Hood et al v. Gilster-Mary Lee Corporation et al

Filing 137

ORDER denying 113 motion to certify class. Signed on 9/30/16 by District Judge M. Douglas Harpool. (View, Pat) Modified on 9/30/2016 (View, Pat). Copy of Order mailed to Robert Brizendine and Thomas Allen.

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHWESTERN DIVISION

PATRICIA HOOD, et al.,

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Plaintiff,
vs.
GILSTER-MARY LEE CORPORATION,
Defendant.

Case No. 3:14-cv-05012-MDH

ORDER
Before the Court is Plaintiff’s Motion for Rule 23 Class Certification. (Doc. 113). The
parties have fully briefed the pending motion and on August 9, 2016 the Court held oral
argument. The matter is now ripe for review.
BACKGROUND
Plaintiffs originally filed this suit in Jasper County, Missouri on behalf of themselves and
all others similarly situated alleging they are former or current employees of defendant GilsterMary Lee which owns and operates a microwave popcorn packaging plant in Jasper, Missouri.1
Plaintiff claims she suffers from lung impairment and/or suffers from lung impairment that has
not yet fully manifested resulting from exposure to natural and artificial butter flavoring
products, compounds and ingredients, including but not limited to diacetyl. Diacetyl was used at
the Jasper plant beginning in 1986 until approximately March 2008 and it has been concluded
that exposure to diacetyl vapors may cause increased incidence of lung problems or respiratory
diseases. As a result, the Jasper plant, where diacetyl was used in the butter flavoring, has been

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Nora De La Rosa is the only remaining named plaintiff.
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the focus of litigation in multiple cases filed by current and former employees. The previous
personal injury cases appear to have focused on the manufacturers of the butter flavoring. Prior
claims against the Jasper plant were primarily brought as Missouri Worker’s Compensation
claims based on personal injuries employees may have suffered as a result of their exposure.
In this case, Plaintiff moves the Court to certify the following class of individuals:
All persons who, prior to January 1, 2008, worked for a period of one (1) year or
more at the Gilster-Mary Lee plant in Jasper, Missouri.
Plaintiff seeks this class for the purpose of establishing a medical monitoring program in order to
diagnose the warning signs of lung disease caused by exposure to the diacetyl contained in the
butter flavoring used in the production of microwave popcorn at the Jasper plant. Plaintiff
argues an individual claim for medical monitoring is not “economically viable,” and if a class is
not certified Plaintiff and other class members will have no remedy for their exposure to diacetyl
at the Jasper plant. Defendant raises multiple arguments in opposition to class certification,
including the predominance of individual issues, the superiority of either individual litigation or
worker’s compensation claims, and the unmanageability of this case as a class action.
The lawsuit was originally filed in Missouri state court and Defendants removed the case
to federal court  under the Class Action Fairness Act. See 28 U.S.C. §§ 1332, 1441(a)-(b), 1453.
This court was (and in fact still is) convinced from the evidence previously presented that the
overwhelming majority of the members of the putative class are Missouri residents. Because of
the belief and the fact the alleged exposure took place in Missouri while putative class members
were physically working in Missouri, for a Missouri employer, in an employment relationship
governed by Missouri employment and Worker’s Compensation law, this Court ruled that
remand was appropriate based on CAFA’s local-controversy exception. See Hood v. Gilster-

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Mary Lee Corp., 2015 WL 328409 (W.D. Mo. Jan. 26, 2015), citing 28 U.S.C. § 1332(d)(4). At
the time, this Court’s prior decision was consistent with decisions of other district courts
interpreting the proof requirements required for remand under CAFA. See e.g., Elsea v. Jackson,
Cnty., Mo., 2010 WL 4386538 (W.D. Mo. Oct. 28, 1010)2, Randall v. Evamor, Inc., 2010 WL
1727977 (E.D. Mo. Apr. 29, 2010), Tonnies v. Southland Imports, Inc., 2009 WL 3172565 (E.D.
Mo. Sept. 29, 2009), Clover v. Sunset Auto Co., 2009 WL 2757050 (E.D. Mo. Aug. 26, 2009),
and Redd v. Suntrup Hyundai, Inc., 2009 WL 2568054 (E.D. Mo. Aug. 18, 2009).
However, on appeal, the 8th Circuit reversed this Court’s order of remand, and in essence
adopted a new higher standard of proof finding Plaintiffs had failed to meet the new evidentiary
burden of proving conclusively that a sufficient number of the former Missouri employees were
actually still Missouri residents. Hood v. Gilster-Mary Lee Corp., 785 F.3d 263, 266 (8th Cir.
2015). This court is therefore left to decide this case pursuant to the federal jurisdiction provided
in CAFA.
DISCUSSION
For the reasons set forth herein, it is clear to this Court that Plaintiff would prevail in her
request for class certification of a medical monitoring claim under the Missouri Supreme Court’s
analysis. This case is very similar to class action cases on medical monitoring decided by both
the Missouri Supreme Court and the Court of Appeals. See, Elsea v. U.S. Eng'g Co., 463 S.W.3d
409 (Mo. Ct. App. 2015), reh’g and/or transfer denied (Apr. 28, 2015), transfer denied (June 30,
2015); and Meyer ex rel. Coplin v. Fluor Corp., 220 S.W.3d 712 (Mo. 2007). As more fully
discussed herein, in each circumstance class action certification of classes seeking medical

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As discussed herein, in Elsea, after the case was remanded to state court, the Missouri Court of
Appeals found plaintiff’s class definition met the class certification requirements pursuant to
Missouri state law.
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monitoring benefits was found to be valid. However, the law of the Eighth Circuit is not nearly
so welcoming of class actions seeking medical monitoring rights. See e.g., In re St. Jude Med.,
Inc., 425 F.3d 1116 (8th Cir. 2005); and In re St. Jude Med., Inc., 522 F.3d 836 (8th Cir. 2008).
As a result, Plaintiff’s request for class certification seeking medical monitoring rights
under the federal Class Action Fairness Act presents a difficult question. This court must
evaluate Plaintiff’s request for class certification in light of overwhelming support under state
law, but in the shadows of concerns regarding class certification of medical monitoring cases
clearly expressed in Eighth Circuit precedent.
Pursuant to Fed. R. Civ. P. 23(a) the following prerequisites must be met in order to bring
a class action:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or
defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the
class.
Fed. R. Civ. P. 23(a); see also In re St. Jude Medical Inc., 425 F.3d 1116, 1119 (8th Cir. 2005).
Further, if the Plaintiff can meet the prerequisites of Fed. R. Civ. P. 23(a), a class action
may then only be maintained if one of the following is met:
(1) prosecuting separate actions by or against individual class members would
create a risk of: (A) inconsistent or varying adjudications with respect to
individual class members that would establish incompatible standards of
conduct for the party opposing the class; or (B) adjudications with respect to
individual class members that, as a practical matter, would be dispositive of
the interests of the other members not parties to the individual adjudications
or would substantially impair or impede their ability to protect their interests;
(2) the party opposing the class has acted or refused to act on grounds that apply
generally to the class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a whole; or
(3) the court finds that the questions of law or fact common to class members
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predominate over any questions affecting only individual members, and that a
class action is superior to other available methods for fairly and efficiently
adjudicating the controversy.
Id., Fed. R. Civ. P. 23(b). Here, Plaintiff moves the Court to certify a class under Rule 23(b)(2)
and/or Rule 23(b)(3).
Plaintiff has the burden of establishing that the requirements of Fed. R. Civ. P. 23 have
been met in order to certify a class. Luiken v. Domino’s Pizza, LLC, 705 F.3d 370, 372 (8th Cir.
2013). Further, the Court has broad discretion in determining whether class certification is
appropriate. Prof’l Firefighters Ass’n of Omaha, Local 385 v. Zalewski, 678 F.3d 640, 645 (8th
Cir. 2012).
1. Rule 23(a)
Initially, Plaintiff must satisfy the four requirements of Rule 23(a). Defendant does not
contest the first element, numerosity, but disputes that Plaintiff is able to demonstrate
commonality, typicality or adequacy. Therefore, the Court will address those elements first.
A. Typicality
“The burden of demonstrating typicality is fairly easily met so long as other class
members have claims similar to the named plaintiff.” DeBoer v. Mellon Mortgage Co., 64 F.3d
1171, 1174 (8th Cir. 1995). In establishing typicality, Plaintiff must identify persons who have
been subjected to the same or similar treatment, or in this case exposure, as plaintiff. See
Donaldson v. Pillsbury Co., 554 F.2d 825, 830 (8th Cir. 1977).

Typicality is generally

considered to be met “if the claims or defenses of the representatives and the members of the
class stem from a single event or are based on the same legal or remedial theory.” Paxton v.
Union Nat. Bank, 688 F.2d 552, 561-62 (8th Cir. 1982) (internal citations omitted).

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Defendants only argument against Plaintiff’s ability to meet the typicality requirement is
that she worked at the Jasper Plant from 1993 – 2000 as a permanent, regular employee and that
her employment is not typical of the temporary agency employees who “formed a substantial
part of the Jasper plant work force.”
Plaintiff states she spent time in nearly every area of the plant during her employment,
was exposed to diacetyl in her employment and is at an increased risk for developing diacetyl
induced lung disease making her claims typical of those in the class she seeks to represent. The
Court finds based on the limited relief sought by Plaintiff (medical monitoring), and the class she
seeks to certify, the proposed members of the class stem from a single “event,” i.e. exposure to
diacetyl in the Jasper plant, and are based on the same requested relief, i.e., medical monitoring.
The Court finds Plaintiff has met this element.
B. Adequate Representation
“The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest
between named parties and the class they seek to represent,” and the class representative is
required to be a member of the class and “possess the same interest and suffer the same injury as
the class members.” Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 625–26, 117 S. Ct. 2231,
2250–51, 138 L. Ed. 2d 689 (1997).
Defendant argues numerous reasons it believes Plaintiff cannot adequately represent a
class in this case. Defendant first contends Plaintiff has not been diagnosed with any diacetyl
related lung disease and that her remedy for any consequence from that exposure will be subject
to pre 2014 Worker’s Compensation Law. Defendant further argues Plaintiff participated in the
national Institute of Occupational Safety and Health (“NIOSH”) testing but did not obtain her
results and therefore should be disqualified as a representative. Finally, Defendant points to a

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criminal marriage fraud conviction from 1989 as a basis to disqualify Plaintiff as an adequate
representative.
Here, Plaintiff seeks to establish a medical monitoring program to identify any lung
diseases that were caused by exposure to diacetyl in the Jasper plant. There is no indication of a
conflict of interest between Plaintiff and the proposed class and Plaintiff would certainly be a
member of the proposed class. The Court makes no further determination regarding whether
Plaintiff’s individual claim would be valid, or whether her claim specifically would be subject to
the statute of limitations or worker’s compensation laws.

However, based on the Court’s

findings below, whether Plaintiff would be an adequate representative is not determinative of this
Court’s ruling. Nonetheless, for purposes of this Order, the Court finds Plaintiff has met this
burden.
C. Commonality
The 8th Circuit has stated commonality, under Rule 23(a)(2) requires Plaintiff to establish
there are questions of law or fact common to all the proposed plaintiffs. Paxton v. Union Nat.
Bank, 688 F.2d at 561. Commonality may be satisfied “when the legal question ‘linking the
class members is substantially related to the resolution of the litigation.”” DeBoer v. Mellon
Mortgage Co., 64 F.3d at 1174. However, “commonality requires a showing that class members
“have suffered the same injury.” Powers v. Credit Mgmt. Servs., Inc., 776 F.3d 567, 571 (8th
Cir. 2015) (internal citations omitted). “What matters to class certification ... is not the raising of
common ‘questions’ - even in droves - but, rather the capacity of a classwide proceeding to
generate common answers apt to drive the resolution of the litigation.” Id. (emphasis added).
On the other hand, the analysis pursued by Missouri state courts differs from that in the
8th Circuit and has focused on whether common questions exist. Missouri courts have found

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commonality to exist in medical monitoring cases stating: “Here, it is the common fact of
exposure to a set of toxins from a single source that is the common and overriding issue in
Plaintiffs case.” Elsea v. U.S. Eng’g Co., 463 S.W.3d at 419; see also, Meyer ex rel. Coplin v.
Fluor Corp., 220 S.W.3d at 719 (“The significance and extent of toxic exposure is primarily an
issue of common proof. Under this theory of liability, the individual factors identified by the
circuit court are not particularly relevant because the need for monitoring is based on a common
threshold of exposure. Whether Plaintiff is able to prove this theory is, at this stage, irrelevant
because the sole issue is whether Plaintiff met the requirements for a cause of action, not whether
Plaintiff will ultimately prevail.”).

The Missouri courts found commonality had been met

because the “the significance and extent of toxic exposure is primarily an issue of common
proof” and the need for medical monitoring is based on the common threshold of exposure. Id.
As the Court initially stated, there is a clear and significant divergence between the
Missouri state court opinions and the 8th Circuit’s analysis of class certification of medical
monitoring in toxic exposure cases. Plaintiff argues, citing to the Missouri state cases, that the
following issues are common to the members of Plaintiff’s proposed class: 1) whether there
were significant levels of diacetyl present in the Jasper plant; 2) whether as a result of exposure
to diacetyl Plaintiff, and the proposed class members, are at an increased risk of developing lung
disease; and 3) whether medical monitoring is necessary to diagnose any diacetyl induced lung
disease.
On the other hand, Defendant argues while Plaintiff has identified common questions that
may exist between the Plaintiff and the potential class members, there are no common answers as
required by 8th Circuit analysis. For example, Defendant argues the levels of diacetyl exposure
vary widely based on the time a potential class member worked in the plant. This is due, in part,

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based on the use of respirators and a supplied air system that was implemented during the time
frame of the proposed class. Defendant also argues the length of employment of each plaintiff,
which correlates to the exposure levels of each plaintiff, will greatly vary. Further, Defendant
argues employees who may have worked in the mixing room where the diacetyl was used in
1999 would have entirely different exposure than an employee who worked in an office in 2007.
Finally, Defendant argues there is no common answer to the individual medical issues each
plaintiff may potentially have. Defendant argues for example, class members already diagnosed
with lung disease would not need to be re-diagnosed and other individuals who have no
symptoms 30 years after exposure do not need medical monitoring at this time.
In response to these arguments, Plaintiff states that the reports conducted by NIOSH have
shown that the recorded levels of diacetyl in all areas of the Jasper plant, including offices,
outside the plant, the packing area, and the mixing room, exceeded the proposed standard.
Plaintiff offers there is a common question of exposure that applies to all the members of the
class and therefore both certification and medical monitoring are appropriate.
This Court is mindful that the 8th Circuit precedent on toxic exposure medical
monitoring cases is binding on this Court for purposes of analyzing Plaintiff’s motion to certify
the class. The Court believes the purported class has the common question of exposure to
diacetyl. However, despite the common question of exposure, there may not be a common
answer to whether class members “have suffered the same injury.” Certainly a wide variety of
responses to the various degrees of injury would need to follow. Unique medical histories and
exposure levels would likely lead to variations in appropriate monitoring protocols.
2. Rule 23(b)
If Plaintiff has satisfied the requirements of Rule 23(a), the Court must still determine if
Plaintiff is able to maintain the certification of a class under 23(b). Plaintiff moves the Court to
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certify the class under either Federal Rule 23(b)(2) which provides for injunctive relief and/or
Federal Rule 23(b)(3) based upon the fact that common issues predominate in the case and
therefore class action is a superior vehicle for resolution of the claims presented.
A. 23(b)(3)
Rule 23(b)(3) requires a finding “that the questions of law or fact common to class
members predominate over any questions affecting only individual members, and that a class
action is superior to other available methods for fairly and efficiently adjudicating the
controversy.” Powers v. Credit Mgmt. Servs., Inc., 776 F.3d 567, 569 (8th Cir. 2015).
Once again, the Court has noted the issue of whether questions of law or fact are common
to class members differs greatly when analyzed under Missouri state court versus federal court
opinions. “The nature of the evidence that will suffice to resolve a question determines whether
the question is common or individual.” Blades v. Monsanto Co., 400 F.3d 562, 566–67 (8th Cir.
2005) (internal citations omitted). If the evidence needed to make a Plaintiff’s prima facie case
will vary from plaintiff to plaintiff then it is an individual question. Id. However, if plaintiffs
can use the same evidence for each member to establish a prima facie claim, then it becomes a
common question.

Id.

In making this determination, the Court may conduct a limited

preliminary inquiry, looking behind the pleadings. Id. (“In conducting this preliminary inquiry,
however, the court must look only so far as to determine whether, given the factual setting of the
case, if the plaintiffs general allegations are true, common evidence could suffice to make out a
prima facie case for the class.”).
In discussing the plaintiffs’ request for “the highly individualized remedy” of a medical
monitoring class, the 8th Circuit stated “the need for detailed and individual factual inquiries
concerning the appropriate remedy for any violation still weighs strongly against class

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certification.” In re St. Jude Med., Inc., 522 F.3d 836, 840 (8th Cir. 2008); citing Windham v.
Am. Brands, Inc., 565 F.2d 59, 68 (4th Cir.1977) (en banc); Abrams v. Interco Inc., 719 F.2d 23,
31 (2d Cir.1983); see also Amchem Products, Inc. v. Windsor, 521 U.S. at 624 (1997). The 8th
Circuit cited to Amchem Products which stated exposure only plaintiffs will “incur different
medical expenses because their monitoring and treatment will depend on singular circumstances
and individual medical histories.” Id. at 840-841.
On the other hand, in Meyer ex rel. Coplin v. Fluor Corp., the Missouri Supreme Court
reversed and remanded the denial of class certification in a tort action based on lead exposure.
220 S.W.3d 712 (Mo. 2007). The plaintiff “alleged negligence, strict liability, private nuisance,
and trespass as theories of liability and sought compensatory damages to establish a medical
monitoring program for class members.” Id. at 714. The Missouri Supreme Court stated: “A
single common issue may be the overriding one in the litigation, despite the fact that the suit also
entails numerous remaining individual questions.” Id. at 716. The Court found that medical
monitoring is “a compensable item of damage when liability is established under traditional tort
theories of recovery.” Id. at 717.
The trial court denied class certification stating:
Individual 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.
Id. at 719. However, in reversing this finding, the Missouri Supreme Court stated:
It is the common fact of exposure to a set of toxins from a single source that is the
common and overriding issue in Plaintiff's case. The significance and extent of
toxic exposure is primarily an issue of common proof. Under this theory of
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liability, the individual factors identified by the circuit court are not particularly
relevant because the need for monitoring is based on a common threshold of
exposure. Whether Plaintiff is able to prove this theory is, at this stage, irrelevant
because the sole issue is whether Plaintiff met the requirements for a cause of
action, not whether Plaintiff will ultimately prevail.
Id.
Further, in Elsea v. U.S. Eng’g Co., the Missouri Court of Appeals reversed and
remanded a case in which the trial court denied class certification in a medical monitoring case.3
463 S.W.3d 409 (Mo. Ct. App. 2015). The plaintiffs in Elsa were individuals exposed to
asbestos fibers by U.S. Engineering’s handling, storage, removal and disposal of asbestos during
a renovation and repair of the Jackson County Courthouse.4 Id. at 413. The plaintiff sought
compensatory damages to establish a medical monitoring program for class members. Id. at 414.
The court stated the “general consensus that has emerged in [medical monitoring] cases is that a
plaintiff can obtain damages for medical monitoring upon a showing that the plaintiff has a
significantly increased risk of contracting a particular disease relative to what would be the case
in the absence of exposure.” Id. at 417. The Court found that a single common issue, despite
the fact that it may entail numerous remaining individual questions, is enough to meet
commonality. Id. at 419. Further, the Court found that the circuit court’s determination that

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The Missouri Court of Appeals stated: “A class certification hearing is a procedural matter in
which the sole issue is whether plaintiff has met the requirements for a class action. Thus, the
trial court has no authority to conduct a preliminary inquiry into whether the plaintiff has stated a
cause of action or will prevail on the merits. Although the class certification decision lies in the
circuit court’s discretion the courts should err in close cases in favor of certification because the
class can be modified as the case progresses. The issue is not whether the plaintiff has stated a
cause of action or will prevail on the merits, but rather whether plaintiff has met the requirements
for a class action.” Id. at 416 (internal citations omitted).
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The proposed class was “1. Missouri residents who were employed by the State of Missouri or
employed by the County of Jackson, and worked inside the Courthouse for a period of time
exceeding two consecutive weeks from 1983 to the present, or because of their duties, were
required to work inside the Courthouse for a period of more than 80 hours in a year from 1983 to
the present. 2. Missouri residents who, as a result of their employment, were required to spend
more than two consecutive weeks in the Courthouse, or over the course of any given year, were
required to spend a total of eighty hours in the Courthouse.” Id. at 415. 
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individual issues involving causation and damages predominated over common issues was
reversible. Id. at 421.
The predominance requirement tests whether proposed classes are sufficiently
cohesive to warrant adjudication by representation. To satisfy this requirement,
not every single issue must be common to all class members. In fact, the
predominance requirement can be satisfied if there is one single common issue
that is the overriding issue in the litigation. This single predominant issue need
not even be dispositive of the case. [T]he fundamental question is whether the
group aspiring to class status is seeking to remedy a common legal grievance.
Id. at 422. In Elsea, the court held “the medical monitoring issue affecting the entire putative
class is based upon the common and overriding fact of a threshold level of asbestos exposure
caused by a single source.” Id. As the Court has discussed herein, under Missouri’s state court
opinions, the class certification of Plaintiff’s claim for medical monitoring appears appropriate.
On the other hand, the 8th Circuit has denied class certification of a medical monitoring
claim stating: “[p]roposed medical monitoring classes suffer from cohesion difficulties, and
numerous courts across the country have denied certification of such classes.” In re St. Jude
Med., Inc., 425 F.3d 1116, 1122 (8th Cir. 2005) (internal citations omitted). The 8th Circuit
rejected the “highly individualized remedy of medical monitoring” because “it presented too
many individual and legal issues.” In re St. Jude Med., Inc., 522 F.3d at 840. The 8th Circuit
has stated the court may decline to certify such a class “where the predominance of individual
issues is such that limited class certification would do little to increase the efficiency of the
litigation.” In re St. Jude Med., Inc., at 841.
Here, the Court finds that based on the 8th Circuit’s analysis, there are other available
methods for fairly and efficiently adjudicating this medical monitoring claim. Some members of
this class have already pursued other methods. Exposure only plaintiffs, as discussed in St Jude,
will incur different medical expenses because their treatment and monitoring will depend on

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individual medical histories. Further, some members of the proposed class have either already
filed a worker’s compensation claim, or may have that method of relief available to them for
fairly and efficiently adjudicating their claim. As a result, under the 8th Circuit’s precedent, the
Court finds Plaintiff has failed to set forth the requirements to certify a class under Rule 23(b)(3).
B. 23(b)(2)
Rule 23(b)(2) states the party opposing the class has acted or refused to act on grounds
that apply generally to the class, so that final injunctive relief or corresponding declaratory relief
is appropriate with respect to the class as a whole. See Paxton v. Union Nat. Bank, 688 F.2d at
563. “Class certification under Rule 23(b)(2) is proper only when the primary relief sought is
declaratory or injunctive.” In re St. Jude Med., Inc., 425 F.3d 1116, 1121 (8th Cir. 2005).
Further, “although Rule 23(b)(2) contains no predominance or superiority requirements, class
claims thereunder still must be cohesive.” Id. A “suit could become unmanageable and little
value would be gained in proceeding as a class action ... if significant individual issues were to
arise consistently.” Id. (internal citations omitted).
Again, with regard to medical monitoring cases, the 8th Circuit has stated “proposed
medical monitoring classes suffer from cohesion difficulties, and numerous courts across the
country have denied certification of such classes.” Id. at 1122, citing, Ball v. Union Carbide
Corp., 385 F.3d 713, 727–28 (6th Cir.2004); Zinser v. Accufix Research Inst., Inc., 253 F.3d
1180, 1195–96, amended, 273 F.3d 1266 (9th Cir.2001); Barnes v. Am. Tobacco Co., 161 F.3d
127, 143-146 (3d Cir.1998); Boughton v. Cotter Corp., 65 F.3d 823, 827 (10th Cir.1995).
“[Exposure-only plaintiffs] will also incur different medical expenses because their monitoring
and treatment will depend on singular circumstances and individual medical histories.” Id.
(internal citation omitted).

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Plaintiff argues because the purported class only seeks medical monitoring, as an
injunctive remedy, a mandatory class under Rule 23(b)(2) is the “preferred mechanism” for
certification.

Plaintiff contends all the members of the putative class “suffered the same

underlying injury,” i.e. exposure to diacetyl. Plaintiff again cites to the Missouri Court of
Appeals decision stating “class actions which aggregate small claims that could not otherwise be
brought are exactly the type of claims that satisfy the superiority requirement.” In balancing the
relative merits of class action versus alternative methods of adjudicating the controversy, courts
should consider “the inability of the poor or uninformed to enforce their rights, and the
improbability that large numbers of class members would possess the initiative to litigate
individually.” Elsea v. U.S. Eng'g Co., 463 S.W.3d at 423 (internal citations omitted).
However, for the reasons set forth herein, the Court finds that class certification for
purposes of medical monitoring is inappropriate based on the 8th Circuit’s holdings. Here, there
may be numerous differences between the class members, including some who may have already
been diagnosed with lung disease, may already be under the care of a physician and/or medical
monitoring, and those that may have no symptoms at all. Further, other potential class members
may have already brought personal injury suits seeking the same relief. In addition, some
plaintiffs have already filed worker’s compensation claims which may cover medical monitoring
for their claims and for many of the proposed class members worker’s compensation benefits
may be available.

Finally, if medical monitoring revealed an exposure related disease,

identification of adequate remedies would require individual analysis either through the worker’s
compensation system or the Missouri court system. Therefore, for all the reasons discussed
herein, while the Court believes this case would be certified as a class for medical monitoring in
the state court system, the federal law does not uphold the same result.

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Finally, this Order should be construed narrowly as denying certification of only the class
as requested in Plaintiff’s motion. For example, should Plaintiff choose to move to certify a
class that included only Missouri residents, or a class that otherwise meets the CAFA exception
under 28 U.S.C. § 1332(d), in light of the 8th Circuit’s recent opinion, the class might well be
found to meet the requirements of certification for medical monitoring by Missouri courts under
Missouri law. See Hood v. Gilster-Mary Lee Corp., 785 F.3d at 266 (“The Seventh Circuit notes
two ways plaintiffs can meet their burden: (1) affidavit evidence or statistically significant
surveys showing two-thirds of the class members are local citizens, or (2) redefine the class as
only local citizens.”) (internal citations omitted).
CONCLUSION
WHEREFORE, for the reasons stated herein, the Court DENIES Plaintiff’s Motion for
Rule 23 Class Certification. (Doc. 113).
IT IS SO ORDERED.
DATED:

September 30, 2016
/s/ Douglas Harpool_________________
DOUGLAS HARPOOL
UNITED STATES DISTRICT JUDGE

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