ELR Citation: ELR 21143
No(s). 92-5070-CV-SW-8 (W.D. Mo. Apr 6, 1994)

The court denies class certification in a suit arising from groundwater contamination that the defendant allegedly caused, and, applying Missouri law, grants the defendant summary judgment on plaintiffs' claims for mental anguish, fear of cancer, increased risk of cancer, and medical monitoring. The court first holds that the class is not appropriate for certification under Fed. R. Civ. P. 23(b)(2). Although plaintiffs' claims under the Comprehensive Environmental Response, Compensation, and Liability Act may be equitable in nature, plaintiffs primarily seek money damages, not injunctive or declaratory relief as required by Rule 23(b)(2). Their claims for injunctive relief under the Resource Conservation and Recovery Act are not the basis of the suit, but serve only as a basis for attorneys fees. Also, their claims for medical monitoring, though cast as claims for injunctive relief, are actually claims for damages. The court next holds that the class is not appropriate for certification under Rule 23(b)(3). Although common issues of law and fact exist as to whether the defendant released tetrachloroethylene (TCE) into the groundwater, they are overshadowed by issues of causation and damages, which require individualized proof that would result in hundreds or thousands of individualized mini-trials.

The court next grants the defendant summary judgment on plaintiffs' mental anguish claims, which require proof that the distress resulting from the TCE exposure is medically diagnosable and medically significant. No plaintiffs sought the help of mental health professionals until their lawyers instructed them to, nor do any appear to have plans to seek treatment in the future. Although these evaluations may have identified medically diagnosable conditions attributable to TCE exposure, these conditions are not medically significant. They do not surpass mere upset, dismay, humiliation, grief, and anger necessary to establish a mental anguish claim. The court next grants the defendant summary judgment on plaintiffs' fear of cancer claims. Such claims are subject to the same standard as mental anguish claims and thus must likewise fail. The court next grants the defendant summary judgment on plaintiffs' increased risk of cancer claims. Casting the claims as personal injury claims, the court holds that the claims require individualized proof of actual, present injury and medical evidence that future development of cancer is reasonably certain to occur. The court holds inadmissible an epidemiological study that found that the group as a whole may be injured but says nothing about any individual's condition. Since the plaintiffs have not been medically examined to determine if the TCE exposure injured them and admit that they lack sufficient information to determine whether they have been injured, the court holds that they cannot prove the physical injury element of their increased risk of cancer claims. Finally, the court grants the defendant summary judgment on plaintiffs' medical monitoring claims. Because plaintiffs cannot demonstrate actual present injury, they cannot establish that the future costs of medical monitoring are medically necessary.

Counsel for Plaintiffs
John M. Parisi, Bobbie R. Bailey, Lynn R. Johnson
Shamberg, Johnson, Bergman & Morris
Foxhill Pl. Bldg.
4551 W. 107th St., Ste. 355, Overland Park KS 66207
(913) 642-0600

Counsel for Defendants
David F. Oliver, M. Jan Day
Smith, Gill, Fisher & Butts
One Kansas Pl., 1200 Main St., 35th Fl., Kansas City MO 64105
(816) 474-7400