Paz v. Brush Eng Materials

United States Court of Appeals
Fifth Circuit

FILED
March 29, 2007
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk

______________________

No. 05-60157
______________________

GEORGE PAZ; BARBARA FACIANE; JOE LEWIS; DONALD
JONES; ERNEST E. BRYAN; GREGORY CONDIFF; KARLA
CONDIFF; ODIE LADNER; HENRY POLK; ROY TOOTLE;
WILLIAM H. STEWART, JR.; MARGARET ANN HARRIS;
JUDITH A. LEMON; THERESA LADNER; YOLANDA PAZ,
Individually and on behalf of all others
similarly situated

Plaintiffs-Appellants

v.

BRUSH ENGINEERED MATERIALS INC; BRUSH WELLMAN
INC; WESS-DEL INC; THE BOEING COMPANY
Defendants-Appellees
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CONS/W 05-60388

GEORGE PAZ; ET AL

Plaintiffs

v.

BRUSH ENGINEERED MATERIALS INC; ET AL

Defendants

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------------------------------------------------

JOSEPH P. HARRIS; MARGARET ANN HARRIS; TERRY R.
LEMON; JUDITH A. LEMON; MARLIN MORAN; RODNEY
SORAPURU; HERMELINDA SORAPURU; ALVIN PITTMAN,
SR.

Plaintiffs-Appellants

v.

BRUSH ENGINEERED MATERIALS INC.; ET AL

Defendants

WESS-DEL INC

Defendant-Appellee
_______________________________________________

Appeals from the United States District Court
for
the Southern District of Mississippi, Biloxi
________________________________________________

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

For the reasons previously assigned in Paz v.

Brush Engineered Materials, Inc., 445 F.3d 809

(5th Cir. 2006), we reversed the district court's

dismissal of the appellants' claims against Wess-

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Del for lack of personal jurisdiction, but because

the district court's dismissal of the plaintiffs'

case under Rule 12(b)(6) raised an important

question of state law which the Mississippi courts

had not resolved, we certified a question to the

Mississippi Supreme Court before finally disposing

of this appeal. The question certified was

"[w]hether the laws of Mississippi allow for a

medical monitoring cause of action, whereby a

plaintiff can recover medical monitoring costs for

exposure to a harmful substance without proving

current physical injuries from that exposure?"

The Mississippi Supreme Court has now answered

that question. See Paz v. Brush Engineered

Materials, Inc., 2007 WL 14891 (Miss. 2007). The

court, inter alia, stated: "This Court has

continuously rejected the proposition that within

tort law there exists a cause of action or a

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general category of injury consisting solely of

potential future injury. Therefore, in response

to the question from the Fifth Circuit as to

whether Mississippi recognizes a medical

monitoring cause of action without a showing of

physical injury this Court has previously refused

to recognize such an action and in accordance with

Mississippi common law continues to decline to

recognize such a cause of action." Id. at *6.

The Court also discussed a number of exceptions or

qualifications to this general rule that do not

apply in the instant case. Id. at *2-3.

Accordingly, we conclude that this case is

controlled by the general rule announced by the

Mississippi Supreme Court and requires that we

affirm the district court's judgment on that

basis.

Thus, although we previously concluded that

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the district court erred in dismissing the case

for lack of personal jurisdiction and maintain our

reversal of that ruling, we now conclude, in light

of the Mississippi Supreme Court's answer to the

certified question, that the district court

reached the correct result in granting the

defendants’ Rule 12(b)(6) motion to dismiss. For

these reasons, we affirm the district court’s

judgment on that ground.

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