Myers v. B P America Inc et al

Filing 201

REPORT AND RECOMMENDATIONS re 167 MOTION for Summary Judgment filed by Crown Oilfield Services Inc, El Mar Consulting L L C, Cenergy Corp, Power Marine L L C, Production Management Industries L L C, B P America Inc, Brand Scaffold Builders L L C. I T IS RECOMMENDED that the defendants Motion for Partial Summary Judgment [rec. doc. 167] be granted, and accordingly, that the plaintiffs request to certify this matter as a class action be denied. Objections to R&R due by 7/27/2009. Signed by Magistrate Judge C Michael Hill on 7/9/09. (crt,Roaix, G)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF LOUISIANA G E O R G E LARRY MYERS V S. BP AMERICA, INC., ET AL. * C I V I L ACTION NO. 08-0168 * J U D G E DOHERTY * M A G I S T R A T E JUDGE HILL

R E P O R T AND RECOMMENDATION Pending before the undersigned for Report and Recommendation is the defendants' M o t io n for Partial Summary Judgement. [rec. doc. 167]. By this Motion, the defendants, C ro w n Oilfield Services, Inc., BP America, Inc., Production Management Industries, LLC, B ra n d Scaffold Builders, LLC, El Mar Consulting, LLC, Cenergy Corporation, and Power M arine , LLC (collectively "the defendants"), seek summary judgment on the plaintiff's req u est to certify this matter as a class action. The plaintiff, George Larry Myers ("Myers"), h a s filed opposition. [rec. doc. 170, 192]. Oral argument on the Motion was held on June 1 1 , 2009. In response to concerns raised by the undersigned during oral argument, the p a r tie s have filed authorities in support of, and in opposition to, the disposition of the class c e rtif ic a tio n issue by summary judgment without an evidentiary hearing. [rec. docs. 178 and 1 7 9 ]. F o r the reasons which follow, it is recommended that is the defendants' Motion for P a rtia l Summary Judgement [rec. doc. 167] be granted, and, accordingly, that the p laintiff's request to certify this matter as a class action be denied.

FACTUAL AND PROCEDURAL BACKGROUND P lain tiff , George Larry Myers, filed this purported class action lawsuit in state court1 o n behalf of himself and allegedly similarly situated people claiming personal injury as a re su lt of exposure to airborne radiation dust/t-norms, between March 1, 2007 and April 30, 2 0 0 7 , while engaged in a platform decommissioning project. On February 4, 2008, the d e f e n d a n ts removed the case to this court. The platform was located at South Timbalier Block 160, in the Gulf of Mexico, ap p rox im ately thirty miles off the coast of Louisiana. A time-chartered liftboat, L/B DIXIE P A T R IO T , which was supporting the platform decommissioning, was jacked up adjacent to th e platform. Myers and other workers engaged in the decommissioning resided aboard L/B D IX IE PATRIOT while the work was being performed to the platform to take it out of s e rv ic e . There were also two supply boats assisting in the operation. In his Third Amended Complaint, Myers claims that he became seriously ill, and a f f l ic te d with permanent neurological, psychological, and pathological conditions, as a re su lt of the movement, improper storage, cutting and removal of radioactive liquids, flow lin e s and other contaminated equipment on, and from, the deck of the L/B DIXIE PATRIOT a n d adjacent work areas. [doc. 54, ¶ 6]. He also claims that he and other proposed class m e m b e r s suffered significant exposure to hazardous substances and, therefore, have a s ig n if ic a n tly increased risk of contracting a serious latent disease requiring future medical m o n ito rin g . [Id.].
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The 16 th Judicial District Court.

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T h e proposed class is defined as: [ A ]ll persons working on the L/B DIXIE PATRIOT or supply boats working in conjunction with the L/B DIXIE PATRIOT to dismantle the BP Platform d u rin g the period of approximately March 1, 2007 to at least until April 30, 2 0 0 7 and who were exposed to airborne radiation dust/t-norms. T h e proposed Class is further subdivided as follows: a . Jones Act Seamen working on the L/B DIXIE PATRIOT or the supply b o a ts working in conjunction with the L/B DIXIE PATRIOT on the project to d is m a n tle the BP Platform; [and] b . Maritime workers working on the project to dismantle the BP Platform. [Id. at ¶ 3]. W ith respect to himself and other members of the seaman class, Myers asserts causes o f action for negligence under the Jones Act, general maritime law, the applicable Louisiana law , the unseaworthiness of L/B DIXIE/PATRIOT and for maintenance and cure and, with re s p e c t to the maritime worker class, for negligence under 33 U.S.C. § 905(b). [Id. at ¶ 81 2 ]. D a m a g e s sought include those for past, present and future physical and mental pain a n d suffering, past present and future medical expenses including rehabilitation costs, d o c to r, hospital and pharmaceutical bills, costs for laboratory and physical examinations and diagnostic studies, past present and future loss of wages and fringe benefits, permanent d i sa b i lity and the cost of "medical monitoring to determine the progress of the disease(s) c a u se d by the exposure to radioactive material." [Id. at ¶ 13]. Myers claims that he became aware that he was working with radiation in March. He w a s asked to perform a Geiger counter test on a pipe which had been removed from the 3

p la tf o rm . Myers claims to have gotten a reading of 150-200 rads on the Geiger counter, and f u rth e r asserts that with levels over 50 rads, workers were supposed to "suit up" with p ro te c tiv e gear. Myers asserts that the work was not stopped and no personal protective e q u ip m e n t was provided to the workers. [Myers depo. at pg. 25-33]. Myers also recalled a te le p h o n e conference call in which he participated, where reference to radiation testing on b u lk samples was discussed wherein it was stated that the results "were high, over 1000." [ Id . at 52-57]. Myers then did some research on radiation exposure. [Id. at 191-192]. Myers claims that he had to leave the BP decommissioning project four days before th e end of his hitch because he was coughing up blood, had fever, aches, pains and d iz z in e s s . [Id. at 308-310]. While he first thought his problems might have been from TB e x p o su re , Myers later concluded that radiation exposure was the more likely cause of his s ym p to m s . [Id. at 292-293; 318-321]. At least one physician, Dr. Williams, has opined that M ye rs has been exposed to radioactive materials in concentrations sufficiently high to be a ca u se of adverse health effects. [Defendants' Exhibit G]. E x t e n s iv e discovery has revealed that Myers, the sole named class representative, is a s ix t y year old male, who has a twenty year history of pipe smoking (three to four times a d a y) and has preexisting medical problems including obstructive pulmonary disease (C O P D ), enlarged prostate, past complaints of bloody urine and hypoglycemia. [Myers d e p o . pg. 141, 131-132, 303-305; McWilliams depo. pg. 24, 30-31, 68; Kirby depo pgs. 131 7 ]. Myers has also suffered for years from recurring bronchitis, and has been previously

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tre a ted for exposure to chlorine gas. [Kirby depo. pg. 17-18]. He was also previously d ia g n o se d with TB, has had high blood pressure, post-traumatic stress disorder as a result of h is experience in Vietnam, and is believed to have been exposed to Agent Orange. [Myers d e p o pg. 327-328, 103-104, 354-359]. Myers has suffered a heart attack, has received four s tin ts , and open heart surgery. [Id. at 105, 107-108, 117, 111-112, 361]. Moreover, Myers p re v io u sly worked for an asbestos removal company for approximately eight years, directly s u p e rv is in g construction crews during removal activities. [Id. at 126-129]. The Department of Veterans Affairs considers Myers totally disabled and has been p ro v id in g Myers disability benefits since 1995. [Id. at 111-112, 360-361]. He has also been d e c la re d totally disabled by the Social Security Administration, and accordingly has re c e iv e d Social Security disability benefits since 1999. [Id. at 361-363]. Thus, the d e f e n d a n ts argue strenuously that Myers' has significant medical causation problems in this c a se as a result of his unique health and employment history, and that his symptoms and c o m p lain ts may not, in fact, be the result of his radiation exposure, but rather, are the result o f his pre-existing conditions.2 L A W AND ANALYSIS C la ss Certification May be Determined Without an Evidentiary Hearing A district court has broad discretion in deciding whether to certify a class. Castano v.

These arguments were presented in connection with the defendants' assertion that Myers' claim is not t y p i c a l of the class. [rec. doc. 167-2, pgs. 23-26]. See also Olson depo. pgs. 78-79 and 99-101; McWilliams depo p g . 110; Affirmation of Sullivan, defendants' Exhibit K, ¶ C(1)(d)and (e).

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A m . Tobacco Co., 84 F.3d 734, 740 (5th Cir. 1996) citing Gulf Oil Co. v. Bernard, 452 U.S. 8 9 , 100, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981). Rule 23 does not itself require an e v id e n tia ry hearing on the question of class certification. Merrill v. Southern Methodist U n ive rs ity, 806 F.2d 600, 608 (5th Cir. 1986) citing Franks v. Kroger Co., 649 F.2d 1216, 1 2 2 3 (6th Cir. 1981) and Marcera v. Chinlund, 565 F.2d 253, 255 (2d Cir. 1977); Bradford v . Sears, Roebuck & Co., 673 F.2d 792, 795 (5th Cir. 1982). Accordingly, it has been re c o g n ize d that, "[i]n making the certification decision, courts generally agree that there is n o absolute requirement that a preliminary hearing be held." 7AA Wright & Miller, Cooper & Freer, Federal Practice and Procedure, § 1785 (3rd Ed. 2008) (citing cases). The Supreme Court has recognized that although the issue of class certification is u s u a lly enmeshed in law and fact, the issues are sometimes plain enough from the pleadings to determine the issue. General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160, 1 0 2 S.Ct. 2364, 2372 (1982). Accordingly, "[i]n determining whether a suit may be m aintaina b le as a class action, a district court is not obliged to conduct an evidentiary h e a rin g ." Bradford, 673 F.2d at 795. W h ile, the Fifth Circuit has stated on numerous occasions that the district court s h o u ld ordinarily conduct an evidentiary hearing on this question,3 in cases "where `clear g ro u n d s exist[ ] for denial of class certification' a district court may escape this obligation." M e r r ill, 806 F.2d at 608 citing Morrison v. Booth, 730 F.2d 642, 644 (11th Cir.1984)
Merrill, 806 F.2d at 608 citing King v. Gulf Oil Co., 581 F.2d 1184, 1186 (5th Cir.1981) and Shepard v. B e a ir d - P o u l a n , Inc., 617 F.2d 87, 89 (5th Cir.1980).
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(in te rp re tin g Fifth Circuit precedent) and Marcera v. Chinlund, 565 F.2d 253, 255 (2nd Cir. 1 9 7 7 ) (denial of class certification improper where genuine fact questions remained as to w h e th e r the requirements of Rule 23 were met). See also, Lewis v. Heckler, 752 F.2d 555, 5 5 7 (11th Cir. 1985) (finding the lack of an evidentiary hearing inconsequential since it was c lea r that the requirements of Rule 23 were not met); Hall v. Burger King Corp., 1992 WL 3 7 2 3 5 4 , *3 (S.D.Fla. 1992) (denying certification on the motion submitted because it was c lea r that class certification would run counter to Rule 23); Kemp v. Metabolife In te rn a tio n a l, Inc., 2002 WL 113894, *3 (E.D.La. 2002) (Berrigan, Chief J.) (denying class c e rtif ic a tio n on defense Motion for Judgment on the Pleadings because the certification iss u e s were "clear enough such that an evidentiary hearing [was] unnecessary."); Salvant v. M u r p h y Oil, USA, Inc., 2007 WL 2344912, *1 (E.D.La. 2002) (Fallon, J.) (same); Bradford v . Edelstein, 467 F.Supp. 1361, 1378 (D.C. Tex. 1979) (the evidence on file including that c o n ta in e d in motions for summary judgement was sufficient for the court to conclude w ith o u t an evidentiary hearing that all of the prerequisites to class certification were met); Johnson v. Long, 67 F.R.D. 416, 417 (M.D.Ala. 1979) (the record before the court including the pleadings and evidence submitted in connection with defense motions for summary ju d g e m e n t was a sufficient basis for denying certification without an evidentiary hearing). Accordingly, if there are no genuine disputed issues of material fact, on whether or n o t the requirements of Rule 23 are met, a motion for class certification under Rule 23 may b e decided on motion for summary judgment.

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S ta n d a r d on Motion for Summary Judgment F e d .R .C iv .P ro c . Rule 56(c) provides that summary judgment "should be rendered if th e pleadings, the discovery and disclosure materials on file, and any affidavits, show that th e re is no genuine issue as to any material fact and that the movant is entitled to judgment a s a matter of law." F e d .R .C iv .P r o c . Rule 56(e) provides, in pertinent part, as follows: W h e n a motion for summary judgment is properly made and supported, an opposing p a rty may not rely merely on allegations or denials in its own pleading; rather, its re sp o n se must--by affidavits or as otherwise provided in this rule--set out specific f a cts showing a genuine issue for trial. If the opposing party does not so respond, s u m m a ry judgment should, if appropriate, be entered against that party. T h e defendants' Motion for Summary Judgment is properly made and supported. Thus, Myers may not rest upon his allegations in his pleadings, but rather must go beyond th e pleadings and designate specific facts demonstrating that there is a genuine issue for tria l. Celotex v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54 (1986). However, metaphysical doubt as to the material facts, conclusory allegations, u n su b stan tiated assertions and those supported by only a scintilla of evidence are in su f f icie n t. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). Additionally, su m m a ry judgment is mandated against a party who fails to make a showing sufficient to e sta b lis h an essential element of that party's case, and on which that party will bear the b u rd e n of proof at trial. Celotex, 106 S.Ct. at 2552. M ye r s has submitted evidence in opposition to the instant Motion. However, Myers' e v id e n c e fails to demonstrate that there is a genuine issue of material fact necessitating a 8

c las s certification hearing. Specifically, Myers has failed to make a sufficient showing to e sta b lis h the "predominance" requirement essential to class certification, an issue on which M ye r s bears the burden of proof. Accordingly, summary judgment with respect to Myers' re q u e st for class certification is appropriate in this case. R u le 23 Requirements "The purpose of class actions is to conserve `the resources of both the courts and the p a rtie s by permitting an issue potentially affecting every [class member] to be litigated in an e c o n o m ic a l fashion.'" General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 155 (1 9 8 2 ); Jenkins v. Raymark Ind., 782 F.2d 468, 471 (5th Cir. 1986). Plaintiffs have the b u rd e n of establishing that all requirements of Rule 23 have been satisfied. Castano v. A m e r ic a n Tobacco Co., 84 F.3d 734, 740 (5th Cir. 1996); Unger v. Amedisys Inc., 401 F.3d 3 1 6 , 320 (5th Cir. 2005). To satisfy this burden, the plaintiff must establish all of the following requirements of R u le 23(a): (1) a class "so numerous that joinder of all members is impracticable" ( " n u m e r o s ity" ) ; (2) the existence of "questions of law or fact common to the class" ( " c o m m o n a lity" ) ; (3) class representatives with claims or defenses "typical . . . of the class" (" typ ic a lity" ); and (4) class representatives that "will fairly and adequately protect the in ter e sts of the class" ("adequacy of representation"). Fed.R.Civ.P. 23(a); Fleming v. T r a v e n o l Lab. Inc., 707 F.2d 829, 832 (5th Cir. 1983); Amchem Products, Inc. v. Windsor, 5 2 1 U.S. 591, 606-608 and fn. 8, 117 S.Ct. 2231 (1997).

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If any requirement is not met, the court must refuse to certify the class. Castano, 84 F .3 d at 746; Huff v. N.D. Cass Co.,485 F.2d 710, 712 (5th Cir. 1973) (en banc). In addition, th e plaintiff must establish that the action fits within one of the categories described in Rule 2 3 (b ). Redditt v. Mississippi Extended Care Centers, Inc., 718 F.2d 1381, 1387 (5th Cir. 1 9 8 3 ) . Plaintiffs, like Myers, who seek class certification under Rule 23(b)(3) must d e m o n s tra te that "questions of law or fact common to class members predominate over any q u e s tio n s affecting only individual [class] members" ("predominance") and that "a class a c tio n is superior to other available methods for fairly and efficiently adjudicating the c o n tro v e rsy" ("superiority"). Fed.R.Civ.P. 23(b)(3); Steering Committee v. Exxon Mobil C o r p ., 461 F.3d 598, 601 (5th Cir. 2006) citing Bell Atlantic Corp. v. AT&T Corp., 339 F.3d 2 9 4 , 301 (5 th Cir. 2003). In determining the propriety of certifying a class action, the question is not whether p lain tiff s have stated a cause of action, or will prevail on the merits, but solely whether the re q u ire m e n ts of Rule 23 have been met. Floyd v. Bowen, 833 F.2d 529, 534 (5th Cir. 1987). T h e district court has wide discretion in deciding whether to certify a proposed class. Shipes v . Trinity Industries, 987 F.2d 311, 316 (5th Cir. 1993). Rule 23(b)(3) Predominance Requirement I n this case, Rule 23(b)(3)'s requirement that common questions of law or fact must " p re d o m in a te over any questions affecting only individual [class] members," is fatal to the P la in tif f 's proposed class and renders an analysis of the Rule 23(a) prerequisites

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u n n e c e s s a ry. See Steering Committee, 461 F.3d at 601; Unger, 401 F.3d at 320. To predominate, common issues must form a significant part of the individual cases. See Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 626 (5th Cir. 1999). The p re d o m in a n c e requirement of Rule 23(b)(3) is "far more demanding" than the commonality re q u ire m e n t of Rule 23(a), because it "tests whether proposed classes are sufficiently c o h e siv e to warrant adjudication by representation." Unger, 401 F.3d at 320. C o u rts have repeatedly held that claims for personal and emotional injuries arising f r o m exposure to toxic chemicals are inappropriate for class treatment because in d iv id u a liz e d factual issues concerning specific causation and damages predominate over a n y common issues. Steering Committee v. Exxon Mobil Corp., 461 F.3d 598, 601-04 (5th C ir. 2006); Salvant v. Murphy Oil, USA, Inc., 2007 WL 2344912, *1 (E.D. La. 2002) (F allo n , J.) citing Steering Committee, 461 F.3d at 601-04 and Hurd v. Monsanto Co., 164 F .R .D . 234, 239-40 (S.D. Ind. 1995) (collecting authorities). L ik e w ise , claims for injuries resulting from exposure to toxic products have generally b e e n found not to meet the predominance requirement because in these kinds of actions, c a u s a tio n , damages and defenses must be determined individually. See Amchem Products, In c . v. Windsor, 521 U.S. 591, 117 S.Ct. 2231 (1997); Kemp v. Metabolife International, In c ., 2002 WL 113894, *4 (E.D. La. 2002) (Berrigan, Chief J.) citing In re Fibreboard C o r p ., 893 F.2d 706 (5th Cir. 1990) and Hon. Martin L.C. Feldman, Class Actions in the G u l f South Symposium: Predominance and Products Liability Class Actions: An Idea Whose

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T im e Has Passed?, 74 Tul. L.Rev. 1621 (2000). These cases, and, in particular, the Fifth C irc u it's decision in Exxon Mobil, which involved a toxic smoke plume, controls the instant d i sp u te and leads to the inescapable conclusion that this case cannot proceed as a class a c tio n . In Exxon Mobil, the Fifth Circuit said that class certification is inappropriate where e a c h of the plaintiff's claims "will be highly individualized with respect to proximate c a u sa tio n , including individual issues of exposure, susceptibility to illness, and types of p h ys ic a l injuries." Exxon Mobil, 461 F.3d at 602. Moreover, the court noted there that "one s e t of operative facts would not establish liability and the end result would be a series of in d iv id u a l mini-trials which the predominance requirement is intended to prevent." Id. Despite plaintiff's arguments to the contrary, the evidence before this court e sta b lis h e s that the claim of each individual class member that exposure to radiation e m a n a tin g from NORM impacted materials proximately caused their physical and emotional in ju rie s are no different from those of the claimants in Exxon Mobil; they are highly in d iv id u a lize d and inappropriate for class wide adjudication. The experts have uniformly testified that any claims asserted by potential class members would necessarily require in d iv id u a liz e d proof of specific causation including the location of each worker, the d u ra tio n of exposure, the proximity to the NORM impacted material, and the medical c a u s a tio n , including pre-existing medical history, age, breathing rate, metabolic processes, u p ta k e , absorption and elimination rates, susceptibility to illness and the effects of radiation,

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a s well as analysis of individualized test results and data obtained from urinalysis or whole b o d y counts, which, according to Dr. Sullivan, may be performed on each class member. [ P la to , depo pg. 16-22; Williams, depo. pg. 35-42 and 47-58; McWilliams, depo. pg. 78; F r a z ie r, Defendants' Exhibit J, ¶ C(1)(c); Sullivan, Defendants' Exhibit K, ¶ C(1)(a) and (b) a n d depo. pg. 109-111; Thigpen, Defendants' Exhibit L, ¶ C(1)]. Indeed, this finding is su p p o rte d and illustrated by the myriad of causal questions raised by the defendants with re s p e c t to Myers' claims, given his complex pre-existing medical history. The Fifth Circuit's result in Exxon Mobil is consistent with the Supreme Court's d e c is io n in Amchem Products Inc. v. Windsor. In Amchem, the plaintiffs sought damages f o r present and future potential adverse effects from exposure to the defendants' asbestos p ro d u c ts . The district court conditionally certified the class for settlement purposes, based o n the commonality that all class members had been exposed to asbestos products supplied b y the defendants. Id. at 623-624. The Third Circuit reversed, finding the predominance re q u ire m e n t had not been satisfied. The court said: C la ss members were exposed to different asbestos-containing products, for d if f e re n t amounts of time, in different ways, and over different periods. Some c la ss members suffer no physical injury or have only asymptomatic pleural c h a n g es , while others suffer from lung cancer, disabling asbestosis, or from m e so th e lio m a . . . . Each has a different history of cigarette smoking, a factor th a t complicates the causation inquiry. T h e [exposure-only] plaintiffs especially share little in common, either with e a ch other or with the presently injured class members. It is unclear whether th e y will contract asbestos-related disease and, if so, what disease each will su f f e r. They will also incur different medical expenses because their m o n ito rin g and treatment will depend on singular circumstances and in d iv i d u a l medical histories. Id . at 625. 13

T h e Supreme Court agreed with the Third Circuit, finding that these uncommon q u e stio n s predominated over "any overarching dispute about the health consequences of a sb e sto s exposure." Id. at 624. Thus, given the greater number of questions peculiar to the c la ss members in each category (and to individuals within each category) and the s ig n if ic a n c e of those uncommon questions, the predominance standard had not been met. Id. This was so despite the shared experience of asbestos exposure among the plaintiffs in th e proposed class. In sum, the Court found that while the shared exposure may satisfy Rule 2 3 (a )'s commonality requirement, more was required to satisfy the predominance re q u ire m e n t of Rule 23(b)(3). The same is true in the present case. The predominance requirement is not satisfied in th is case based on the proposed class members' shared common experience of radiation e x p o su re . To the contrary, the myriad of uncommon disparate questions regarding causation in this case preclude such a finding. Plaintiff attempts to satisfy the predominance requirement by arguing that there is a c o m m o n liability issue, that is, the fault of the defendants. Plaintiff argues that the d e f en d a n ts ' alleged negligence in failing to test for, or monitor, radiation levels at the w o rk site , and failing to warn or protect the workers from exposure to allegedly high levels o f radiation predominate throughout the proposed class. However, the Fifth Circuit refused to accept substantially the same argument in the E x x o n Mobil case. The Fifth Circuit rejected that argument because it "does no more than p ro v e that some common issues exist across the class." Thus, in noting that, "[t]he

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p re d o m in a n c e inquiry . . . is more rigorous than the commonality requirement", the Fifth C irc u it found that because the cause of the fire and related liability issues were relatively s tra ig h tf o rw a rd , compared to the vastly more complex individual issues of medical c a u sa tio n and damages, it was not an abuse of discretion for the district court to conclude th a t the plaintiffs failed to demonstrate that the class issue of negligence predominated. E x x o n Mobil, 461 F.3d at 603. That is the case here.4 A lth o u g h the plaintiff claims that the defendants' liability is based on an event re stric te d to a particular limited time frame, that is, exposure to radiation during the period o f approximately March 1, 2007 through April 30, 2007, the causal mechanism for each of th e class member plaintiff's injuries, alleged exposure to radiation, is not straightforward. While it is true that the cause of the exposure itself is an issue common to the class, each in d iv id u a l plaintiff must meet the burden of medical causation, which, in turn, will depend o n any number of factors enumerated by the experts who would testify at trial, including the

The undersigned has considered Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620 (5 th Cir. 1999) w h i c h has been cited by Myers in support of his position. Mullen involved claims of alleged seamen for respiratory i l ln e s s (asthma and bronchitis), which, according to the plaintiff's expert, were caused by the floating Casino's d e fe c tiv e or improperly maintained air conditioning and ventilation system, which allowed extremely smokey c o n d itio n s to exist in the Casino. In Mullen, the class was certified under a specialized plan whereby the liability is su e s (seaman status, status of the Casino as a "vessel" within the meaning of the Jones Act, unseaworthiness and n e g l ig e n c e ) would be tried in an initial class trial, and then, only if the class prevailed on these issues, would the c o u r t permit a "second phase" of mini-trials in waves of five class members at a time to consider each plaintiff's i n d i v i d u a l issues of causation, damages and comparative negligence. Id. at 623. The court found no abuse of d is c r e t io n with the court's plan as the liability issues were "not only significant, but also pivotal" because if the C a s in o prevailed, they would also prevail in the case. On the other hand, given that the plaintiff's expert had already a t tr ib u te d the plaintiffs' maladies to the smokey conditions existing in the Casino, the issues of causation and d a m a g e s paled in comparison. Id. at 626. The opposite case is presented herein. The evidence regarding negligence a n d unseaworthiness will be minimal in comparison to those issues regarding each plaintiff's medical causation and d a m a g e s as those issues will be hotly contested at trial and will require individualized expert testimony as to each in d iv id u a l class member.

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le v e l of each plaintiff's individual exposure (which will, in turn, depend on the length of tim e each spent at the job site and the location of each plaintiff on the site relative to the N O R M impacted material) each plaintiff's pre-existing medical history, susceptibility to illn e ss , type of symptom or illness each plaintiff may experience (if any), and type of m e d ic a l treatment rendered, or which may be rendered, in the future. In response, Myers argues that each class member plaintiff's damages may be c a lc u la te d pursuant to a formula. That argument is contrary to the expert evidence s u b m itte d . Moreover, a substantially similar argument was rejected by the Exxon Mobil c o u rt. There the court found that the members' damage claims would not be subject to any s o rt of formalaic calculation because "each individual plaintiff suffered different alleged p e rio d s and magnitudes of exposure, and suffered different alleged symptoms, as a result." Id. at 602. Moreover, the court found that the very nature of claims for compensation "for e m o tio n a l and other intangible injuries, necessarily implicates the subjective differences of e a ch plaintiff's circumstances", which cannot be calculated by objective standards and is not th e re f o re susceptible to a class wide remedy. Id. P lain tiff argues that the Supreme Court's decision in Story Parchment Co. v. P a te rs o n Parchment Paper Company, 282 U.S. 555, 51 S.Ct. 248 (1931) requires a different re su lt. However, plaintiff's reliance on Story Parchment is misplaced. Story Parchment w a s a Sherman Anti-Trust Act claim asserted by a sole plaintiff, not a class action. The p lain tiff in that case presented sufficient evidence to prove that the actions of the defendants

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c a u se d him economic damage (lost profits and dimunition of business value); however, he w a s unable to prove the precise amount of his economic damages with exactness or p re c is io n . The case presented no question of the causation of plaintiff's claimed damage. T h e case stands for the general rule that "damages resulting necessarily and immediately and d ire c tly from the breach are recoverable", even if the amount of damages cannot be d e ter m in e d with certainty, whereas damages which have not been shown to be "the ceratin re s u lt of the breach" may not. Id. at 562. The difficult questions of causation which are presented in this case preclude a class w id e finding that any particular class member's claimed damage resulted "necessarily and im m e d i a te ly and directly from the [defendants' alleged] breach." This is simply not a case w h ere liability for each plaintiff's claimed damages is certain to result from the exposure c la im e d . Therefore, the Story Parchment rationale is inapplicable. During oral argument, with respect to the common fault issue, plaintiff's counsel b rie f ly suggested taking advantage of Rule 23(c)(4), which allows class certification of so m e issues with individual treatment of others. This suggestion was never fully briefed to th is court, and, accordingly, it does not appear that this suggestion was intended to present a v ia b le option for this court. Nevertheless, it will be addressed briefly. Judge Berrigan of the Eastern District refused to accept a similar argument in Kemp v . Metabolife International, Inc., 2002 WL 113894, *4 (E.D. La. 2002) (Berrigan, Chief J.) r e a so n in g that "the Fifth Circuit explains that, first, `the cause of action, as a whole, must

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sa tisf y Rule 23(b)(3)'s predominance requirement . . . . Once that requirement is met, Rule 2 3 (c )(4 ) is available to sever the common issues for a class trial.'" Id. citing Smith v. T e x a c o , Inc., 263 F.3d 394, 409 (5 th Cir. 2001), opinion withdrawn and dismissed due to s e ttle m e n t, 281 F.3d 477 (5 th Cir. 2002); Castano v. Am. Tobacco Co., 84 F.3d 734, 745 n. 2 1 (5th Cir. 1996). "The predominance requirement cannot be satisfied by seeking to re p e ate d ly split the claims pursuant to Rule 23(c)(4)." Id. "To read the rule . . . as allowing a court to pare issues repeatedly until predominance is achieved, would obliterate Rule 2 3 (b )(3 )'s predominance requirement, resulting in automatic certification in every case in w h ic h any common issue exists, a result the drafters of the rule could not have intended." Id.

The undersigned agrees with Judge Berrigan's reasoning. The common fault issue id e n tif ie d by plaintiff notwithstanding, and for the reasons set forth more fully above, lia b ility as to each proposed plaintiff is, overall, a highly individual issue, as are questions of d a m a g e s and causation. Id., citing Smith v. Brown & Williamson Tobacco Corp., 174 F .R .D . 90, 96 (W.D. Mo. 1997).5 Thus, the undersigned cannot accept the plaintiff's s u g g e s tio n ; individual issues predominate over those common to the proposed class. By Reply, Myers argues that each proposed class member has a "legitimate fear and in c re a se d risk of contracting cancer as a direct result of the alleged exposure to radiation",

Finding that whether cigarettes cause disease or are addicting in general did little to advance the litigation in that case, the Smith court held, "Liability will not turn on whether cigarettes are generally capable of causing d i s e a s e : liability will depend upon whether cigarettes caused a particular plaintiff's disease. The latter inquiry will tu r n in [sic] numerous individual factors, rendering the causation factor inappropriate for common disposition." Id.

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e n titlin g each to damages for "fear and fright" and medical monitoring. This argument, h o w e v e r, merely begs the question. Any purported class member's increased risk of c o n tra c tin g cancer can only be assessed following analysis of the various individual c a u sitiv e factors set forth above. Moreover, each plaintiff's fear can only be determined le g itim a te as a result of their knowledge of the facts and appraisal of what occurred, and f u rth e r depends upon each individual's feelings and response, a highly subjective and in d iv id u a liz e d inquiry. See Hagerty v. L&L Marine Services, Inc., 788 F.2d 315, 317 (5 th C ir. 1986)6 . M o re o v e r, as pointed out by the defendants in their pending Motion for Partial S u m m a ry Judgement, without deciding the issue, it appears that medical monitoring d a m a g e s are not available under Louisiana law absent manifest physical or mental injury or illn e ss ; to the extent that plaintiffs without symptoms or disease seek a lump sum damage a w a rd for medical monitoring, such damages are not recoverable under FELA and by e x te n s io n , under the Jones Act. See Louisiana Acts 1999, No. 989, § 2; Bonnette v. Conoco, 8 3 7 So.2d 1219, 1230 fn. 6 (La. 2003); Metro-North Commuter Railroad Company v. B u c k le y , 521 U.S. 424, 427 and 438-439, 117 S.Ct. 2113 (1997); Green v. McAllister B r o th e rs Towing, Inc., 2005 WL 742624, *22-23 (S.D.N.Y. 2005). Thus, to the extent that the proposed class contains both asymptomatic members and

The undersigned notes that it appears that the analysis of "cancerphobia" in Haggerty with respect to Jones A c t seamen who are disease and symptom free was rejected by the United States Supreme Court in Metro-North C o m m u t e r Railroad Company v. Buckley, 521 U.S. 424, 427 and 438-439, 117 S.Ct. 2113 (1997).

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m e m b e r s like Myers who have exhibited symptoms, medical monitoring damages would not b e a class wide common issue. Finally, even if medical monitoring damages were r e c o v e r a b le class wide, the greater number and significance of uncommon and diverse is s u e s surrounding specific and medical causation discussed above preclude a finding of p r e d o m i n a n c e .7
Although the undersigned has determined that class certification should be denied based on M y e r s ' failure t o satisfy his burden of establishing predominance, without deciding the issue, it appears that class certification is a l s o inappropriate based on Myers' failure to satisfy the typicality, adequacy of representation and numerosity r e q u i r e m e n t s of Rule 23(a), as well as the superiority requirement of Rule 23(b)(3). The same factors which preclude a finding of predominance likewise appear to preclude a finding of t y p i c a l i ty . Rule 23(a)(3) requires that the claims of the class representatives be typical of the claims of the class. In r e Vioxx Products Liability Litigation, 239 F.R.D. 450, 460 (E.D.La. 2006). Typicality does not require that these c l a i m s be identical, but rather that they share the same essential characteristics. Id. Given Myers' extensive, unique a n d complex medical and employment history, it does not appear that Myers' claim would share the same essential c h a ra c te ris tic s of the absent class members claims. To the contrary, in attempting to prove his claim, it does not a p p e a r that Myers would necessarily prove the claims of any, let alone all, of the absent class members. M o r e o v e r , it does not appear that Myers is an adequate class representative. A class representative must " p o s s e s s the same interest and suffer the same injury as the [other] class members." Amchem, 521 U.S. at 625-626. The proposed class in this case does not distinguish between those members who, like Myers, have experienced s ym p to m s and those who have not. However, as recognized in United States Supreme Court in Amchem, the i n t e r e s t s of these subclasses (those members, like Myers, currently exhibiting poor health, and exposure onlym e m b e r s ) are not aligned. Id. at 626. For those experiencing symptoms, like Myers, the critical goal appears to be in obtaining a large present recovery, while the interest of the exposure-only members appears to be in ensuring an a m p l e fund for medical monitoring and payment of future expenses in the event of potential illness. See Id. A d d itio n a l ly , plaintiff has presented no competent summary judgment evidence demonstrating that the n u m b e r of potential claimants is so numerous that joinder is impracticable. To satisfy the numerosity prong, "a p la i n t iff must ordinarily demonstrate some evidence or reasonable estimate of the number of purported class m e m b e r s." Pederson v. Louisiana State University, 213 F.3d 858, 868 (5 th Cir. 2000) quoting Zeidman v. J. Ray M c D e r m o tt & Co., Inc., 651 F.2d 1030, 1038 (5th Cir.1981). "The mere allegation that the class is too numerous to m a k e joinder practicable, by itself, is not sufficient to meet this prerequisite." Fleming v. Travenol Laboratories, I n c ., 707 F.2d 829, 833 (5th Cir.1983). W h ile plaintiff has alleged numerosity in his pleadings, has testified as to the d u s t and smoke producing decommissioning operations and has supplied the court with a list of the citizenship of the P O B S and their "first date" on the job site, he has produced no proof of claims forms for any other potential c la im a n t, nor has he supplied information as to alleged length, duration or concentration of any alleged exposure of a n y worker or any information regarding adverse health consequences of any of these workers. Thus, it does not a p p e a r that the evidence presented brings Myers' assertions of numerosity beyond the "mere allegation" level. To th e contrary, with the exception of the separate lawsuit filed by Mr. DeHart, this court may well be faced with a class o f one. Finally, the predominance of individual issues relating to causation and damages, detracts from the s u p e r i o r i t y of the class action device in resolving this litigation. See Exxon Mobile, 461 F.3d at 604-605. As noted b y Judge Fallon with respect to a proposed product liability class action lawsuit, any efficiencies that could be s e c u r e d through class wide adjudication are outweighed by the difficulties associated with class management, given t h e predominance of individual issues. In re Vioxx, 239 F.R.D. at 463. Likewise, in this case, it appears that the p r e d o m in a n c e of individual issues renders adjudication on a class wide basis inferior to separate adjudication of any
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C O N C L U SIO N F o r the above reasons, IT IS RECOMMENDED that the defendants' Motion for P a rtia l Summary Judgement [rec. doc. 167] be granted, and accordingly, that the plaintiff's r e q u e s t to certify this matter as a class action be denied. F a ilu r e to file written objections to the proposed factual findings and/or the p r o p o s e d legal conclusions reflected in this report and recommendation within ten (10) d a y s following the date of its service, or within the time frame authorized by F e d .R .C iv .P 6(b), shall bar an aggrieved party from attacking either the factual fin d in g s or the legal conclusions accepted by the district court, except upon grounds of p lain error. Douglass v. United Services Automobile Association, 79 F.3d. 1415 (5th C ir. 1996). C o u n s e l are directed to furnish a courtesy copy of any objections or responses to the D is tric t Judge at the time of filing. S ig n e d this 9 th day of July, 2009, at Lafayette, Louisiana.

future claims.

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