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Lockheed v. Superior Court of San Bernardino County3/3/2003
lly, 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 in determining whether a class action is proper" and " 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 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 amo
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