United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 18, 2007
______________________
No. 05-60157 Charles R. Fulbruge III
______________________ Clerk
GEORGE PAZ; BARBARA FACIANE; JOE LEWIS; DONALD JONES; ERNEST E.
BRYAN; GREGORY 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
------------------------------------------------
CONS/W 05-60388
GEORGE PAZ; ET AL
Plaintiffs
v.
BRUSH ENGINEERED MATERIALS INC; ET AL
Defendants
------------------------------------------------
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
1
________________________________________________
Appeal from the United States District Court for
the Southern District of Mississippi, Biloxi
________________________________________________
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
ON PETITION FOR PANEL REHEARING
(Opinion, March 29, 2007, 5th Cir., 483 F.3d 383
(5th Cir. 2007))
PER CURIAM:
The petition for panel rehearing is DENIED.
DENNIS, Circuit Judge, dissenting from the denial of panel
rehearing:
I respectfully dissent from the refusal to rehear this case.
The panel majority refuses to exercise our discretion to remand the
case so that the plaintiffs can amend their complaint in light of
the Mississippi Supreme Court’s response to our certified question.
This denial does not foreclose the plaintiffs from re-filing their
claims of physical injury caused by defendants’ allegedly tortious
conduct, but this denial may incur additional delays and costs on
both parties.
I.
In Paz v. Brush Engineered Materials, Inc., 445 F.3d 809 (5th
Cir. 2006), we certified a question to the Mississippi Supreme
Court. The question certified was "[w]hether the laws of
Mississippi allow for a medical monitoring cause of action, whereby
2
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 answered that question. See Paz
v. Brush Engineered Materials, Inc., 949 So.2d 1 (Miss. 2007).
Accordingly, in Paz v. Brush Engineered Materials, Inc. II, 483
F.3d 383 (5th Cir. 2007), we concluded that this case is controlled
by the general rule announced by the Mississippi Supreme Court and
affirmed the district court's judgment on that basis.
The plaintiffs-appellants petitioned for rehearing so that we
may remand the case to the district court as to allow them an
opportunity to amend their complaint so that their claims can
accord with the Mississippi Supreme Court opinion.
II.
While the plaintiffs’ claims in their initial complaint do
not fit within the scope of cognizable torts as elucidated by the
Mississippi Supreme Court opinion, the plaintiffs can still
arguably re-fashion their claims as cognizable torts in accordance
with that opinion. Since the district court and the plaintiffs did
not have the benefit of that Mississippi Supreme Court opinion
before a judgment was rendered, the case should be remanded for the
limited purpose of allowing the plaintiffs an opportunity to move
to amend their complaint and the district court to consider such a
motion, now guided by that opinion.
3
Affirming a district court order with a limited remand to
provide an opportunity for the plaintiffs to amend their complaint
is sometimes a discretionary remedy permitted by this court for
plaintiffs faced with an objectively uncertain state of the law
often resulting in deficient claims. See In re Burzynski, 989
F.2d 733, 745 (5th Cir. 1993) (affirmed district court dismissal
and remanded so as to “permit the plaintiff to attempt to amend
his pleadings to state a claim.”). See also Summer v. Land &
Leisure, Inc., 664 F.2d 965, 971 (5th Cir. 1981); Eugene v. Alief
Indep. Sch. Dist., 65 F.3d 1299, 1303-304, 1306 (5th Cir. 1995);
Petrus v. Bowen, 833 F.2d 581, 582-583 (5th Cir. 1987).
“When justice so requires,” we remand to the district court
so the district court can decide if an amendment to a complaint
should be allowed. See FED. R. CIV. P. 15(a); Marrero v. City of
Hialeah, 625 F.2d 499, 511-512 (5th Cir. 1980) (citing Bryan v.
Austin, 354 U.S. 933 (1957) (per curiam)). This accords with our
general policy of favoring liberal amendment. See, e.g., Lowrey
v. Texas A & M Univ. Sys., 117 F.3d 242, 245 (5th Cir. 1997). In
Marrero, even though we were inclined to find the district court
judgment to dismiss for failure to state a claim as unaffected by
a decision issued pending appeal, we granted remand so the
district court and parties could have an opportunity to consider
the change in the law and its effect on the claims at issue. 625
F.2d at 511-512. While the change in the state of the law was
4
more dramatic in Marrero, see also Vicknair v. Formosa Plastics
Corp. Louisiana, 98 F.3d 837, 839 (5th Cir. 1996), I believe the
same rationale would apply to the facts in this case.
III.
I would exercise our discretion in the interests of justice
to remand this case for the limited purpose of having the District
Court entertain plaintiffs’ motion to amend. Accordingly, I
dissent.
5