania Ave. N.W. Washington, DC |
| 15 | American Chemistry Council (Amicus curiae) Represented by Mary-Christine Sungaila Horvitz & Levy 15760 Ventura Blvd, 18th Fl. Encino, CA |
| 16 | Chemical Industry Council Of California (Amicus curiae) |
| 17 | Exxonmobil Corporation (Amicus curiae) |
| 18 | Union Oil Company Of California (Amicus curiae) |
| 19 | United States Chamber Of Commerce (Amicus curiae) Represented by Marc S. Mayerson Spriggs & Hollingsworth 1350 I Street, N.W. Washington, DC |
| 20 | Defense Research Institute (Amicus curiae) Represented by Frederick D. Baker Sedgwick, Detert, Moran & Arnold One Embarcadero Center, 16th Fl. San Francisco, CA |
| 21 | Gots, Ronald E. (Amicus curiae) Represented by Martin Kaufman Atlantic Legal Foundation 205 East 42nd St., 9th Fl. New York, NY |
| 22 | Washington 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 2003 | Opinion: Affirmed |
| Dockets | |
| May 19 2000 | Petition for review filed Real parties Roslyn Carrillo, Etal [Record] |
| May 26 2000 | Received: C/A Record- 3 large Boxes for E025064, 25181 & 25163 |
| Jun 6 2000 | Answer to petition for review filed Petnr Lockheed Martin Corp. |
| Jul 12 2000 | Petition for Review Granted (civil case) Votes: George C.J., Kennard, Baxter, Werdegar, Chin & Brown JJ. |
| Jul 14 2000 | Note: 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 2000 | Application for Extension of Time filed Rpi -- [Carillo] to File Opening/Brief Merits asking to 9/8/00. XX Faxed SF XX |
| Jul 27 2000 | Received document entitled: Petitioner FMC's "Stipulation re: Partial Dismissal |
| Aug 10 2000 | Extension of Time application Granted to file opening brief on the merits, to 9-8-00. |
| Sep 8 2000 | Opening brief on the merits filed Real Parties Roslyn Carrillo, etal |
| Sep 22 2000 | Application for Extension of Time filed To file Answer Brief / Merits faxed>Ken ***perm gtd, order being prepared. (to 11-8) |
| Oct 2 2000 | Application filed to: Appear as Counsel Pro Hac Vice |
| Oct 5 2000 | Extension 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 2000 | Order filed: application granted for Linnea Brown to appear pro hac vice for petnr Lockheed Martin |
| Oct 30 2000 | Filed letter from: counsel for FMC Corp, re stipulation re partial dismissal. |
| Nov 3 2000 | Order 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 2000 | Answer brief on the merits filed Petitoner - Lockheed Martin Corporation |
| Nov 28 2000 | Reply brief filed (case fully briefed) Real Parties Roslyn Carrillo, etal |
| Dec 15 2000 | Received app. to file A.C. brief; with brief Product Liability Advisory Council, Inc. [in support of Petitioners] ***perm gtd, order being prep |
| Dec 22 2000 | Received 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 2000 | Application 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 2000 | Received app. to file A.C. brief; with brief Washington Legal Foundation [in support of Petitioners] ***perm gtd, order being prep |
| Dec 27 2000 | Received app. to file A.C. brief; with brief from Defense Research Institute in support of petnrs ***perm gtd, order being prep |
| Dec 28 2000 | Received 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 2000 | Received 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 2000 | Received 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 2001 | Extension 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 2001 | Permission to file amicus curiae brief granted by Washington Legal Foundation in support of petnrs. ans due w/in 20 days. |
| Jan 5 2001 | Amicus Curiae Brief filed by: Washington legal Foundation in support of petnrs. |
| Jan 5 2001 | Permission to file amicus curiae brief granted by Ronald E. Gots et al in support of petnrs. ans due w/in 20days |
| Jan 5 2001 | Amicus Curiae Brief filed by: Ronald E. Gots et al in support of petnrs. |
| Jan 5 2001 | Permission to file amicus curiae brief granted by Defense Research Institute in support of petnrs. ans due w/in 20 days. |
| Jan 5 2001 | Amicus Curiae Brief filed by: Defense Research Institute in support of petnrs. |
| Jan 5 2001 | Permission 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 2001 | Amicus Curiae Brief filed by: Chamber of Commerce of the U.S. in support of petnrs. |
| Jan 5 2001 | Permission to file amicus curiae brief granted American Chemistry Council et al in support of petnrs. ans due w/in 20 days. |
| Jan 5 2001 | Amicus Curiae Brief filed by: American Chemistry Council et al in support of petnrs. |
| Jan 5 2001 | Permission to file amicus curiae brief granted by Coalition for Asbestos Justice in support of petnrs. ans due w/in 20days. |
| Jan 5 2001 | Amicus Curiae Brief filed by: Coalition for Asbestos Justice in support of petnrs. |
| Jan 5 2001 | Permission 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 2001 | Amicus Curiae Brief filed by: the Product Liability Advisory Council Inc. in support of petnrs. |
| Jan 30 2001 | Received application to file Amicus Curiae Brief From State Farm General Insurance Company's & United Services Automobile Association. |
| Feb 5 2001 | Permission 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 2001 | Amicus Curiae Brief filed by: State Farm General Insurance Company's and United Services Automobile Association |
| Feb 16 2001 | Response 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 2002 | Received: 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 2002 | Received: real party, Roslyn Carrillo's response to petitioners' supplemental brief. also sent overnight to sf. |
| Oct 31 2002 | Case ordered on calendar 12-3-02, 2pm, L.A. |
| Nov 8 2002 | Filed: RPI's request to allocate oral argument time between two attorneys. |
| Dec 2 2002 | Order filed permission granted for two counsel to argue on behalf of RPI's |
| Dec 2 2002 | Order filed Permission granted for RPI's to allocate 10 min. of oral argument time to Thomas Girardi. |
| Dec 2 2002 | Filed document entitled: additional authorties filed by counsel for Real Parties |
| Dec 3 2002 | Cause argued and submitted |
| Dec 9 2002 | Filed letter from: counsel for petitioner, dated 12-5-02 |
| Feb 11 2003 | Received letter from: Crystal Vande Poppe (non-party) |
| Mar 3 2003 | Opinion 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 2003 | Filed: Request for modification of opinion by A/C American Chemistry Council et al. |
| Apr 8 2003 | Remittitur issued (civil case) |
| Briefs | |
| Sep 8 2000 | Opening brief on the merits filed |
| Nov 8 2000 | Answer brief on the merits filed |
| Nov 28 2000 | Reply brief filed (case fully briefed) |
| Jan 5 2001 | Amicus Curiae Brief filed by: |
| Jan 5 2001 | Amicus Curiae Brief filed by: |
| Jan 5 2001 | Amicus Curiae Brief filed by: |
| Jan 5 2001 | Amicus Curiae Brief filed by: |
| Jan 5 2001 | Amicus Curiae Brief filed by: |
| Jan 5 2001 | Amicus Curiae Brief filed by: |
| Jan 5 2001 | Amicus Curiae Brief filed by: |
| Feb 5 2001 | Amicus Curiae Brief filed by: |
| Feb 16 2001 | Response to Amicus Curiae Brief filed by: |
