Wilson v. Brush Wellman, Inc.

817 N.E.2d 59, 103 Ohio St. 3d 538

• Court: Ohio Supreme Court
• Decided: November 17, 2004
• Docket: No. 2003-0048
• Status: Published

Opinions

O’Connor, J.

{¶ 1} We are asked to consider whether class certification under Civ.R. 23(B)(2) is proper in an action seeking to establish a medical-monitoring fund. Although under the proper circumstances court-ordered medical monitoring may be classified as injunctive relief, we hold that plaintiffs in this action fail to meet the cohesiveness requirement of the rule.

I. Facts and Procedural History

{¶ 2} Appellees-plaintiffs are members of unions within the Northwestern Ohio Building and Construction Trades Council. Plaintiffs were all employed at various times by contractors at the Brush Wellman Elmore plant from the 1950s through the 1990s. The Brush Wellman Elmore plant produces beryllium alloy for use in industrial applications. Plaintiffs allege that they were exposed to beryllium dust and fumes that were generated by manufacture of the alloy. Beryllium exposure can cause a lung ailment called chronic beryllium disease and other ailments. Some individuals may never show symptoms or develop any disease, while others can have serious impairments or even die as a result of their exposure.

{¶ 3} On February 14, 2000, John Wilson and six other union members filed a claim against appellant-defendant Brush Wellman, Inc., alleging negligence, strict liability in tort, statutory product liability, and engagement in ultrahazardous activities. Specifically within the negligence claim, plaintiffs alleged that Brush Wellman had failed to properly control and contain the beryllium, failed to train plaintiffs and proposed class members, failed to provide a safe place of employment, failed to monitor working conditions, and failed to warn plaintiffs and proposed class members of the dangers of beryllium. The complaint sought a medical-screening program to detect beryllium sensitivity as well as punitive damages.

{¶ 4} Plaintiffs moved the trial court to certify a class that would include all Northwestern Ohio Building and Construction Trades Council union members who worked at the Elmore plant from 1953 through December 31, 1999. After a hearing, the trial court held that although the proposed class met the requirements under Civ.R. 23(A),¹ it failed to satisfy any of the requirements of Civ.R. 23(B).

{¶ 5} ■ The trial court examined all three requirements of Civ.R. 23(B), finding that plaintiffs’ claims failed each. In reaching its decision, the court quoted our decision in Warner v. Waste Mgt., Inc. (1988), 36 Ohio St.3d 91, 95, 521 N.E.2d 1091: “Subsection (B)(1)(a) does not lend itself to mass tort claims, such as the one before us. Pursuant to this subsection, certification is permissible if separate actions could lead to incompatible standards of conduct.” (Emphasis sic.) The court concluded that differing standards of conduct were not likely to appear in this case if separate actions were pursued.

{¶ 6} The trial court held that Civ.R. 23(B)(2) certification was inappropriate because that subsection does not apply when the class is primarily seeking damages. Civ.R. 23(B)(2) applies when the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. The court relied upon Day v. NLO, Inc. (S.D.Ohio 1992), 144 F.R.D. 330, in holding that medical-monitoring damages, in addition to the punitive damages sought, do not constitute injunctive relief. The court noted that plaintiffs did not characterize their claim for medical monitoring as injunctive relief.

{¶ 7} The trial court went on to recognize that Civ.R. 23(B)(2) requires a showing that Brush Wellman acted or refused to act with respect to the class as a whole, commonly referred to as a cohesiveness requirement. The court found that there were disparate factual circumstances in the class that precluded certification.

{¶ 8} Plaintiffs also failed to satisfy Civ.R. 23(B)(3), according to the trial court. The court held that “individual questions in this case not only outnumber, but most importantly, outweigh any questions that are common to the class.” Having determined that plaintiffs failed to meet the requirements of Civ.R. 23(B), the court denied class certification.

{¶ 9} Plaintiffs appealed the denial of class certification. The appellate court, which considered certification under Civ.R. 23(B)(2) exclusively, held that “the trial court erred by finding this criteri[on] absent.” The court reasoned that because plaintiffs primarily sought medical surveillance and screening, which it determined were injunctive in nature, certification under Civ.R. 23(B)(2) was appropriate. The court held that the request for damages was incidental to the request for medical monitoring. The court failed to examine the cohesiveness of the suggested class.

{¶ 10} The cause is now before this court pursuant to our acceptance of Brush Wellman’s discretionary appeal.

II. Analysis

{¶ 11} The trial court’s determination that plaintiffs met the requirements of Civ.R. 23(A) was not challenged on appeal. Accordingly, the issue before us is whether the appellate court properly reversed the trial court’s finding that the requirements of Civ.R. 23(B) were not met. As we have previously stated, “while a trial court’s determination concerning class certification is subject to appellate review on an abuse-of-discretion standard, due deference must be given to the trial court’s decision. * * * A finding of abuse of discretion, particularly if the trial court has refused to certify, should be made cautiously.” Marks v. C.P. Chem. Co. (1987), 31 Ohio St.3d 200, 201, 31 OBR 398, 509 N.E.2d 1249.

{¶ 12} The appellate court, although it correctly described its charge under an abuse-of-discretion analysis, did not follow through with such an analysis. Rather than analyzing whether the trial court’s decision was “so palpably and grossly violative of fact or logic that it evidences not the exercise of will but the perversity of will, not the exercise of judgment but the defiance of judgment, not the exercise of reason but instead passion or bias,” Nakoff v. Fairview Gen. Hosp. (1996), 75 Ohio St.3d 254, 256-257, 662 N.E.2d 1, the appellate court held merely that the trial court “erred.” As this court is charged with considering issues of “public or great general interest,”² we do not reverse this case solely on the appellate court’s error but will also examine the propriety of the court’s underlying legal analysis.

{¶ 13} In reversing the trial court, the appellate court focused its attention solely on Civ.R. 23(B)(2), which states that class actions may be maintained if “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” This rule entails two requirements: (1) the action must seek primarily injunctive relief, and (2) the class must be cohesive.

A. Medical Monitoring as Injunctive Relief

{¶ 14} The first step in this inquiry is to determine whether the relief sought by plaintiffs is injunctive in nature. Our analysis begins with plaintiffs’ motion for class certification. The memorandum in support of the motion discussed at length the appropriateness of class certification under Civ.R. 23(B)(1)(a) and 23(B)(3). The motion briefly discusses Civ.R. 23(B)(2) as an alternative avenue of certification. The plaintiffs, however, stated, “Plaintiffs do not believe that their claim for medical monitoring is one for injunctive relief. Rather, Plaintiffs believe that their claim is one for damages, to recover the costs of adopting and implementing a medical surveillance program. However, if the Court decides to treat Plaintiffs’ claim as one injunctive relief [sic], then class certification under Ohio Rule of Civil Procedure 23(b)(2) would be appropriate.” The trial court relied heavily, and not inappropriately, upon the plaintiffs’ own characterization of their claim.

{¶ 15} Conversely, the appellate court considered it an error for the trial court to have held that class certification was inappropriate under Civ.R. 23(B)(2).³ The appellate court acknowledged that there is discordance among the courts, federal and state, on whether medical-monitoring relief is primarily compensatory or injunctive, yet decided this case without meaningful examination of such cases. Moreover, Ohio case law provides scant guidance for this question.

{¶ 16} In Marks v. C.P. Chem. Co., class certification was denied for individuals who had had foam insulation with toxic formaldehyde levels sprayed into their homes. The plaintiffs sought future diagnostic testing for class members in addition to damages. We declined to certify the class under Civ.R. 23(B)(2) because the “provision is inapplicable where the primary relief requested is damages.” Marks, 31 Ohio St.3d at 203, 31 OBR 398, 509 N.E.2d 1249. Marks is not dispositive of this case, however, as it is not clear from the opinion whether we characterized diagnostic testing as damages or whether we merely referred to other damages sought by the plaintiffs.

{¶ 17} More thorough guidance is provided from the federal courts, which have considered this issue on multiple occasions.⁴ Zinser v. Accufix Research Inst., Inc. (C.A.9, 2001), 253 F.3d 1180, provides a helpful recitation of the ways in which these cases have been decided. Certification under Civ.R. 23(B)(2) depends upon what type of relief is primarily sought, so where the injunctive relief is merely incidental to the primary claim for money damages, Civ.R. 23(B)(2) certification is inappropriate. The Zinser court stated, “Courts have split on whether medical monitoring relief is primarily compensatory or injunctive. Depending on the nature of the precise relief sought and the circumstances of the particular case, many courts have declined to certify medical monitoring classes when joined with requests for funding and compensation.” Id. at 1196.

-[¶ 18} The court went on to cite several decisions that declined to certify medical-monitoring classes for various reasons. Boughton v. Cotter Corp. (C.A.10, 1995), 65 F.3d 823, 827 (relief sought was primarily money damages); Cook v. Rockwell Internatl. Corp. (D.Colo.1998), 181 F.R.D. 473, 479-480 (even where relief sought was diagnostic testing and medical screening necessary to facilitate early detection and treatment, because of other relief sought, the suit was primarily one for damages); Arch v. Am. Tobacco Co. (E.D.Pa.1997), 175 F.R.D. 469, 483-485 (plaintiffs’ medical-monitoring program included a fund for treatment, which “drastically alters the nature of the relief requested by plaintiffs,” making it basically a traditional damage claim for personal injury); O’Connor v. Boeing N. Am., Inc. (C.D.Cal.1997), 180 F.R.D. 359, 378-379 (plaintiffs sought establishment of a reserve fund to pay for the cost of the medical-monitoring program, which included medical treatment of disease, as opposed to a court-established medical-monitoring program solely for the purposes of diagnosing disease and sharing information with class members).

{¶ 19} Recognizing the multitudinous variations that these claims may take, the United States District Court for the Southern District of Ohio demarcated injunctive versus compensatory relief as follows:

{¶ 20} “Relief in the form of medical monitoring may be by a number of means. First, a court may simply order a defendant to pay a plaintiff a certain sum of money. The plaintiff may or may not choose to use that money to have his medical condition monitored. Second, a court may order the defendants to pay the plaintiffs’ medical expenses directly so that a plaintiff may be monitored by the physician of his choice. Neither of these forms of relief constitute^] injunctive relief as required by rule 23(b)(2).

{¶ 21} “However, a court may also establish an elaborate medical monitoring program of its own, managed by court-appointed court-supervised trustees, pursuant to which a plaintiff is monitored by particular physicians and the medical data produced utilized for group studies. In this situation, a defendant, of course, would finance the program as well as being required by the court to address issues as they develop during program administration. Under these circumstances, the relief constitutes injunctive relief as required by rule 23(b)(2).” Day v. NLO, Inc., 144 F.R.D. at 335-336.

{¶ 22} Court supervision and participation in medical-monitoring cases is a logical and sound basis on which to determine whether the action is injunctive. It has the added advantage of being a bright-line test, which can be readily and consistently applied. We hereby adopt that guideline for making such determinations.

{¶ 23} Plaintiffs in this action seek an order for Brush Wellman to “pay for a reasonable medical surveillance and screening program,” punitive damages in excess of $25,000, and “[interest, costs, attorney fees and such other and further relief as the Court may deem just and proper.” Although plaintiffs’ merit briefs before this court state that the class sought court-supervised medical monitoring, we can find no such requests in the record below. The trial court did not abuse its discretion by concluding that plaintiffs’ complaint primarily sought damages. Although a request for court supervision could be easily added by an amended complaint, plaintiffs’ lack of cohesiveness is fatal.

B. Cohesiveness

{¶ 24} Plaintiffs’ class certification under Civ.R. 23(B)(2) fails for lack of cohesiveness. Although this court has not had an opportunity to address the cohesiveness requirement of Civ.R. 23(B)(2) class certification, there are myriad federal cases providing us guidance. Barnes v. Am. Tobacco Co. (C.A.3, 1998), 161 F.3d 127, 142-143, held, “[T]he cohesiveness requirement enunciated by both this court and the Supreme Court extends beyond Rule 23(b)(3) class actions. Indeed, a (b)(2) class may require more cohesiveness than a (b)(3) class. This is so because in a (b)(2) action, unnamed members are bound by the action without the opportunity to opt out.”

{¶ 25} The United States Supreme Court, discussing the (b)(3) predominance requirement, stated:

{¶ 26} “Predominance is a test readily met in certain cases alleging consumer or securities fraud or violations of the antitrust laws. * * * Even mass tort cases arising from a common cause or disaster may, depending upon the circumstances, satisfy the predominance requirement. The Advisory Committee for the 1966 revision of Rule 23, it is true, noted that ‘mass accident’ cases are likely to present ‘significant questions, not only of damages but of liability and defenses of liability, * * * affecting the individuals in different ways.’ Adv. Comm. Notes, 28 U.S.C.App. p. 697. And the Committee advised that such cases are ‘ordinarily not appropriate’ for class treatment. Ibid. But the text of the Rule does not categorically exclude mass tort cases from class certification * * *. The Committee’s warning, however, continues to call for caution when individual stakes are high and disparities among class members great. As the Third Circuit’s opinion makes plain, the certification in this case does not follow the counsel of caution. That certification cannot be upheld, for it rests on a conception of Rule 23(b)(3)’s predominance requirement irreconcilable with the Rule’s design.” Amchem Products, Inc. v. Windsor (1997), 521 U.S. 591, 625, 117 S.Ct. 2231, 138 L.Ed.2d 689.

{¶ 27} In Amchem, plaintiffs sought certification for a class of thousands seeking recovery for asbestos-related claims. The Supreme Court cited the following as impediments to the Amchem class’s cohesiveness: the large number of individuals, their varying medical expenses, disparate claims of those currently injured individuals versus those who had not yet suffered injury, the plaintiffs’ smoking histories, and family situations. Id. at 623-625, 117 S.Ct. 2231, 138 L.Ed.2d 689.

{¶ 28} Similarly, in Barnes, the court held that cigarette smokers seeking to establish a class action against tobacco companies failed the cohesiveness requirement because “addiction, causation, the defenses of comparative and contributory negligence, the need for medical monitoring and the statute of limitations present too many individual issues to permit certification. As in Amchem, plaintiffs were ‘exposed to different * * * products, for different amounts of time, in different ways, and over different periods.’ * * * These disparate issues make class treatment inappropriate.” Barnes, 161 F.3d at 143, quoting Amchem, 521 U.S. at 624, 117 S.Ct. 2231, 138 L.Ed.2d 689.

{¶ 29} The trial court in this case found sufficient “disparate factual circumstances here, precluding a Rule 23(B)(2) class action.” Although the court did not specifically address those disparate circumstances in the same breath as examining Civ.R. 23(B)(2), the court did go into much detail in its Civ.R. 23(B)(3) predominance analysis, citing multiple individual questions of fact requiring examination for different plaintiffs within the proposed class. Individual questions identified by the trial court include whether Brush Wellman owed a duty, whether there was a breach of that duty, whether the statute-of-limitations defense applies, and questions of contributory negligence. The members of the proposed class span 46 years, multiple contractors, and multiple locations within the plant, and are estimated by the parties to number between 4,000 and 7,000.

{¶ 30} “[Ajbuse of discretion” connotes more than a mere error of law or judgment, instead requiring a finding that the trial court’s decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 450 N.E.2d 1140. Given the depth of the trial court’s predominance analysis and its reasoned conclusion that individual questions outweigh questions common to the class, we cannot hold that the trial court abused its discretion.

{¶ 31} Rather than addressing the proposed class’s cohesiveness, the appellate court summarily determined that the class could be certified under Civ.R. 23(B)(2). Because we have today determined that the trial court did not abuse its discretion in determining that the proposed class in this suit fails the cohesiveness requirement, we reverse the appellate court judgment and reinstate the trial court’s order denying class certification.

Judgment reversed.

Moyer, C.J., F.E. -Sweeney, Lundberg Stratton and O’Donnell, JJ., concur. Resnick, J., dissents with opinion. Pfeifer,- J., dissents.

1 . Civ.R. 23(A) specifies four prerequisites to class actions: “(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.” Two other requirements are implicit: The class must be identifiable and the representatives must be members of the class. Warner v. Waste Mgt., Inc. (1988), 36 Ohio St.3d 91, 96, 521 N.E.2d 1091.

2 . Section 2(B)(2)(e), Article IV, Ohio Constitution.

3 . It is puzzling how there could be an abuse of discretion by a trial court when the judge, in holding against plaintiffs, relies specifically upon the plaintiffs’ stance on the nature of their claim. As we have stated above, however, the appellate court did not properly engage in an abuse-of-discretion analysis.

4 . Fed.R.Civ.P. 23(a), (b), and (c) are identical to their counterparts in the Ohio rule. As we have previously recognized, “federal authority is an appropriate aid to interpretation of the Ohio rule.” Marks v. C.P. Chem. Co., 31 Ohio St.3d at 201, 31 OBR 398, 509 N.E.2d 1249.