This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Lani Meyer, by and through her Next Friend, Rebecca Coplin, Plaintiff/Appellant, v. Fluor Corporation, et al., Defendants/Respondents Case Number: ED86616 Handdown Date: 04/18/2006 Appeal From: Circuit Court of the City of St. Louis, Hon. Michael David Counsel for Appellant: Kevin S. Hannon, Robert F. Ritter, Edward D. Robertson, Jr., Counsel for Respondent: Andrew Rothschild Opinion Summary: Lani Meyer, by and through her next friend, Rebecca Coplin, appeals from the trial court's order denying class certification for a purported class of children for a claim for medical monitoring based on exposure to lead and other chemicals due to the operations of several companies running the Doe Run lead smelter in the area of Herculaneum, Missouri, over a period of years. AFFIRMED. Division One Holds: The trial court did not abuse its discretion or misapply the law in denying class certification on the basis that individual issues would predominate over common or class issues. Citation: Opinion Author: Clifford H. Ahrens, Judge Opinion Vote: AFFIRMED. Hoff, P.J. and Cohen, J., concurs. Opinion: Lani Meyer, by and through her next friend, Rebecca Coplin ("plaintiff"), appeals from the order of the trial court denying class certification for a purported class of children for a claim for medical monitoring based on exposure to lead
and other chemicals due to the operations of several companies running the Doe Run lead smelter in the area of Herculaneum, Missouri, over a period of years.(FN1) Finding no error, we affirm. Defendants are associated with the operations of the Doe Run lead smelter in Herculaneum. The operation of the lead smelter allegedly has contributed to higher levels of lead and other chemical by-products of smelting than would normally be found in Herculaneum and its environs. The ingestion of lead can cause medical problems, especially in young children. Currently free blood testing is offered to anyone in the Herculaneum area, and this is an accepted method of medical screening for lead levels. Plaintiff filed a petition, subsequently amended twice, asserting that she is a member of a class, consisting of children who have been exposed to toxins produced by the smelter over a period of time, in some cases in utero, who potentially might suffer injury from the by-products of the smelter. Plaintiff, as the purported class representative, sought monetary damages to establish and operate a medical monitoring program for the children of the class, but not equitable relief to establish such a monitoring program. Plaintiff also contends that she has suffered actual injury from the by- products of the smelter. Plaintiff filed a motion for class certification on August 27, 2004, seeking certification under Rule 52.08(b)(3). The trial court held an evidentiary hearing on this motion on November 15 and 16, 2004, at which plaintiff and defendants presented evidence. The trial court issued an order denying class certification on June 30, 2005. It found that the numerosity requirement of Rule 52.08(a)(1), namely that joinder is impracticable, was met by the action filed by plaintiff. The trial court did not make specific findings regarding the "commonality" and "typicality" requirements of Rule 52.08(a), though it did discuss them in general. Rather, it noted that even if it found that plaintiffs met the commonality and typicality requirements, it would still have to determine, pursuant to Rule 52.08(b), whether a class action is the appropriate method to resolve the claims in the case. The trial court observed that Rule 52.08(b)(3) requires that the common questions of a would-be class action must predominate over any individualized issues, and noted that this is a more stringent test than the "commonality" requirement of Rule 52.08(a)(2), citing Amchem Products, Inc. v. Windsor, 521 U.S. 591, 609, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). The trial court found that [I]ndividual issues will necessarily predominate over common issues in this case. These issues include the age at which exposure occurred, the nature of the exposure, the time period over which the exposure occurred, the blood lead level, the existence of other sources such as lead paint for any presence of lead, whether the individuals are presently suffering from any lead related injuries, whether the individuals are still being exposed or whether such exposure terminated, if the exposure to lead in Herculaneum has terminated how long ago it terminated, and whether there is any need for a particular individual to be monitored. The trial court stated its belief that Rule 52.08(b)(3) was not satisfied because there is a need for individual proof
rather than common proof, citing In re "Agent Orange" Product Liability Litigation, 818 F.2d 145, 165 (2nd Cir. 1987), and Owner-Operator Indep. Drivers Ass'n v. New Prime, 213 F.R.D. 537, 547 (W.D. Mo. 2002). The trial court also stated its belief that this case could not be efficiently addressed on a class-wide basis due to the "predominance of individualized issues[.]" It ordered that plaintiff's motion for class certification be denied. Plaintiff filed a petition for permission to appeal on July 20, 2005. This Court granted plaintiff permission to appeal on September 7, 2005, and accordingly, plaintiff now appeals from the trial court's order denying her motion for class certification. In her sole point relied on, plaintiff contends that the trial court erred in denying class certification because it required present physical injury as an element of medical monitoring in that Missouri law "does not now and ought not to require present physical injury as an element of a medical monitoring cause of action." The determination of class certification under Rule 52.08 is within the sound discretion of the trial court. Union Planters Bank, N.A. v. Kendrick, 142 S.W.3d 729, 735 (Mo. banc 2004); State ex rel. American Family Ins. v. Clark, 106 S.W.3d 483, 486 (Mo. banc 2003). This Court reviews an order denying or granting class certification under Rule 52.08 solely for abuse of discretion. Koger v. Hartford Life Ins. Co., 28 S.W.3d 405, 410 (Mo. App. 2000). Because Rule 52.08 and Fed.R.Civ.P. 23 are identical, this Court may consider federal interpretations of Rule 23 in interpreting Rule 52.08. Union Planters Bank, 142 S.W.3d at 735 n.5; Koehr v. Emmons, 55 S.W.3d 859, 864 n.7 (Mo. App. 2001). Rule 52.08 is a procedural rule rather than a substantive one. Charles v. Spradling, 524 S.W.2d 820, 824 (Mo. banc 1975). The trial court lacks the authority to conduct a preliminary inquiry into the merits of a lawsuit when it is determining whether or not to certify the lawsuit as a class action, for the issue is whether or not the plaintiff has met the requirements for a class action, not if the plaintiff has stated a cause of action or ought to prevail on the merits. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 2152, 40 L.Ed.2d 732 (1974); Reinhold v. Fee Fee Trunk Sewer, Inc., 664 S.W.2d 599, 602 (Mo. App. 1984). Class actions are designed to promote judicial economy by permitting the litigation of common questions of law and fact of numerous individuals in a single proceeding. Union Planters Bank, 142 S.W.3d at 735. Under Rule 52.08(a), a class action, at a bare minimum, requires that: (1) the class be so numerous that joinder of all members is impracticable, (2) questions of law or fact common to the class exist, (3) the claims of the representative parties are typical of the claims of the class, and (4) the representative parties will fairly and adequately protect the interests of the class." Clark, 106 S.W.3d at 486. These prerequisites are mandatory for a class action, and class certification is proper only if each listed element is met. Id.
In addition to the prerequisites of Rule 52.08(a), a class must additionally satisfy one of the three requirements of Rule 52.08(b) in order to maintain a class action. Id. Plaintiff's motion for class certification indicates that she seeks class certification under Rule 52.08(b)(3). A class action may be maintained under that section if [T]he court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action. Rule 52.08(b)(3). The party that seeks class action certification bears the burden of proof. Coleman v. Watt, 40 F.3d 255, 258 (8th Cir. 1994); see also Grosser v. Kandel-Iken Builders, Inc., 647 S.W.2d 911, 917-18 (Mo. App. 1983). Defendants contend that the plaintiff's point relied on is without merit, as the trial court did not indicate in its order of June 30, 2005 that it based its decision to deny plaintiff's motion for class certification on the ground that Missouri law requires a present injury as a precondition for a suit for medical monitoring. The trial court in fact found that individual issues would predominate over common ones, though it did state that one of the individual issues would be "whether the individuals are presently suffering from any lead related injuries[.]" On its face, plaintiff's point relied on seemingly lacks merit, and this appeal could be resolved by denying it on that ground. Plaintiff's basis for its argument seems to be the trial court's reliance on two cases, In re "Agent Orange", 818 F.2d at 165 and Indep. Drivers' Ass'n, 213 F.R.D. at 547, which were not cases involving a class action claim for medical monitoring, but involved actual "damages." Essentially plaintiff develops in her argument the idea that the trial court's determination was based, implicitly because of the citations to those cases, on an incorrect interpretation of Missouri law, hence its determination that individual issues predominate over class issues is incorrect. This Court need not consider arguments that are not raised in the point relied on. Rule 84.04(e); Eltiste v. Ford Motor Company, 167 S.W.3d 742, 750 (Mo. App. 2005). Nevertheless, we will review this issue ex gratia. Plaintiff asserts that Missouri does not require that there be a present injury to have a claim for medical monitoring, citing Elam v. Alcolac, Inc, 765 S.W.2d 42, 208-09 (Mo. App. 1983). Defendants contend that Missouri does require a present injury for a claim for medical monitoring, citing Thomas v. FAG Bearings Corporation, Inc., 846 F.Supp. 1400, 1410 (W.D. Mo. 1994). The trial court in Elam, 765 S.W.2d at 208-09, did not state that present injury was or was
not required for a medical monitoring claim, but merely that medical surveillance was a separate element of damage. The district court's opinion in Thomas is not binding precedent on Missouri state courts. In addition, the district court's finding that a claim for future medical monitoring requires proof of actual present injury as well as an increased risk of future harm rests on two federal court opinions from other jurisdictions. Thomas, 846 F.Sup. at 1410. We need not decide whether Missouri courts require present injury to sustain an action for medical monitoring or if such an action can