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Lockheed v. Superior Court of San Bernardino County3/3/2003
e 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.
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.
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.
" 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 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 conclu
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