Medical Monitoring: The Evolution of a Cause of Action

James M. Garner, Keith A. Kornman, and Jon B. Coats

Editors' Summary: The law surrounding medical monitoring claims is relatively new and unsettled, but the uncertainty of the law has not stopped tort litigants from increasingly asserting such claims when seeking recovery for toxic exposure. This Article analyzes medical monitoring claims and details the difficult issues that courts are struggling with as they determine the viability of such claims. The Article first distinguishes a claim for medical monitoring from similar claims for enhanced risk of harm or fear of developing an injury or disease. The Article next discusses the first cases that recognized and set forth the necessary elements of a medical monitoring claim. From these original cases, recognition of medical monitoring claims quickly spread to other courts, but the issue remained as to the necessity of a present physical injury for a successful claim. A majority of courts now recognize a claim without a present physical injury, but according to the Article a small growing minority of states now require a physical injury. The Article then examines a split among courts as to whether medical monitoring claims qualify for class certification because of the nature of the damages sought. The Article concludes that the disparity of judicial rulings addressing medical monitoring claims indicates an undue stress on the judicial system that should be resolved with litigation.

Mr. Garner is a partner and Mr. Kornman is a senior associate at New Orleans' Sher Garner Cahill Richter Klein McAlister & Hilbert. Mr. Coats is currently in law school at Tulane University and will join the firm in August 2000.

[30 ELR 10024]

Medical monitoring is one of a growing number of nontraditional torts employed to compensate people who have been exposed to toxic substances. Medical monitoring claims seek recovery for the costs of periodic, long-term diagnostic testing used to detect the onset of latent injuries or diseases caused by exposure to toxics or other tortious acts. This testing will ostensibly decrease a claimant's overall damages pursuant to the early detection of the latent condition.

Medical monitoring claims, also known as medical surveillance claims, do not seek compensation for an unquantifiable injury. Rather, these claims are meant to reimburse specific monetary damages spent on periodic, future medical examinations. Therefore, in a medical monitoring claim, the injury for which redress is sought is the expenditure for medical tests, a cost that would not have been incurred absent exposure to the toxic chemical or the commission of the tortious act.¹

Although such claims have been asserted with increasing frequency, a review of the relevant case law indicates that the courts are still grappling with some basic issues surrounding these claims. These issues include: (1) whether there is an independent cause of action for medical monitoring; (2) whether a present physical injury is required; (3) what type of award is appropriate; and (4) whether such a claim is suitable for class action treatment.

Contrast With Similar Claims

To better understand the quality and nature of such a cause of action, it is not only important to understand what medical monitoring is, one should also know what it is not.

In addition to claims for medical monitoring, courts have also been confronted with two similar types of claims: (1) increased or enhanced risk of future harm, and (2) fear of developing a serious injury or disease. Although these claims also arise out of latent disease processes, they involve fundamentally different kinds of injury and compensation.

Increased or Enhanced Risk of Future Harm

A plaintiff who claims he is at an increased or enhanced risk may assert that the potential effect to his health and life expectancy should be presently compensable, proportionately reduced to reflect the chance that such injury may never actually manifest.² Such claims are based solely on the chance that the plaintiff could develop an injury at a later date, not on the expenditure of funds to protect against that injury. By contrast, medical monitoring claims do not seek compensation for the unquantifiable injury, but rather the specific monetary damages measured by the cost of future medical examinations.³

[30 ELR 10025]

Fear of Developing a Serious Injury or Disease

A fear of future disease claim seeks damages for the present emotional distress resulting from a plaintiff's fear of contracting a future disease (typically cancer) proximately caused by exposure to a disease-causing substance. In Simmons v. Pacor, Inc.,⁴ the plaintiff was exposed to asbestos while serving in the U.S. Navy between 1943 and 1963, and between 1963 and 1974 while employed as an electronics technician in the Philadelphia Naval Shipyard.⁵ In 1982, at 56 years of age, the plaintiff underwent a chest x-ray which revealed pleural thickening.⁶ The plaintiff was informed that this thickening was the result of his exposure to asbestos and that such exposure had increased his risk of contracting cancer.⁷ According to the plaintiff, this information caused him to feel "upset" and "afraid," and his fear of contracting cancer affected his work and had an adverse impact on his family relationships.⁸

After examining the issue, the Pennsylvania Supreme Court concluded that although the plaintiff's "fear presently exists, we hold that because asymptomatic pleural thickening is not a sufficient physical injury, the resultant emotional distress damages are likewise not recoverable."⁹ The court relied on the general rule "that there can be no recovery of damages for injuries resulting from fright or nervous shock or mental or emotional disturbances or distress unless they are accompanied by physical injury or physical impact."¹⁰ Furthermore, the court noted that awarding such damages would lead to inequitable results by allowing plaintiffs to obtain damages even though the feared disease never came to fruition.¹¹

In so holding, however, the court explicitly recognized a limited exception regarding damages for expenses incurred in the medical surveillance of the condition:

Although we hold that awarding damages for the increased risk and fear of cancer is contrary to the established jurisprudence of this Commonwealth, we find that recovery for medical monitoring is appropriate and just.

Unfortunately, although Appellants' experts recommended medical monitoring of the disease, Appellants have not sought relief upon those grounds and are therefore not entitled to such expenses.¹²

That court, therefore recognized that while a claim for fear of developing a future disease is inherently speculative, medical monitoring claims are not, because the issue addressed "is the less conjectural question of whether the plaintiff needs medical surveillance."¹³

Development of the Medical Monitoring Claim

One of the first cases to discuss medical monitoring was Friends for All Children, Inc. v. Lockheed Aircraft Corp.,¹⁴ a case outside of the toxic tort arena. Suit was brought on behalf of 149 Vietnamese orphans who were aboard an airplane when it crashed in Vietnam. Although the orphans displayed no physical symptoms, the plaintiffs alleged that the children suffered from a neurological disorder known as Minimal Brain Dysfunction sustained as a result of cabin decompression and the impact of the crash.¹⁵

Among other damages, the plaintiffs sought the cost of medical monitoring even though they could not prove that the children had been physically injured. The defendant asked the court to dismiss this cause of action, calling these damages "speculative,"¹⁶ and arguing that such a cause of action was not cognizable without proof of an actual physical injury. The U.S. Court of Appeals for the District of Columbia Circuit disagreed, holding that medical surveillance expenses were recoverable without proof of an actual physical injury. Noting that the Restatement (Second) of Torts § 7 defined "injury" as "the invasion of any legally protected interest of another,"¹⁷ the court concluded:

It is difficult to dispute that an individual has an interest in avoiding expensive diagnostic examinations just as he or she has an interest in avoiding physical injury. When a defendant negligently invades this interest, the injury to which is neither speculative nor resistant to proof, it is elementary that the defendant should make the plaintiff whole by paying for the examinations.¹⁸

To further demonstrate support for its conclusion that proof of an actual injury was not required, the court set forth what has become an often quoted hypothetical:

Jones is knocked down by a motorbike which Smith is riding through a red light. Jones lands on his head with some force. Understandably shaken, Jones enters a hospital where doctors recommend that he undergo a battery of tests to determine whether he has suffered any internal head injuries. The tests prove negative, but Jones sues Smith solely for what turns out to be the substantial cost of the diagnostic examinations.¹⁹

The court noted, however, that the need for such diagnostic testing "must be supported by testimony of competent medical experts."²⁰ The court accepted the plaintiffs' evidence that the orphans were at increased risk of brain damage as a result of the crash and that they had a need for periodic diagnostic tests. Accordingly, the court ordered the defendant to pay for the costs of the tests.

Medical monitoring did not gain widespread attention, however, until 1987 in Ayers v. Township of Jackson,²¹ where 339 residents alleged that waste leaching from a land-fill contaminated their well water. The jury awarded $ 8,204.500 to cover the costs of annual medical surveillance that the plaintiffs' expert had testified would be required because of the increased susceptibility to cancer and [30 ELR 10026] other diseases.²² In upholding the medical monitoring award, the New Jersey Supreme Court established the initial factors for courts to use in considering whether to award medical monitoring costs:

The cost of medical surveillance is a compensable item of damages where the proofs demonstrate, through reliable expert testimony predicated upon the significance and extent of exposure to chemicals, the toxicity of the chemicals, the seriousness of the diseases for which individuals are at risk, the relative increase in the chance of onset of disease in those exposed, and the value of early diagnosis, that such surveillance to monitor the effect of exposure to toxic chemicals is reasonable and necessary.²³

The Ayers court identified several reasons in support of its ruling. First, the existence of a substantial remedy prior to the manifestation of injury could force potential defendants to exercise due care.²⁴ Second, the benefits of early testing and possible diagnosis could prevent serious injury and reduce defendants' overall costs.²⁵ Third and finally, people wrongfully exposed to hazardous substances should not have to incur their own medical expenses in order to monitor the effects of the exposure.²⁶ The court also noted that the use of a court-supervised fund to pay medical monitoring claims, rather than a lump-sum award, would generally be more efficient, and should be the general rule unless it was shown that it would be impractical or inappropriate in a particular case.²⁷

The next significant case dealing with the issue of medical monitoring was decided by the U.S. Third Circuit Court of Appeals in In re Paoli Railroad Yard PCB Litigation (Paoli I),²⁸ a toxic tort case asserted by 38 people who had either worked or lived adjacent to the Paoli railroad yard, an electric railcar maintenance facility serving the Philadelphia suburbs. The plaintiffs' primary claim was that they had contracted a variety of illnesses as the result of exposure to polychlorinated biphenyls (PCBs).²⁹

After analyzing cases like Friends for All Children and Ayers, the Third Circuit predicted that Pennsylvania would recognize a cause of action for medical monitoring and set forth the following four-element standard that would establish the cause of action:

1. Plaintiff was significantly exposed to a proven hazardous substance through the negligent actions of the defendant.

2. As a proximate result of exposure, plaintiff suffers a significantly increased risk of contracting a serious latent disease.

3. That increased risk makes periodic diagnostic medical examinations reasonably necessary.

4. Monitoring and testing procedures exist which make the early detection and treatment of the disease possible and beneficial.³⁰

According to the court, "these factors would, of course, be proven by competent expert testimony."³¹ The court went on to discuss the policy reasons for permitting a medical monitoring claim:

Medical monitoring claims acknowledge that, in a toxic age, significant harm can be done to an individual by a tortfeasor, notwithstanding latent manifestation of that harm. Moreover, as we have explained, recognizing this tort does not require courts to speculate about the probability of future injury. It merely requires courts to ascertain the probability that the far less costly remedy of medical supervision is appropriate. Allowing plaintiffs to recover the cost of this care deters irresponsible discharge of toxic chemicals by defendants and encourages plaintiffs to detect and treat their injuries as soon as possible. These are conventional goals of the tort system as it has long existed in Pennsylvania.³²

In In re Paoli Railroad Yard PCB Litigation (Paoli II),³³ the Third Circuit modified the four-element standard in light of the Utah Supreme Court's holding in Hansen v. Mountain Fuel Supply Co.³⁴ by adding the requirement that the monitoring regime must be "different than the one that would have been prescribed in the absence of the particular exposure."³⁵ Two years later in Simmons,³⁶ the Third Circuit's prediction that Pennsylvania would recognize claims for medical monitoring came to fruition when the Pennsylvania Supreme Court, while holding that a claim for the increased risk and fear of cancer was contrary to the established jurisprudence of the commonwealth, acknowledged that in Pennsylvania, the "recovery for medical monitoring is appropriate and just."³⁷

A year after Simmons, the Pennsylvania Supreme Court was given the chance to do more than comment on the subject of medical monitoring in Redland Soccer Club, Inc. v. Department of the Army.³⁸ In that case, a soccer club filed suit against the U.S. Department of the Army and the U.S. Department of Defense alleging that the disposal of hazardous materials at a site formerly part of the New Cumberland Army Depot in south-central Pennsylvania had caused them harm and sought the establishment of a medical monitoring trust fund.³⁹ The court noted:

Although we recognized a cause of action for medical monitoring in Simmons, the plaintiffs there did not seek relief on that ground. Thus we did not have the opportunity to articulate the specific elements of a claim for medical monitoring in Simmons.

We believe . . . that Paoli I, Paoli II and the Redland federal action provide a persuasive approach to defining the elements of a cause of action for medical monitoring. Unfortunately, the nuances added to Paoli I in Paoli II and Redland make the verbatim adoption of the Paoli I test impractical. Therefore, we find it necessary to formulate our own standards. Accordingly, we hold that a [30 ELR 10027] plaintiff must prove the following elements to prevail on a common law claim for medical monitoring:

(1) exposure greater than normal background levels;

(2) to a proven hazardous substance;

(3) caused by the defendant's negligence;

(4) as a proximate result of the exposure, plaintiff has a significantly increased risk of contracting a serious latent disease;

(5) a monitoring procedure exists that makes the early detection of the disease possible;

(6) the prescribed monitoring regime is different from that normally recommended in the absence of the exposure; and

(7) the prescribed monitoring regime is reasonably necessary according to contemporary scientific principals.⁴⁰

Unlike the elements set-forth in Paoli I (as modified by Paoli II) and Hanson, the elements established by the Pennsylvania Supreme Court in Redland Soccer Club do not require a plaintiff to show that a treatment currently exists for the disease that is the subject of medical monitoring. According to the court, such a requirement "would unfairly prevent a plaintiff from taking advantage of advances in medical science."⁴¹

This line of reasoning was recently adopted by the West Virginia Supreme Court of Appeals in Bower v. Westing-house Electric Corp.,⁴² wherein the court noted: "we agree with the Pennsylvania Supreme Court that a plaintiff should not be required to show that a treatment currently exists for the disease that is the subject of medical monitoring. In this age of rapidly advancing medical science, we are hesitant to impose such a static requirement."⁴³ The Bower decision is significant, not only because it makes West Virginia one of only two states that does not require the plaintiff to show that a treatment actually exists for the disease that is the subject of the claim for medical monitoring,⁴⁴ but it also added West Virginia to the growing list of states that recognize medical monitoring as a cause of action.

Prior to the Bower decision, the question of where West Virginia stood in regard to medical monitoring was uncertain. In Ball v. Joy Manufacturing Co.,⁴⁵ the U. S. District Court for the Southern District of West Virginia rejected the medical monitoring claims of workers exposed to toxic chemicals at their employer's facilities in West Virginia and Virginia. The court cited two reasons for its holding: (1) concern for the major economic impact on defendants that allowing such claims could produce; and (2) deference to the state legislatures on a basic policy question like novel medical monitoring claims.⁴⁶

After noting the difficult policy question that had been raised, the court deferred to either the legislature or the highest court of those states to decide whether such a new cause of action should be adopted.⁴⁷ On appeal, the U. S. Court of Appeals for the Fourth Circuit affirmed, noting that although "West Virginia allows the recovery of the reasonable value of future medical expenses necessitated by the defendant's wrong. . . such relief is only available where a plaintiff has sustained a physical injury that was proximately caused by the defendant."⁴⁸ The Fourth Circuit also noted that although the plaintiffs had proffered several public policy arguments for allowing medical monitoring where there has been no manifestation of physical injury, such considerations were better left to the respective legislatures and highest courts of West Virginia and Virginia.⁴⁹

Bower provided the opportunity for the highest court in West Virginia to ponder such considerations. Plaintiffs in that case originally brought their action in the Circuit Court of Marion County, West Virginia, on September 15, 1997.⁵⁰ In their complaint, the plaintiffs alleged that they were exposed to toxic substances as a result of the defendants' maintaining a cullet pile containing debris from the manufacture of light bulbs.⁵¹ The pile covered approximately 2 acres and was 42 feet deep at certain points.⁵² Tests of the debris pile performed in 1994 identified the presence of 30 potentially deleterious substances.⁵³ As relief for their claims of negligent maintenance and operation of the refuse pile, nuisance, trespass, negligent infliction of emotional distress, and intentional disregard for plaintiffs' health and safety, the plaintiffs sought consequential damages in the form of medical monitoring costs.⁵⁴

The defendants removed the case to the U.S. District Court for the Northern District of West Virginia, which granted the plaintiffs' motion to certify to the West Virginia Supreme Court of Appeals the following question as it was reformulated by the West Virginia Supreme Court of Appeals:

Whether, under West Virginia law, a plaintiff who does not allege a present physical injury can assert a claim for the recovery of future medical monitoring costs where such damages are the proximate result of defendant's tortious conduct?⁵⁵

Answering this question in the affirmative, the court noted that at least seven state appellate level courts had permitted claims for medical monitoring,⁵⁶ and a growing number [30 ELR 10028] of federal courts sitting in diversity had interpreted state law to permit such claims.⁵⁷ According to the court, these state and federal decisions represented an acknowledgment "that significant economic harm may be inflicted on those exposed to toxic substances, notwithstanding the fact that the physical harm resulting from such exposure is often latent."⁵⁸

Rejecting the contention that a claim for future medical expenses must rest upon the existence of present physical harm, the court relied on landmark decisions such as Friends for All Children, Ayers, and Paoli I for analytical refuge. After reviewing these early decisions, and the analysis applied therein, the West Virginia Supreme Court of Appeals concluded that "a cause of action exists under West Virginia law for the recovery of medical monitoring costs, where it can be proven that such expenses are necessary and reasonably certain to be incurred as a proximate result of a defendant's tortious conduct."⁵⁹

Having determined that a claim for medical monitoring costs was cognizable under West Virginia law, the court defined the elements necessary to sustain such a claim. Once again, relying on the foundation laid by cases such as Ayers, Paoli I, Hansen, and Redland Soccer Club, the court listed the elements needed in West Virginia to sustain a claim for medical monitoring:

The plaintiff must prove that:

(1) he or she has been significantly exposed;

(2) to a proven hazardous substance;

(3) through the tortious conduct of the defendant;

(4) as a proximate result of the exposure, plaintiff has suffered an increased risk of contracting a serious latent disease relative to the general population;

(5) diagnostic medical examinations different from what would be prescribed in the absence of the exposure; and

(6) monitoring procedures exist that make the early detection of a disease possible.⁶⁰

Although substantially adopting the test as established in Paoli I (as modified by Paoli II), and Hansen, the West Virginia Supreme Court of Appeals, like the Pennsylvania Supreme Court in Redland Soccer Club, eliminated the requirement that diagnostic monitoring must be tied to the existence of a proven treatment protocol. Noting that this significant divergence was based, in part, on the rationale expressed by the Pennsylvania Supreme Court in Redland Soccer, the court also noted the Louisiana Supreme Court Chief Justice Calogero's remarks in his concurring opinion in Bourgeois v. A.P. Green Industries, Inc.⁶¹:

One thing that . . . a plaintiff might gain [even in the absence of available treatment] is certainty as to his fate, whatever it might be. If a plaintiff has been placed at an increased risk for a latent disease through exposure to a hazardous substance, absent medical monitoring, he must live each day with the uncertainty of whether the disease is present in his body. If, however, he is able to take advantage of medical monitoring and the monitoring detects no evidence of disease, then, at least for the time being, the plaintiff can receive the comfort of peace of mind. Moreover, even if medical monitoring did detect evidence of an irreversible and untreatable disease, the plaintiff might still achieve some peace of mind through this knowledge by getting his financial affairs in order, making lifestyle changes, and, even perhaps, making peace with estranged loved ones or with his religion. Certainly, those options should be available to the innocent plaintiff who finds himself at an increased risk for a serious latent disease through no fault of his own.⁶²

Although Bower is the latest state supreme court case addressing the issue of medical monitoring, the Louisiana state legislature has recently enacted legislation on the subject. Prior to Bower, eight state appellate level courts had permitted claims for medical monitoring without the necessity of alleging any manifest injury.⁶³ The Bower decision added West Virginia to this list for a total of nine states whose own appellate level courts had decided the issue. In addition, federal courts have interpreted the law in eight other states, Guam, and the District of Columbia, to allow claims for medical monitoring without the need for a present injury.⁶⁴

Louisiana, however, may no longer be fertile ground for such a cause of action. The Louisiana legislature recently enacted Act 989, which amends Louisiana Civil Code Article 2315 to provide that "damages do not include costs for future medical treatment, services, surveillance, or procedures of any kind unless such treatment, services, surveillance, or procedures are directly related to a manifest physical or mental injury or disease."⁶⁵ Furthermore, the Louisiana legislature included language in this act that specifically addresses the Bourgeois decision: "The provisions of this Act are interpretative of Civil Code Article 2315 and are intended to explain its original intent, notwithstanding the contrary interpretation given in [Bourgeois] and all cases consistent therewith."⁶⁶ Although the legislature was extremely explicit in its barring of medical monitoring claims, plaintiffs with existing medical monitoring claims are expected to challenge the retroactive provision of that statute in the Louisiana courts.

Need for a Present Physical Injury

The recent enactment of Act 989 by the Louisiana state legislature has, in effect, legislatively overruled Bourgeois, thereby reducing by one the number of states which recognize a cause of action for medical monitoring without requiring [30 ELR 10029] a present physical injury.⁶⁷ It appears, therefore, that Louisiana has joined Connecticut, Delaware, Missouri, and Virginia in requiring plaintiffs to demonstrate a present physical injury to recover for future medical expenses.⁶⁸

For example, the Supreme Court of Connecticut addressed the issue of medical monitoring in the context of a claim under Connecticut's worker's compensation statute in Doe v. Stanford.⁶⁹ That court found that the plaintiff's exposure to certain communicable diseases constituted an injury as required by Connecticut tort law and thus allowed recovery of medical monitoring expenses.⁷⁰ In Bowerman v. United Illuminating,⁷¹ plaintiffs sought medical monitoring damages related to their exposure to asbestos, but unlike the plaintiff in Stanford, the plaintiffs in Bowerman failed to prove that they had sustained a physical injury. As a result, the Supreme Court of Connecticut held that the plaintiffs had failed to state a cause of action, but noted that they were not without a remedy: "If and when symptoms of an asbestos-related disease manifest themselves, they can bring a cause of action for their injuries."⁷²

Forms of Medical Monitoring Awards

At one time, questions existed as to whether awards for medical monitoring costs should take the form of lump-sum payments to plaintiffs or of payments into court-monitored escrow accounts, from which plaintiffs would receive money as expenses for periodic monitoring were actually incurred. Courts now generally agree that the latter is the preferable approach. For example, in Metro-North Commuter Railroad Co. v. Buckley,⁷³ the U.S. Supreme Court noted, with approval, jurisprudence finding that lump-sum damages are inappropriate in claims for medical monitoring.

The following reasons have been advanced in support of such a determination:

(1) An escrow fund mechanisminsures that plaintiffs actually use the money for medical surveillance⁷⁴

(2) A fund would provide a mechanism for crediting a defendant with payments from collateral sources in the event insurance benefits were available for some, if not all, of the plaintiffs⁷⁵

(3) A fund remedy will insure that medical monitoring damages will be paid only to compensate for medical examinations and tests actually administered, thus serving to limit the liability of defendants to the amount of expenses actually incurred⁷⁶; and

(4) If a court established trust fund is not depleted, the remainder could be returned to the defendant.⁷⁷

Class Action Treatment of Medical Monitoring Claims

Medical monitoring claims are often presented as class actions on behalf of a group of persons claiming exposure under similar circumstances or from a single source. Whether such claims are appropriate for class treatment, however, is the subject of considerable debate. This debate centers around the long-standing question of whether mass torts of any kind are appropriate for class action treatment.

Criteria for Certification

Plaintiffs seeking class certification must meet the requirements of Rule 23 of the Federal Rules of Civil Procedure or the corresponding local class action statute.

Pursuant to Rule 23(a), a party seeking class certification must satisfy each of the following elements: numerosity,⁷⁸ commonality,⁷⁹ typicality,⁸⁰ and representativeness.⁸¹ Once a party has established all four criteria under Rule 23(a), it must further demonstrate that at least one of the following requirements of Rule 23(b) is also present:

(1) There is a risk of incompatible standards of conduct for the party opposing certification if the actions are prosecuted separately⁸²

(2) Injunctive or declaratory relief would benefit the class as a whole⁸³; or

(3) Common questions predominate, and the class action is the superior method of adjudication.⁸⁴

[30 ELR 10030]

Class Actions in Mass Torts Generally

The general consensus is that mass torts are typically not well suited to class treatment. As recently noted by the U.S. Supreme Court in Ortiz v. Fibreboard Corp.,⁸⁵ "a mass accident resulting in injuries to numerous persons is ordinarily not appropriate for a class action because of the likelihood that significant questions, not only of damages, but of liability and defenses of liability would be present, affecting the individuals in different ways."⁸⁶

Most federal courts have historically refrained from certifying mass tort class actions.⁸⁷ However, a few have demonstrated a willingness to proceed with certification.⁸⁸ Although the majority of courts acknowledge the unique problems associated with class certification of mass tort actions, certification is not foreclosed in all cases. As noted by the Supreme Court in Amchem Products, Inc. v. Windsor⁸⁹

Even mass tort cases arising from a common cause or disaster may, depending upon the circumstances, satisfy the predominance requirement. The Advisory Committee for the 1966 revision of Rule 23, it is true, noted that "mass accident" cases are likely to present "significant questions, not only of damages but of liability and defenses of liability, . . . affecting the individuals in different ways." And the Committee advised that such cases are "ordinarily not appropriate" for class treatment. But the text of the rule does not categorically exclude mass tort cases from class certification, and district courts, since the late 1970s, have been certifying such cases in increasing number.⁹⁰

The Struggle With Class Certification of Medical Monitoring Claims

Courts in seven states—Illinois, Kentucky, New Jersey, Pennsylvania, Texas, Washington, and West Virginia—have recently granted class certification of medical monitoring claims for residents of their states who have ingested diet drugs,⁹¹ thus demonstrating the reality behind the Supreme Court's acknowledgment that mass tort cases are not categorically excluded from class certification. This chorus of class certification medical monitoring rulings arises from allegations that Pondimin and Redux manufacturers knew of, but concealed from physicians and the U.S. Food and Drug Administration, risks of valvular heart damage and/or primary pulmonary hypertension.

Although these state courts have demonstrated a willingness to certify such medical monitoring claims, the cases have not been addressed by those states' courts of appeal, which could decertify the actions. A review of the relevant cases indicates that like mass torts in general, most courts addressing class certification for medical monitoring claims have rejected class treatment.

One of the first cases to deal with the appropriateness of class treatment for a medical monitoring claim was Askey v. Occidental Chemical Corp.⁹² In that case, plaintiffs sought certification of a class of persons and entities for personal injuries and property damage caused by the alleged discharge of toxic substances from a landfill. The court affirmed the trial court's denial of class certification holding:

The fact that the future expense of medical monitoring may be recovered as an element of consequential damages, however, does not mean that in cases such as the one at hand class certification should necessarily be allowed. . . .

Not everyone who has lived in the designated area since 1954 when the chemicals were first disposed of in the landfill and who believes or claims that he has been exposed to toxic chemicals is entitled to future medical expenses. The only fact truly common to the proposed class . . . is that all of its members live or have lived in an area adjacent to the landfill at some time during the last [30 ELR 10031] 30 years. . . . Consequently, there is no way to determine as a threshold matter, the identity of those persons who may need medical monitoring. Thus, plaintiffs have not satisfied their burden of showing the existence of a genuine class and we conclude that certification of a class encompassing persons requiring medical monitoring was properly denied.⁹³

Shortly after Askey, the U. S. District Court for the Middle District of Pennsylvania declined to certify a medical monitoring class in Kuhn v. Skyline Corp.⁹⁴ In that case the plaintiffs, who were seeking a medical monitoring class arising out of alleged latent injuries from exposure to formaldehyde in mobile homes, pointed to the court's earlier decision in In re Three Mile Island,⁹⁵ wherein the court had certified a medical monitoring class.

The court declined certification noting that individual issues would predominate over issues common to the class.⁹⁶ Furthermore, in response to the plaintiffs' reliance on the court's granting class treatment in In re Three Mile Island, the court stated:

Although we accepted the Magistrate's recommendation and certified that class, and although we stated at that time that a class certification ruling is not the appropriate vehicle for determining whether plaintiffs have a [medical monitoring] claim upon which relief can be granted, we will not, for the sake of formalistic consistency, compound an error. The medical monitoring class in TMI never came to fruition. Instead, there was a settlement which created a public health fund. . . .

. . . .

. . . Upon reflection, this court is now of the opinion that had the above cited settlement not been achieved, the TMI class action would likely have been decertified . . . .⁹⁷

In the years since Askey and Kuhn, courts have continued to deny class certification of medical monitoring claims for various reasons.⁹⁸

In Boggs v. Divested Atomic Corp.,⁹⁹ residents within six miles of a radioactive materials plant sought class certification to assert, among other claims, a claim for medical monitoring. After analyzing the requirements of numerosity, commonality, typicality, and adequacy of representation,¹⁰⁰ the court granted certification under Rule 23(b)(1)(A) noting that "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."¹⁰¹

Equitable or Injunctive Relief Under Rule 23(b)(2)

In Day v. NLO,¹⁰² the U.S. District Court for the Southern District of Ohio held that a class action, which included a claim for medical monitoring, was properly certified. In so doing, the court elaborated on what has become an important issue in certifying such classes: the question of Rule 23(b)(2) certification and injunctive relief.

Day involved a class action brought by employees and frequenters of a nuclear weapons manufacturing plant, National Lead of Ohio, for exposure to radiation. The court held that class certification on plaintiffs' medical monitoring claims was appropriate under Rule 23(b)(2) for injunctive relief.¹⁰³ The defendants argued that such relief in the form of a court-supervised medical monitoring program did not constitute injunctive relief because the defendants would simply pay money to finance the program.¹⁰⁴ Therefore, according to the defendants, the claim was nothing more than an action for damages, making Rule 23(b)(2) inapplicable.¹⁰⁵ The court rejected the defendants' argument, noting:

[A] court may also establish an elaborate monitoring program of its own, managed by court-appointed court-supervised trustees, pursuant to which a plaintiff is monitored by particular physicians and the medical data produced utilized for group studies. In this situation, a defendant, of course, would finance the program as well as being required by the court to address issues as they develop during program administration. Under these circumstance[s], the relief constitutes injunctive relief as required by rule 23(b)(2).¹⁰⁶

The determining factor for the court in Day was not whether the defendant would be required to pay money for the monitoring program. Instead, the court focused on how the money traveled from defendant to plaintiff. In the court's opinion, if the money paid by the defendants was managed by the court, then the relief constituted equitable or injunctive relief under Rule 23(b)(2).¹⁰⁷

In Cook v. Rockwell International,¹⁰⁸ the U.S. District Court for the District of Colorado, like the court in Day, certified a medical monitoring class under Rule 23(b)(2), finding that the relief sought was injunctive and thus appropriate under the rule. Eighteen days after the court certified the medical monitoring class, the Tenth Circuit Court of Appeals held in Building & Construction Department v. [30 ELR 10032] Rockwell International Corp.,¹⁰⁹ that claims for medical monitoring were essentially requests for monetary damages.¹¹⁰ In light of the Tenth Circuit ruling, the district court reconsidered its certification of the medical monitoring class. The Cook court stated that the test for certification under Rule 23(b)(2) is "not the relief sought by the plaintiffs but whether the crux of the action is for money damages."¹¹¹

In opposing the decertification, the plaintiffs, unable to cite to higher authority, ignored the Tenth Circuit's announcement in Building & Construction Department that claims for medical monitoring were essentially requests for monetary damages, and relied instead on district court decisions such as Day. Noting the plaintiffs' failure to address the Tenth Circuit's decision, the court stated the following:

Since the initial certification opinion, the Tenth Circuit has stated unequivocally that the identical type of medical monitoring relief to that sought here is "essentially for damages." . . . I am therefore constrained to reverse my previous finding and to conclude that the instant medical monitoring claim seeks primarily money damages. In these circumstances the certification of the medical monitoring class under Rule 23(b)(2) is inappropriate and I hereby decertify that class.¹¹²

Determining What Type of Relief Is Being Sought—Injunctive Versus Monetary Damages

In Boughton v. Cotter Corp.,¹¹³ the Tenth Circuit noted that the test for certification under Rule 23(b)(2) is not the relief sought by the plaintiffs, but, rather, whether the crux of the action is for money damages. In Day,¹¹⁴ the determinative factor for the court, in assessing whether the medical monitoring claim could be certified as a Rule 23(b)(2) class was the fact that the plaintiffs sought the establishment of a court-supervised fund.¹¹⁵ Although characterized by the plaintiffs and the court as injunctive, the ultimate relief could only be provided after the medical monitoring program was funded by the defendants. Such a result, however, when analyzed pursuant to the reasoning of the court in Dhamer v. Bristol-Myers Squibb Co.,¹¹⁶ would most likely be considered no different than traditional money damages, and therefore not suitable as injunctive relief under Rule 23(b)(2).

In Dhamer, the plaintiff sought to certify a medical monitoring class of all U.S. residents who purchased and used Stadol Nasal Spray, a prescription pain relief product, pursuant to Rule 23(b)(2).¹¹⁷ The court, citing to Day, acknowledged that a "medical monitoring claim may properly be classified as injunctive relief and certified under Rule 23(b)(2)."¹¹⁸ However, after reviewing the specific requests for relief, the court determined that the plaintiff had failed to meet the standard for class certification under Rule 23(b)(2):

Plaintiff . . . seeks relief in the form of sending notification of the addictive nature of the drug to individuals who use Stadol NS; a procedure for identifying Stadol NS users who are addicted to the drug; funding for studies on the long-term effects of Stadol NS on its users; funding for research into possible cures for the detrimental effect of Stadol NS; and a program for the sharing of information related to the diagnosis and treatment of drug addiction and other injuries from Stadol NS. If the relief being sought were to require defendant to perform these functions, the relief would be injunctive in nature. The relief sought, however, extends beyond injunctive relief. The plaintiff seeks funding for treatment, this alters the nature of the relief requested making plaintiff's claims no different than traditional money damages claims.¹¹⁹

Although characterized by the plaintiff as injunctive relief, the court noted that a claim for damages cannot be transformed into an equitable action by asking for injunctive relief that orders the payment of money.¹²⁰ Furthermore, the court went on to note that "even if plaintiff's ultimate request for relief were not monetary, the proposed Medical Monitoring Class could not be certified under Rule 23(b)(2) because the central issue of addiction presented is so individual in nature as to preclude maintenance of the classes."¹²¹

In the wake of cases like Day and Dhamer, federal courts have indicated that the dispositive factor in assessing whether a medical monitoring claim can be certified as a Rule 23(b)(2) class is to determine what type of relief the plaintiffs actually are seeking. As demonstrated by the decisions in Day and Dhamer, however, there are two distinct approaches used in reaching such a determination.

Under the Day approach, if the plaintiff is seeking the establishment of a court-supervised medical monitoring program through which the class members will receive periodic examinations, then the plaintiff's medical monitoring claim can be properly characterized as a claim seeking injunctive relief.¹²²

Under the Dhamer approach, however, the fact that the plaintiff seeks the establishment of a court-supervised medical monitoring program is not the dispositive factor. If the relief sought by the plaintiff requires the defendant to fund such a program, then the relief sought extends beyond injunctive relief, thus making the plaintiff's claims no different than traditional money damages and, therefore, inappropriate for certification under Rule 23(b)(2).¹²³

Conclusion

The law surrounding claims for medical monitoring is relatively new and ever evolving. Although asserted with increasing frequency, the courts continue to grapple with the issues associated with such claims. Eighteen states currently recognize a cause of action for medical monitoring. [30 ELR 10033] However, there is still no consensus on the particular aspects of such a claim. While some states require a medical monitoring claimant to demonstrate a present physical injury, other courts only require that claimant demonstrate that he was exposed to a toxic material. And while some courts have granted class certification of medical monitoring claims, others have refused to do so on the grounds that such claims, like mass torts generally, are not well suited to class treatment.

The disparity of judicial rulings and confusion regarding medical monitoring demonstrate the strain of the system to accommodate this new type of claim. As stated by Justice Rehnquist in his concurrence in Ortiz,¹²⁴ regarding mass torts in general, this type of claim "cries out for a legislative solution."¹²⁵

1. See Ayers v. Township of Jackson, 525 A.2d 287, 312, 17 ELR 20858, 20869 (N.J. 1987).

2. See In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 850, 21 ELR 20184, 20195 (3d Cir. 1990), cert. denied, 499 U.S. 961 (1991); Ayers, 525 A.2d at 304, 17 ELR at 20867.

3. See id.

4. 674 A.2d 232 (Pa. 1996).

5. See id. at 233.

6. See id.

7. See id.

8. See id.

9. Id. at 238.

10. Id.

11. See id.

12. Id. at 240.

13. See id. n.11 (quoting In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 850-851, 21 ELR 20184, 20195 (3d Cir. 1990) (Paoli I).

14. 746 F.2d. 816 (D.C. Cir. 1984).

15. See id. at 819.

16. See id. at 826.

17. Id.

18. Id.

19. Id. at 825.

20. Id. at 826 n.15.

21. 461 A.2d 184, 13 ELR 20631 (N.J. Super. Ct. Law Div. 1983), modified, 493 A.2d 1314, 15 ELR 20642 (N.J. Super, Ct. App. Div. 1985), aff'd in part, 106 N.J. 557, 525 A.2d 287, 17 ELR 20858 (N.J. 1987).

22. See Ayers, 525 A.2d at 292, 17 ELR at 20859.

23. Id. at 312-13, 17 ELR at 20870.

24. See id. at 312, 17 ELR at 20869.

25. See id.

26. See id.

27. See id. at 314, 17 ELR at 20870-71.

28. 916 F.2d 829, 21 ELR 20184 (3d Cir. 1990).

29. See id. at 835, 21 ELR at 20185.

30. Id. at 852, 21 ELR at 20196.

31. Id. (citing Ayers 525 A.2d at 312, 17 ELR at 20870).

32. Id. (internal footnote omitted).

33. 35 F.3d 717, 25 ELR 20989 (3d Cir. 1994).

34. 858 P.2d 970 (Utah 1993).

35. Paoli II, 35 F.3d at 789, 25 ELR at 21021 (quoting Hansen, 858 P.2d at 980), cert. denied sub nom. General Elec. Co. v. Ingram, 513 U.S. 1190 (1991).

36. 674 A.2d 232 (Pa. 1996).

37. Id. at 240.

38. 696 A.2d 137 (Pa. 1997).

39. See id. at 139.

40. Id. at 145-46.

41. Id. at 146 n.8.

42. No. 25338, 1999 WL 518926, at *1 (W. Va. July 19, 1999).

43. Id. at *6.

44. As of September 1999, the date of this writing only Pennsylvania and West Virginia do not require a showing that a treatment exists for the disease that is the subject of medical monitoring.

45. 755 F. Supp. 1344 (S.D. W. Va. 1990), aff'd sub nom. 940 F.2d 651 (4th Cir. 1991) (unpublished).

46. The court's concern relating to the economic impact was based on the observation that as a result of allowing medical monitoring claims by exposed but uninjured plaintiffs, future injured plaintiffs would have no solvent defendant to pursue. See id. at 1372, aff'd sub nom. 940 F.2d at 651.

47. See id.

48. See id. at 1344, 1371, aff'd sub nom. 940 F.2d at 651.

49. See id.

50. See Bower v. Westinghouse Elec. Corp., No. 25338, 1999 WL 518926, at *1 (W. Va. July 19, 1999).

51. See id.

52. See id. at *2.

53. See id.

54. See id.

55. Id. at *3.

56. See id. (The court noted the following cases that represent state court decisions permitting medical monitoring: Bourgeois v. A.P. Green Indus., Inc., 716 So. 2d 355 (La. 1998); Redland Soccer Club, Inc. v. Department of the Army, 549 Pa. 178, 696 A.2d 137, 145 (Pa. 1997); Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 25 Cal. Rptr. 2d 550, 863 P.2d 795, 822-23 (Cal. 1993) (en banc); Hansen v. Mountain Fuel Supply Co., 858 P.2d 970, 979-80 (Utah 1993); Burns v. Jaquays Mining Corp., 156 Ariz. 375, 752 P.2d 28 (Ariz. Ct. App. 1987); Ayers v. Township of Jackson, 525 A.2d 287, 17 ELR 20858 (N.J. 1987); Askey v. Occidental Chem. Corp., 102 A.D.2d 130, 477 N.Y.S.2d 242 (N.Y. 1984).)

57. Bower, 1999 WL 518926, at *3. (The court noted the following cases that represent federal courts interpreting state law to permit claims for medical monitoring: Carey v. Kerr-McGee Chem. Corp., 999 F. Supp. 1109 (N.D. Ill. 1998) (applying Illinois law). Cf. Carey v. Kerr-McGee Chem. Corp., No. 96 C 8533, 1999 WL 635669 (N.D. Ill. Aug. 18, 1999); Burton v. R.J. Reynolds Tobacco Co., 884 F. Supp. 1515 (D. Kan. 1995) (applying Kansas law); Day v. NLO, 851 F. Supp. 869 (S.D. Ohio 1994) (applying Ohio law); Bacchic v. Ashland Oil, Inc., 819 F. Supp. 530 (S.D. W. Va. 1993) (applying Kentucky law); Cook v. Rockwell Int'l Corp., 755 F. Supp. 1468 (D. Colo. 1991) (applying Colorado law); In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 21 ELR 20814 (3d Cir. 1990) (applying Pennsylvania law).)

58. Bower, 1999 WL 518926, at *3.

59. Id. at *5.

60. Id.

61. 716 So. 2d 355 (La. 1998).

62. Bower, 1999 WL 518926, at *6 (quoting Bourgeois, 716 So. 2d at 363) (Calogero, C.J., concurring).

63. Alabama, Arizona, California, Louisiana, New Jersey, New York. Pennsylvania, and Utah.

64. Colorado, Illinois, Kansas, Kentucky, Minnesota, Ohio, Vermont, and Washington.

65. House Bill No. 1784, Reg. Sess. (La. 1999).

66. Id.

67. As of September 1999, the following 18 states (not including Louisiana), territories, or districts have recognized through either a state appellate or federal court interpreting the state law a cause of action for medical monitoring without the need for the plaintiff to prove a present manifest injury: Alabama, Arizona, California, Colorado, District of Columbia, Guam, Illinois, Kansas, Kentucky, Minnesota, New Jersey, New York, Ohio, Pennsylvania, Utah, Vermont, Washington, and West Virginia. Courts in three other states, Arkansas, Florida, and Indiana, have indicated in dicta that they do currently recognize or would recognize a claim for medical monitoring should such a claim be presented: See Baker v. Wyeth-Ayerst Lab. Div., 992 S.W.2d 797 (Ark. 1999); Eagle-Picher Indus., Inc. v. Cox, 481 So. 2d 571 (Fla. App. 3d. Dist. 1985); Gray v. Westinghouse Elec. Corp., 624 N.E.2d 49 (Ind. App. 4th Dist. 1993).

68. See Thomas v. FAG Bearings Corp., 846 F. Supp. 1400, 24 ELR 21143 (W.D. Mo. 1994) (Missouri); Ball v. Joy Tech., Inc., 940 F.2d 651 (4th Cir. 1991) (Virginia); Bowerman v. United Illuminating, No. X04CV 940115436S, 1998 WL 910271, at *1 (Conn. Super. Ct. Dec. 15, 1998) (Connecticut); Mergenthaler v. Asbestos Corp., 480 A.2d 647 (Del. 1984) (Delaware).

69. 699 A.2d 52 (1997).

70. See id. at 56-57.

71. No. X04CV 940115436S, 1998 WL 910271, at *1 (Conn. Super. Ct. Dec. 15, 1998).

72. Id. at *10. See also Mergenthaler, 480 A.2d at 651 (the Supreme Court of Delaware held that a claim for medical surveillance is maintainable under Delaware law only when the plaintiff can show either some "direct contact" with the toxic substance or some manifest injury or condition attributable to the substance).

73. 521 U.S. 424, 438-44 (1997) (denying claim for lump-sum medical monitoring award but leaving open the issue of availability of a "more finely tailored" recovery for medical monitoring); See also Ayers v. Township of Jackson, 525 A.2d 287, 314, 17 ELR 20858, 20870-20871 (N.J. 1987) (recommending in future cases creation of a court-supervised fund to administer medical surveillance payments); Potter v. Firestone Tire & Rubber Co., 863 P.2d 795, 825 n.28 (Cal. 1987) (suggesting that a lump-sum damages award would be inappropriate); Hansen v. Mountain Fuel Supply Co., 858 P.2d 970, 982 (Utah 1993) (suggesting insurance mechanism or court-supervised fund as proper remedy).

74. See Ayers, 525 A.2d at 314, 17 ELR at 20871.

75. See id.

76. See Potter, 863 P.2d at 825 n.28.

77. See Hansen, 858 P.2d at 982.

78. See FED. R. CIV. P. 23(a)(1).

79. Id. 23(a)(2).

80. Id. 23(a)(3).

81. Id. 23(a)(4).

82. Id. 23(b)(1)(A).

83. Id. 23(b)(2).

84. Id. 23(b)(3).

85. 119 S. Ct. 2295 (1999).

86. Id. at 2314 n.20. (quoting FED. R. CIV. P. advisory committee notes).

87. Id. (class certification was impermissible as insufficient showing was made for limited fund or to establish inclusiveness of proposed class); Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 28 ELR 20173 (1997) (class certification requirements not satisfied); Barreras-Ruiz v. American Tobacco Co., 180 F.R.D. 194 (D.P.R. 1998) (denying motion to certify class of cigarette smokers); Fisher v. Bristol-Myers Squibb Co., 181 F.R.D. 365 (N.D. Ill. 1998) (denying certification of class harmed by drug); In re Ford Motor Co. v. Vehicle Paint Litig., 182 F.R.D. 214 (E.D. La. 1998) (denied mass tort class certification in fraudulent concealment case); Reilly v. Gould, Inc., 965 F. Supp. 588 (M.D. Pa. 1997) (class allegations dismissed in case of alleged exposure to toxic substances from battery plant); Barnes v. American Tobacco Co., 176 F.R.D. 479 (E.D. Pa. 1997) (decertifying class of cigarette smokers in Pennsylvania), aff'd, 161 F.3d 127 (3d Cir. 1998); Castano v. American Tobacco Co., 84 F.3d 734 (5th Cir. 1996) (decertifying national class of cigarette smokers); In re American Med. Sys., Inc., 75 F.3d 1069 (6th Cir. 1996) (decertifying class in penile implants products liability suit); In re Rhone-Poulenc Rore, Inc., 51 F.3d 1293 (7th Cir. 1995) (mandamus order entered directing lower court to decertify class of HIV infected hemophiliacs); Hurd v. Monsanto, 164 F.R.D. 234 (S.D. Ind. 1995) (class certification denied for workers allegedly exposed to PCBs); Ikonen v. Hartz Mountain Corp., __ F.R.D. 258 (S.D. Cal. 1988) (refusing to certify claims relating to allegedly harmful effects of tick spray); In re Tetracycline Cases, 107 F.R.D. 719 (W.D. Mo. 1985) (refusing to certify claims of tooth discoloration arising from the use of tetracycline); Mattoon v. City of Pittsfield, 128 F.R.D. 17 (D. Mass. 1989) (denying certification where no "one set of operative facts establishes liability" of multiple defendants); Brown v. SEPTA, Nos. 86-2229, 86-4037, 86-5886, 1987 WL 9273. at *1 (E.D. Pa. Apr. 9, 1987) ("most courts . . . have acknowledged the general rule that mass tort actions usually fail to satisfy the requirements of Rule 23(b)").

88. See, e.g., O'Conner v. Boeing North Am., Inc., 184 F.R.D. 311 (C.D. Cal. 1998) (certifying class in toxic tort landfill case); In re Agent Orange, 818 F.2d 145 (2d Cir. 1987) (affirming certification of class with respect to class-wide military contractor defense, although court noted that if action were based on civilian exposure during course of civilian activity, certification would have been in error); In re Diamond Shamrock Chem. Co., 725 F.2d 858 (2d Cir. 1984) (declining to issue writ of mandamus to decertify Agent Orange class), cert. denied, 465 U.S. 1067 (1984); Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 19 ELR 20404 (6th Cir. 1988) (upholding certification in toxic tort landfill case); In re Copley Pharm., Inc. "Albuterol" Prod. Liab. Litig., 158 F.R.D. 485 (D. Wyo. 1994) (certifying national class of persons as to common issues of liability, strict liability, breach of warranties, negligence per se, and declaratory relief), reaffirmed, 161 F.R.D. 456 (D. Wyo. 1995).

89. 521 U.S. 591, 28 ELR 20173 (1997).

90. Id. at 625, 28 ELR at 20180 (citing to FED. R. CIV. P. advisory committee's notes codified at 28 U.S.C. app. p. 632).

91. See Rhyne, v. American Home Prods. Corp., No. 98 CH 04099 (Ill. Cir., Cook Co., Chanc. Div.) (Illinois); Guard v. A.H. Robbins Co., No. 98-CI-795. (Ky. Cir., Boone Co.) (Kentucky); Vadino v. American Home Health Prods. Corp., No. MID-L-425-98 (Middlesex Co., N.J.) (New Jersey); In re Pennsylvania Diet Drugs Litig., Master Docket No. 9709-3162 (1st Judicial Dist. Pa.) (Pennsylvania); Earthman v. American Home Prods., Inc., Case No. 97-10-03790-CV (Montgomery Co., Tx.) (Texas); Fred St. John v. American Home Prods., Case No. 97-2-06368-4 (Spokane County, Wa.) (Washington); Birch v. American Home Prods. Corp., Civ. Action No. 97-V-204 (1-11) (W. Va. Cir. Ct.) (West Virginia).

92. 102 A.D.2d 130 (N.Y. App. Div. 1984).

93. Id. at 137-39.

94. Civ. A. No. 83-0942, 1984 WL 62775, at *1 (M.D.Pa. Aug. 3, 1984).

95. 87 F.R.D. 433 (M.D. Pa. 1980).

96. See Kuhn, 1984 WL 62775, at *5.

97. Id.

98. See, e.g., Brown v. SEPTA, Nos. 86-2229 et al., 1987 WL 9273, at *1 (E.D.Pa. Apr. 9, 1987) (denying class certification because of the individualized inquiries); Werlein v. United States, 746 F. Supp. 887, 21 ELR 20277 (D. Minn. 1990), vacated in part, 793 F. Supp. 898 (1992) (denying class action on basis that proof needed to sustain claims was not workable in a class action format); Barnes v. American Tobacco Co., 176 F.R.D. 479 (E.D. Pa. 1997), aff'd, 161 F.3d 127 (3d Cir. 1998) (initially refused to certify because plaintiffs could not satisfy superiority and predominance requirements, and because relief was deemed compensatory as opposed to equitable. Class was certified after plaintiffs filed an amended complaint. However, upon defendants' motion for reconsideration, the court decertified the class, holding that individual issues precluded class treatment.).

99. 141 F.R.D. 58 (S.D. Ohio 1991).

100. See id. at 63-66.

101. Id. at 67.

102. 851 F. Supp. 869 (S.D. Ohio 1994).

103. See id. at 885.

104. See id.

105. See id.

106. Id. (emphasis added).

107. The same rationale was applied by the U.S. District Court for the Western District of New York in Gibbs v. E.I. DuPont de Nemours & Co., 876 F. Supp. 475, 481, 25 ELR 20926, 20929 (W.D.N.Y. 1995) ("A court-administered fund which goes beyond payment of the costs of monitoring an individual plaintiff's health to establish pooled resources for the early detection and advances in treatment of the disease is injunctive in nature rather than 'predominantly money damages' and therefore is properly certified under Rule 23(b)(2)").

108. 151 F.R.D. 378 (D. Colo. 1993).

109. 7 F.3d 1487 (10th Cir. 1993).

110. See id. at 1492.

111. Cook v. Rockwell Int'l Corp., 181 F.R.D. 473, 479-80 (D. Colo. 1998).

112. Id. at 480.

113. 65 F.3d 823, 26 ELR 20196 (10th Cir. 1995).

114. 851 F. Supp. 869 (S.D. Ohio 1994).

115. See id. at 885.

116. 183 F.R.D. 520 (N.D. Ill. 1998).

117. See id. at 523-24.

118. Id. at 528.

119. Id. at 529 (emphasis added).

120. Dhamer, 183 F.R.D. at 529 (citing to Castano v. American Tobacco Co., 84 F.3d 734, 744 (5th Cir. 1996)).

121. Id.

122. 851 F. Supp. 869, 885 (S.D. Ohio 1994).

123. See Dhamer, 183 F.R.D. at 529.

124. 119 S. Ct. 2295 (1999).

125. Id. at 2324.