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Foust v. Southeastern Pennsylvania6/29/2000
Pennsylvania Department of Public Welfare, 374 A.2d 991 (Pa. Cmwlth. 1977). When a class is narrowly and precisely drawn and there are still so many potential class members that joinder is impracticable or impossible, the class is sufficiently delineated to meet the numerosity requirement. Weismer v. Beech-Nut Nutrition Corp., 615 A.2d 428 (Pa. Super. 1992).
In its opinion, the trial court emphasized that the class in this case is well defined and numerous. By utilizing the class action, the trial court opined, all of these claims could be proven or disproven in a single proceeding and relief to each member properly formulated. We agree.
Because the number of class members could conceivably number in the thousands, there is no doubt that individual suits would drain the trial court's resources. Moreover, it is equally clear that joinder of each of the individual claims would be impracticable. As a result, we conclude that the trial court properly held that the numerosity requirement had been met.
II. Common Question of Law or Fact
In Allegheny County Housing Authority, the Superior Court recognized that "The common question of fact means precisely that the facts must be substantially the same so that proof as to one claimant would be proof as to all. This is what gives the class action its legal viability." Id., at 487 A.2d 997. The existence of individual questions of fact is not necessarily fatal but it is essential that there be a predominance of common issues, shared by all the class members. Weismer. Common questions will generally exist if the class members' legal grievances arise out of the "same practice or course of conduct" on the part of the class opponent. Janicik, 451 A.2d at 457 (citing Ablin, Inc. v. Bell Telephone Co. of Pennsylvania, 435 A.2d 208, 213 (Pa. Super. 1981)).
In the case sub judice, Defendants assert that individual issues predominate this litigation. Specifically, Defendants argue that the elements of a cause of action for medical monitoring "implicate inherently idiosyncratic questions of exposure, increased risk, proximate causation and the efficacy and necessity of monitoring." (Defendants' Brief at page 34).
We will discuss each of Defendants' arguments in turn.
a. Proof of Exposure
Defendants posit that in proving exposure greater than normal background levels, the following individual issues will need to be addressed: (1) the nature of each plaintiff's contact with the Railroad Yard; (2) the frequency of the contact; (3) the duration of employment at the Railroad Yard or residence in the surrounding neighborhood; (4) the extent of each individual's exposure to sources other that the Railroad Yard; and (5) the measurement of the PCB content of each individual's blood or adipose tissue. (See Defendants' Brief at pages 39-40).
In response, Plaintiffs assert that common questions do predominate. To satisfy the first requirement of Redland, Plaintiffs need only show exposure greater than normal background levels. Plaintiffs' expert, Dr. Michael H. Lewitt, testified that such a determination can be made on a class-wide basis, independent of individual characteristics. (Lewitt Deposition at pages 151-154). As Dr. Lewitt emphasized, differences in the amount of exposure will effect the amount of monitoring and testing necessary and not whether monitoring is necessary in the first place. (Id. at 199-200; 285-86).
Furthermore, Plaintiffs note, all that must be proven is a minimum concentration of PCBs in the environment that significantly increase the risk of contracting a serious latent disease. This concentration will establish the minimum exposure or "fl
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