Paz v. Brush Engineered Materials, Inc.

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
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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

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 ________________________________________________

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

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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.

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 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

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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.

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