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Elsea v. U.S. Engineering Co.

Court of Appeals of Missouri, Western District, Special Division

March 17, 2015

DAVID M. ELSEA and JEANNE MORGAN, Individually and as Class Representatives, Appellants,
v.
U.S. ENGINEERING COMPANY, a Corporation, and JACKSON COUNTY, MISSOURI, Respondents

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[Copyrighted Material Omitted]

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Appeal from the Circuit Court of Jackson County, Missouri. The Honorable Jack N. Peace, Judge.

Louis C. Accurso, Burton S. Haigh, and Cory L. Atkins, Kansas City, MO; Edward D. Robertson, Jr., Mary D. Winter, and Anthony L. DeWitt, Jefferson City, MO, for Appellants.

James D. Griffin, Michele F. Sutton, Dennis J. Dobbels, Anthony J. Romano, Travis L. Salmon, and Jennifer J. Eng, Kansas City, MO; Mark G. Arnold and Matthew R. Grant, St. Louis, MO, for Respondents.

Before Special Division: Mark D. Pfeiffer, Presiding Judge, and Cynthia L. Martin and Anthony Rex Gabbert, Judges.

OPINION

Mark D. Pfeiffer, Presiding Judge.

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David M. Elsea and Jeanne Morgan, individually and as class representatives (" Plaintiffs" ), appeal from the decision of the Circuit Court of Jackson County, Missouri

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(" circuit court" ), denying class certification. Plaintiffs filed a tort action in the circuit court on behalf of a proposed class of persons exposed to asbestos fibers claimed to have been caused by U.S. Engineering Company's (" Defendant U.S. Engineering" ) " generation, use, handling, storage, treatment, demolition, removal and disposal of asbestos during the renovation, repair, maintenance and/or remodeling of the [Jackson County Courthouse]," which is owned, operated, and maintained by Jackson County, Missouri (" Defendant County" ) (Defendant U.S. Engineering and Defendant County will be referred to collectively as " Defendants" ). Plaintiffs seek recovery of compensatory damages for the expense of prospective medical monitoring allegedly necessitated by a defined amount of minimum exposure to asbestos fibers at the Jackson County Courthouse (" Courthouse" ). We conclude that the circuit court erred in denying class certification. The circuit court's class certification ruling is reversed, and the case is remanded.

Factual and Procedural Background

Preliminarily, we address the parties' disagreement regarding how we are to review the facts of this case. Plaintiffs assert that " in class certification determinations, the named plaintiffs' allegations are accepted as true." Defendants contend that we are to " take the evidence and the reasonable inferences therefrom in the light most favorable to the judgment."

Defendants' contention is based on an incorrect perception of the trial court's written decision. The trial court issued its ruling on Plaintiffs' motion for class certification in a document entitled " Findings of Fact, Conclusions of Law and Judgment" [1] --after, as Defendants describe in their appellate briefing, a " four-day evidentiary hearing that, in every procedural aspect, was identical to a bench trial." However, a class certification proceeding is a " hearing," and the resulting decision is an " order," [2] which is subject to interlocutory appellate review. See Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997) (stating it is the " content, substance, and effect" of the circuit court's ruling--not its title--that determines the document's ruling status on appeal). Though an appealable order is included within the definition of " judgment" set forth in Rule 74.01(a),[3] the designation of an appealable order as a " judgment" does not control our standard of review.

Instead, in the present procedural posture, we have described our review of " the facts" as follows:

" In class certification determination, the named plaintiffs' allegations are accepted as true." Hale v. Wal-Mart Stores, Inc., 231 S.W.3d 215, 227 (Mo. App.

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[W.D.] 2007) (noting that arguments which tend to negate allegations from the petition should be ignored because such allegations are taken as true for purposes of a class certification motion). Therefore, the determination of class certification is based primarily upon the allegations in the petition.

Hope v. Nissan N. Am., Inc., 353 S.W.3d 68, 74 (Mo. App. W.D. 2011).

" While some evidence relating to the merits may be considered in determining whether the class certification prerequisites have been met, the court must look only so far as to determine whether, given the factual setting of the case, if the plaintiff's general allegations are true, common evidence could suffice to make out a prima facie case for the class." Hale, 231 S.W.3d at 222 (internal citation omitted).

Under this lens of review, the operative facts relating to class certification are as follows: In 1983-84, Defendant County contracted with Defendant U.S. Engineering to perform a retrofit project at the Courthouse in which the Courthouse's air-handling units and corresponding pipes, fittings, and insulation were subject to renovation, repair, maintenance, and/or remodeling. The insulation around the fittings and pipes contained asbestos, of which Defendants were aware. Defendant U.S. Engineering disturbed the asbestos in cutting and wrenching the pipes and fittings wrapped in insulation. The air handling units were not turned off during Defendants' retrofit project. Dust containing asbestos fibers was blown and tracked throughout the Courthouse resulting in layers of dust accumulated throughout the Courthouse and described by one witness as an asbestos powder coating " that you could run your hands through," it covered " everything in various offices," and " it would be on the floors and get walked out of the entrance to the air handlers and then tracked through the [common] areas . . . and . . . courtrooms."

The asbestos fiber dust was not properly removed and/or abated, such that asbestos fibers remain in the Courthouse today. Plaintiffs' experts testified that unless asbestos is properly removed it will remain in the Courthouse for decades, as asbestos does not decay. These same experts testified that their investigation of the Courthouse revealed markedly increased and " greater than normal background levels" of exposure to asbestos to those persons spending eighty or more hours at the Courthouse in a given year since 1983. These experts similarly concluded that there continues to be elevated levels of asbestos in the Courthouse to this day. Most notably, these experts testified that those persons who have been significantly exposed to asbestos in the Courthouse are at a significantly increased risk for latent disease caused by this elevated asbestos exposure: " either [a disease] they've got and nobody knows about yet or one that will develop in the future."

Plaintiffs filed a class action petition against Defendants alleging claims sounding in negligence and strict liability and sought, inter alia, compensatory damages to establish a medical monitoring program for class members. Plaintiffs asserted that the class members have been exposed to dust containing asbestos fibers released by the activities of Defendants at the Courthouse, and that this exposure has created a significantly increased risk of illness or injury, such that there is a reasonable need for early detection and diagnosis. The purpose of the medical monitoring program would be to provide diagnostic testing to detect whether the class members' asbestos exposure has caused or is in the process of causing an injury or illness. The proposed class consists of and includes:

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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.[4]

Plaintiffs sought class certification pursuant to Rule 52.08(b)(3), asserting that common issues of law and fact would predominate over individual issues.

After a four-day evidentiary hearing, the circuit court concluded the opposite--that individual issues would predominate over common issues--and denied class certification. In its ruling, the circuit court noted that individual issues such as actual asbestos exposure--varying and depending upon date, location, and duration of each class member's presence in the Courthouse--created " the presence of so many individualized issues . . . mak[ing] managing a class action for medical monitoring inordinately difficult. There is a likelihood that individual hearings would be necessary to categorize class members, and to address individual issues of exposure, dose, causation and monitoring protocol."

Plaintiffs sought and received this court's permission to file an interlocutory appeal of the circuit court's class certification decision pursuant to Rule 52.08(f), Rule 84.035, and section 512.020(3).

Standard of Review[5]

On appeal, Plaintiffs principally assert that, like the circuit court described in Meyer ex rel. Coplin v. Fluor Corp., 220 S.W.3d 712 (Mo. banc 2007), the circuit court here has failed to appreciate the uniqueness of a medical monitoring claim for damages.

This Court reviews a circuit court's order granting or denying class certification

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for abuse of discretion. Id. at 715. An abuse of discretion occurs when the trial court misapplies the law. Id. at 720 (" The circuit court misapplied the law by applying personal injury concepts to Plaintiff's medical monitoring claim and in holding that these individual personal injury issues were predominate over common issues." ). See also Fritzsche v. E. Tex. Motor Freight Lines, 405 S.W.2d 541, 545 (Mo. App. 1966) (" An abuse of discretion is not merely an error of judgment[,] but consists of a conclusion where the law is overridden or misapplied." ).

" A class certification hearing is a procedural matter in which the sole issue is whether plaintiff has met the requirements for a class action." Meyer, 220 S.W.3d at 715. " 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." Id. " 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." Id. " 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." Craft v. Philip Morris Cos., 190 S.W.3d 368, 377 (Mo. App. E.D. 2005) (citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 2152, 40 L.Ed.2d 732 (1974)). " While some evidence relating to the merits may be considered in determining whether the class certification prerequisites have been met, the court must look only so far as to determine whether, given the factual setting of the case, if the plaintiff's general allegations are true, common evidence could suffice to make out a prima facie case for the class." Hale, 231 S.W.3d at 222 (internal citation omitted).[6] " Inasmuch as Rule ...


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