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GIBBS v. E. I. DUPONT DE NEMOURS & CO.

February 6, 1995

HARRY F. GIBBS, SR.; ROBERT BAILEY, SR.; ANTHONY D'ORAZIO, JR; AND WILLIAM E. MOONEY, on behalf of themselves and a class of all persons similarly situated, Plaintiffs, -vs- E. I. DuPONT DE NEMOURS & CO., INC.; ALLIED-SIGNAL INC., successor-in-interest to the Allied Chemical Corp.; FIRST MISSISSIPPI CORPORATION; FIRST CHEMICAL CORPORATION; AMERICAN CYANAMID COMPANY; and USX CORPORATION, successor-in-interest to United States Steel Corporation, Defendants.


The opinion of the court was delivered by: JOHN T. CURTIN

 CURTIN, District Judge

 BACKGROUND

 This is one of a series of cases involving the high incidence of bladder cancer among employees of the Goodyear Tire & Rubber Company in Niagara Falls, New York. In this action, plaintiffs Harry Gibbs, Robert Bailey, Anthony D'Orazio, and William Mooney, all former employees of Goodyear, sue defendants DuPont, Allied-Signal, First Mississippi, First Chemical, Cyanamid and USX in negligence and strict product liability. Plaintiffs claim that the defendants manufactured and sold orthotoluidine and/or anilide to Goodyear without providing adequate warning of the health hazards of these products. Plaintiffs further claim that these chemical compounds were defective and unreasonably dangerous when used in a foreseeable manner and that exposure to these substances subjected them to a significant excess risk of developing bladder cancer.

 Plaintiffs move to certify a class under Rule 23(b)(2) of the Federal Rules of Civil Procedure of all retired and former Goodyear employees at the Niagara Falls plant who were assigned to work in Department 245 or had job duties which exposed them to the substances orthotoluidine and aniline during the period of January 1, 1957, through June 11, 1990, and who have not been diagnosed with bladder cancer. None of the named plaintiffs claim to have any present physical injury. Rather, they rely on a study conducted by the National Institute for Occupational Safety and Heath ("NIOSH"), which found that the Goodyear workers at the Niagara Falls plant have an excess risk of developing bladder cancer ranging from 3.6 to 27.2 times the normal risk. Because of the long latency period, NIOSH recommended an ongoing medical monitoring program designed to detect bladder cancer at its earliest stage. *fn1" Thus, plaintiffs seek injunctive relief in the form of a court-administered fund paid for by defendants which would cover the reasonably anticipated costs of a medical monitoring program for bladder cancer for the lifetime of the class members.

 Defendants move to dismiss the complaint on several grounds. They assert that plaintiffs' claim is moot because Goodyear already provides a medical monitoring program and the plaintiffs' union, the Oil, Chemical, and Atomic Workers, provides bladder cancer screening. They argue that plaintiffs have failed to state a claim because New York State law does not recognize a cause of action for medical monitoring damages. They contend that the court has no subject matter jurisdiction because plaintiffs' individual claims do not exceed $ 50,000, the statutory minimum amount in controversy for diversity jurisdiction. Finally, defendants oppose the motion for class certification on the grounds that: 1) plaintiffs failed to conform to Local Rule 15, thereby waiving their class allegations; 2) plaintiffs' pleadings do not satisfy the threshold requirements of Rule 23(a); and 3) class certification for injunctive relief is inappropriate for a medical monitoring claim.

 DISCUSSION

 I. Mootness

 Federal courts must determine whether there is a live controversy before assuming jurisdiction. Mathis v. Bess, 692 F. Supp. 248, 257 (S.D.N.Y. 1988). Defendants argue that plaintiffs' claims are moot because Goodyear has a medical monitoring program that screens current and former employees for bladder cancer which is comprehensive and uses all medically appropriate tests and technology. See Item 30, Exhibit N (Hense Aff.).

 Plaintiffs reply that the screening program is inadequate because: (1) it is not available to former employees who are not retirees; (2) certain necessary tests are not offered to those who reside outside Western New York; (3) the program is only experimental; (4) participants may not enter the program until their birth month, (5) follow-up procedures are below the expected standard of care, (6) it fails to provide for technological advances, outreach, education, and data analysis and dissemination, and (7) the Goodyear health insurance plan for retirees, providing a collateral source for follow-up tests, gives no relief for other former employees. Item 31 at 13-14, Ex. E (Aliotta Aff.). In a supplemental memorandum, the plaintiffs further contend that even if the current program was adequate, defendants have failed to show that the plaintiffs have any legal entitlement to its continuation. Item 38.

 The issue of whether the medical monitoring currently available to named plaintiffs and those in the proposed class is adequate is necessarily one of fact. Both parties have submitted expert affidavits concerning the types of procedures which are necessary to insure early detection of bladder cancer. Plaintiffs have provided a sufficient critique of the current Goodyear program to show that a factual dispute exists regarding its adequacy. Therefore, summary judgment on mootness is inappropriate at this stage.

 II. Medical Monitoring

 Defendants contend that plaintiffs' complaint fails to state a claim because the New York Court of Appeals has not and, if presented with the issue, would not recognize a cause of action for medical monitoring. State law announced by the highest court in the forum state is controlling in federal court in a diversity case. Erie Railroad v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938). Where there is no decision by the highest court, "then federal authorities must apply what they find to be the state law after giving 'proper regard' to relevant rulings of other courts of the state." Commissioner v. Bosch, 387 U.S. 456, 465, 18 L. Ed. 2d 886, 87 S. Ct. 1776 (1967). The New York Court of Appeals has not yet recognized a cause of action for medical monitoring. Defendants cite several examples of Court of Appeals decisions which express hesitancy at the judicial creation or expansion of tort liability in such fields as psychic injury, DES, fetal rights, and asbestos. Item 21 at 28-32. They argue that this caution by New York's highest court would carry over to medical monitoring. Defendants urge this court not to create such an expansion in the absence of any clear direction from the state judiciary.

 Plaintiffs claim to the contrary that New York was one of the first states to recognize that the future expenses of medical monitoring could be a recoverable consequential damage from exposure to toxic chemicals if the plaintiffs could prove an increased risk of future harm by reason of their exposure and a reasonable anticipation that the expenditures for medical monitoring would be incurred as a result. Askey v. Occidental, 102 A.D.2d 130, 477 N.Y.S.2d 242, 247 (4th Dept. 1987). Plaintiffs cite several earlier cases to show that Askey is consistent with well-settled New York law. See Item 31 at 29-30.

 Defendants counter that the discussion plaintiffs rely on in Askey was dictum and unworkable as a standard because it is unclear whether a showing of present injury or the probability of future injury is necessary for recovery. Item 21 at 33-37. No appellate court in New York State to date has held that a cause of action exists for medical monitoring. Indeed, defendants cite several recent asbestos cases in which appellate division courts affirmed summary judgment orders dismissing tort actions where there was no physical manifestation of contamination nor even allegations of "actual exposure to asbestos, at toxic levels, sufficient to state a cause of action upon which relief can be based." Jones v. Utilities Painting Corp., 198 A.D.2d 268 (2d Dept. 1993) (citing cases). Defendants argue that these cases show that New York courts follow a "proof of physical injury" standard as the predicate for liability on a medical monitoring claim. Item 21 at 38-40.

 In response, plaintiffs refer to a four-part test developed by the United States Courts of Appeals for the Third Circuit to determine whether a cause of action for ...


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