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Hood v. Gilster-Mary Lee Corp.

United States District Court, W.D. Missouri, Southwestern Division

September 30, 2016

PATRICIA HOOD, et al., Plaintiff,



         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.


         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 Gilster-Mary 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 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- 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.


         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 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 predominate over any questions affecting only individual members, and that a class action is superior to other available methods for ...

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