[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-12243 April 18, 2007
_____________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 04-00606 CV-RWS-1
NEAL PARKER,
WILBERT CARLTON,
STEPHEN KING,
RAY BURNS,
DEBORAH WATKINS,
LEONARD PONDER,
BARBARA KING,
PATRICIA BURNS,
All individually and as Representative Plaintiffs
on behalf of all other similarly situated,
Plaintiffs-Appellants,
versus
BRUSH WELLMAN, INC.
SCHMIEDE MACHINE AND TOOL CORPORATION,
THYSSENKRUPP MATERIALS NA, INC.,
d.b.a. Copper and Brass Sales,
ALCOA, INC.,
MCCANN AEROSPACE MACHINING CORPORATION,
Defendants-Appellees,
AXSYS TECHNOLOGIES, et al.,
Defendants.
_________________________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________________________
(April 18, 2007)
Before EDMONDSON, Chief Judge, BIRCH and WILSON, Circuit Judges.
PER CURIAM:
Plaintiffs-Appellants (“Plaintiffs”), a group of 120 current and former
employees of Defendant-Appellee Lockheed Martin (“Lockheed”) and their
families, appeal from the district court’s dismissal of their suit against Defendants-
Appellees Brush Wellman, Inc., Schmiede Machine and Tool Corporation,
Thyssenkrupp Materials NA, Inc. (d/b/a Copper and Brass Sales), Alcoa, Inc., and
McCann Aerospace Machining Corporation (collectively, “Defendants”), in which
Plaintiffs sought to recover damages for personal injuries allegedly sustained due
to Defendants’ manufacture, use, and discharge of beryllium, a hazardous
substance. We affirm the district court’s dismissal of Plaintiffs’ claim for a
medical monitoring fund and of those claims based on allegations of “subclinical”
injury. But, because we conclude that the district court prematurely granted
Defendants judgment on Plaintiffs’ claims of beryllium sensitization, we vacate
that judgment and remand for further proceedings.
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I. BACKGROUND
Plaintiffs filed this putative class action in a state court. The Complaint
alleges that Defendants are involved in the manufacture, use, or discharge, or all of
these, of beryllium. Plaintiffs contend that they were exposed to respirable forms
of beryllium from certain products used at Lockheed’s Marietta, Georgia, facility.
The Complaint alleges that Defendants either knew or should have known that
beryllium can cause various adverse health consequences and that Plaintiffs’
activities at Lockheed would result in harmful exposure to the substance.
Plaintiffs assert that, as a result of their exposure, they “have suffered and
will suffer in the future personal injuries in the form of sub-clinical, cellular, and
sub-cellular damage and some have suffered from acute and chronic lung disease,
dermatologic disease, and chronic beryllium disease (“CBD”).” Plaintiffs also
contend that they “have been placed at substantially increased risk of catastrophic
latent disease, such as chronic beryllium disease and cancer,” and “have suffered
and will suffer in the future from fear, anxiety, and emotional upset” because of
their personal injuries and increased risk of disease. The Complaint includes
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claims for medical monitoring, strict liability, negligence, fraudulent concealment,
civil conspiracy, punitive damages, and attorneys’ fees.
Lockheed removed the case to federal court pursuant to 28 U.S.C. §
1442(a)(1). Defendants filed various motions to dismiss, motions for judgment on
the pleadings, and motions for a more definite statement. The district court ruled
that those claims relying on “sub-clinical, cellular, or sub-cellular” injuries were
not cognizable under Georgia law, concluding that Georgia only allows tort
recovery for injuries with “manifest physiological symptoms.” The district court
noted that it would enter an order dismissing those “subclinical” claims after
Plaintiffs filed an amended pleading identifying those plaintiffs who had sustained
“actionable tort injuries.” The court similarly granted Defendants’ motions to
dismiss “these ‘subclinical’ Plaintiffs’ claims for increased risk and negligent
infliction of emotional distress” and for medical monitoring.
Plaintiffs then filed a Substituted Amended Complaint (“Amended
Complaint”), in which they identified five persons “whose injuries have
manifested themselves such that they have been detected by physical examination
and/or laboratory test.” Plaintiffs also repeated their allegation that all Plaintiffs
had “sustained subclinical, cellular, and subcellular effects that constitute physical
injuries.” In response, Defendants moved to enforce the district court’s earlier
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order, arguing that the five specified plaintiffs alleged only beryllium
sensitization, which is not an actionable injury even when detected by clinical
tests. Because both parties submitted expert affidavits, the district court, with the
consent of the parties, treated Defendants’ motion as a motion for summary
judgment. The court granted Defendants’ motion, concluding that, even accepting
the Plaintiffs’ expert’s opinion, beryllium sensitization constituted no actionable
injury under Georgia law. Because Plaintiffs had put forth no other claims, the
court dismissed the case.
II. STANDARD OF REVIEW
Defendants argue that the district court dismissed only the medical
monitoring claim in Count I before the summary judgment stage, but the district
court’s opinion specifically stated that the court was granting Defendants’ motion
to dismiss on the “subclinical” claims. The later order therefore only dealt with
the claims of the five plaintiffs who further alleged beryllium sensitization. We
review the rulings in the first order under Fed. R. Civ. P. 12(b)(6), which governs
motions to dismiss for failure to state a claim, and review the ruling in the second
order under Fed. R. Civ. P. 56, which applies to motions for summary judgment.
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We review a district court’s dismissal of a claim under Rule 12 de novo,
accepting the well-pleaded factual allegations in the complaint as true and
construing them in the light most favorable to the plaintiff. Aldana v. Del Monte
Fresh Produce, N.A., Inc., 416 F.3d 1242, 1246 (11th Cir. 2005). A dispositive
Rule 12 motion may be granted only if “it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would entitle him to relief.”
Id.
We also review the district court’s grant of summary judgment de novo,
viewing the record and drawing all reasonable inferences in the light most
favorable to the nonmoving party. Hall v. United Ins. Co. of America, 367 F.3d
1255, 1262 (11th Cir. 2004). Summary judgment is proper only if no genuine
issue of material fact exists and the movant is entitled to judgment as a matter of
law. Id.
The parties acknowledge that the legal questions presented in this case are
governed by Georgia law. “In rendering a decision based on state substantive law,
[we] must decide the case the way it appears the state's highest court would.
Where the state's highest court has not spoken to an issue, [we] must adhere to the
decisions of the state's intermediate appellate courts absent some persuasive
indication that the state's highest court would decide the issue otherwise.”
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Chepstow Ltd. v. Hunt, 381 F.3d 1077, 1080 (11th Cir. 2004) (alterations in
original) (internal quotation marks and citation omitted).
III. DISCUSSION
A. Plaintiff’s “Subclinical” Injury Claims
Plaintiffs contend that the district court erred in concluding, as a matter of
law, that allegations of subclinical damage could not support an award of damages
for personal injury and emotional distress. Plaintiffs argue that, under Georgia
law, the question of whether the alleged subclinical damage constitute a physical
injury is one of fact that cannot be resolved on the pleadings. We disagree.
To recover for personal injuries under Georgia law, a plaintiff must show
that he has suffered “injury to life or limb or damage to other property.” Pickren
v. Pickren, 593 S.E.2d 387, 388 (Ga. Ct. App. 2004). Georgia similarly allows
recovery of damages for emotional distress upon a showing of “(1) a physical
impact to the plaintiff; (2) the physical impact cause[d] physical injury to the
plaintiff; and (3) the physical injury to the plaintiff cause[d] the plaintiff’s mental
suffering or emotional distress.” Lee v. State Farm Mut. Ins. Co., 533 S.E.2d 82,
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85 (Ga. 2000). Thus, to the extent that Plaintiffs’ allegations of subclinical
damage are insufficient to support a claim for physical injury, they are also
insufficient to support a claim for emotional distress.1
In the leading Georgia case dealing with exposure to a toxic substance, the
Court of Appeals indicated that a personal injury plaintiff must present evidence
of “actual disease, pain or impairment of some kind.” Boyd v. Orkin
Exterminating Co., Inc., 381 S.E.2d 295, 298 (Ga. Ct. App. 1989), overruled on
other grounds, Hanna v. McWilliams, 446 S.E.2d 741 (Ga. Ct. App. 1994). In
Boyd, homeowners sued a pest control company for negligently applying
insecticide inside their home, which resulted in the exposure of themselves and
their children to harmful levels of toxic substance. Boyd, 381 S.E.2d at 296. At
trial, the plaintiffs presented evidence demonstrating the presence of elevated
levels of toxin metabolites in their children’s blood. They also adduced medical
expert testimony stating that the elevated levels, in themselves, constituted an
“injury” and that the children would require periodic monitoring to determine
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Plaintiffs’ reliance on the HIV-exposure case Johnson v. American Nat’l Red Cross, 578 S.E.2d
106 (Ga. 2003), in support of their emotional distress claim is misplaced. Plaintiffs argue that they
have stated a claim for fear of future disease because they have alleged “actual” exposure to a
disease-causing agent and a “channel of communication” through which exposure took place. But
Johnson did not address whether a the plaintiff had sufficient physical injury to recover emotional
distress damages; the court merely concluded that a failure to show actual exposure was fatal to the
plaintiff’s claim. And the earlier case of Russaw v. Martin, 472 S.E. 2d 508, 510 (Ga. Ct. App.
1996) – on which Johnson relied, see Johnson, 578 S.E.2d at 109-10 -- indicates that even those
suing for emotional distress due to HIV exposure must allege and prove a physical injury.
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whether they were developing health problems associated with the toxic exposure.
Id. But, the appellate court upheld the directed verdict for the defendant,
concluding that “there was no evidence that the appellants had sustained any
specific injury.” Id. at 297-98.
Here, the district court read Boyd to “apparent[ly] reject[] subclinical effects
as actionable ‘injuries.’” We agree. According to the Boyd appellate opinion, the
trial evidence in Boyd consisted of medical testimony that the presence of the
elevated levels of toxin metabolites, by itself, was an injury; the medical testimony
did not show that those metabolites “had caused or would eventually cause actual
disease, pain or impairment.” Id. at 298. Likewise, Plaintiffs here have alleged
that the subclinical and cellular damage from their exposure, by itself, is an injury.
But Plaintiffs have not alleged that this subclinical damage has resulted in an
identifiable physical disease, illness, or impairing symptoms. And to the extent
that Plaintiffs allege that their subclinical condition will eventually cause – or will
at least increase their risk of developing – future disease, pain, or impairment,
Plaintiffs concede that they do not seek current compensation for this anticipated
harm.2 Instead, Plaintiffs rest their personal injury claims on the contention that
2
In this manner, Plaintiffs are similarly situated to the claimants in Boyd, who introduced
evidence that the elevated toxin levels, while not impairing the children’s present health, increased
their risk of developing cancer. Boyd, 381 S.E.2d at 298. But even if Boyd can be read to allow
recovery where the subclinical effects of exposure are shown to increase – to a “reasonable degree
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their allegations of subclinical and cellular damage are sufficient to allege a
current physical injury under Georgia law; because we reject this argument,
Plaintiffs’ claims for personal injury and emotional distress must fail.3
And because Plaintiffs’ allegations of subclincial damage are insufficient to
state a current physical injury, Plaintiffs are not entitled to recover the
“quantifiable costs of periodic medical examinations” as future medical expenses.
See Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492, 1504 (11th Cir. 1985)
of medical certainty” -- the risk of manifest disease or impairment, see id. at 298, Plaintiffs concede
that they do not seek recovery for this “enhanced risk.”
3
We are aware that some courts have allowed tort claims based on allegations of subclinical or
cellular “injury” in exposure cases, in some cases treating such an allegation as one of latent disease.
See, e.g., Weirlein v. United States, 746 F.Supp. 887, 901 (D. Minn. 1990), vacated in part on other
grounds, 793 F.Supp. 898 (D. Minn. 1992); Barth v. Firestone Tire & Rubber Co., 661 F.Supp. 193,
196 (N.D. Cal. 1987); Brafford v. Susquehanna Corp., 586 F.Supp. 14, 17-19 (D. Colo. 1984).
But we think that, in Georgia, the more persuasive position is that an allegation of subclinical
damage does not satisfy Boyd’s requirement of an actual “disease” or “impairment,” even if it is a
predictor of future disease. See, e.g., Rainer v. Union Carbide Corp., 402 F.3d 608, 618-22 (6th Cir.
2005) (concluding that, under Kentucky law, allegations of “subcellular damage” were insufficient
to satisfy the requirement of “bodily injury” for recovery under the Price-Anderson Act where
plaintiffs lacked “present physical illness” but introduced evidence that “chromosomal damage is
directly linked with an increased likelihood of cancer”); Schweitzer v. Consol. Rail Corp., 758 F.2d
936, 942 (3rd. Cir. 1985) (“We believe . . . that subclinical injury resulting from exposure to asbestos
is insufficient to constitute actual loss or damage to a plaintiff’s interest required to sustain a cause
of action under generally applicable principles of tort law.”); Laswell v. Brown, 683 F.2d 261, 269
(8th Cir. 1982) (concluding that allegations of exposure to an “unusually high risk of disease in
genetically passed cellular” damage was insufficient to state a claim where the complaint was
“conspicuously void of . . . allegations that the children have sustained . . . damage other than the
exposure to a higher risk of disease and cellular damage” (emphasis added)); cf. Eagle-Picher Indus.,
Inc. v. Liberty Mut. Ins. Co., 682 F.2d 12, 19-20 (1st Cir. 1982) (examining various definitions of
“injury” and “disease” and concluding that insurance policies could not be construed to cover
subclinical changes that did not cause impairment “until, if ever, they accumulate to become
clinically evidence or manifest”).
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(allowing recovery of future medical expenses that are reasonably certain to be
incurred as a result of plaintiff’s current physical injury). Plaintiffs have failed to
point us to any Georgia authority that allows recovery of medical monitoring costs
in the absence of a current physical injury, and Boyd suggests that Georgia would
not recognize such a claim.4 See Boyd, 381 S.E.2d at 298 (affirming partial
summary judgment to defendants where plaintiffs “merely produced medical
testimony that the children would require monitoring in the future to determine
whether they developed health problems due to their exposure to the chemicals”).
The district court therefore correctly dismissed Plaintiffs’ claim for a medical
monitoring fund in Count I of the Complaint.
B. Plaintiffs’ Beryllium Sensitization Claims
Plaintiffs also contend that the district court improperly granted summary
judgment to Defendants based on the court’s conclusion that beryllium
sensitization – a clinically-manifest condition -- constituted no actionable injury
4
Whether courts should recognize a medical monitoring cause of action in the absence of a
present physical illness or impairment is not well-settled nationwide. See, e.g., Paz v. Brush
Engineered Materials, Inc., 949 So.2d 1, 6-7 (Miss. 2007) (collecting cases from different
jurisdictions and then declining to recognize medical monitoring actions absent allegations of present
physical injury under Mississippi law, which “requires the traditional elements of proof in a tort
action”).
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under Georgia law. Plaintiffs argue that the medical expert affidavits established
that a material issue of fact exists on whether beryllium sensitization is a current
“disease, pain or impairment.” We agree.
Plaintiffs’ expert, Dr. Maier, opined that beryllium sensitization is “an
abnormal immune response” that is “comparable to an allergy” and “an important
precursor to [CBD].” Dr. Maier indicated that approximately six to eight percent
per year of sensitized persons develop CBD and stated that “[i]t is likely that the
majority of individuals with sensitization will eventually develop CBD.” She also
compared sensitization with HIV and pleural plaques, other immunological
conditions that have a “high risk” of developing into more serious diseases. Dr.
Maier concluded that “it is clear that beryllium sensitization is a marker of injury
to beryllium.”
In contrast, while Defendants’ expert, Dr. Repsher, agreed that beryllium
sensitization is similar to an allergy, he stated that the condition is a “part of a
normally functioning and healthy immune system” that does not result in any
“structural or functional changes” in the body. Instead, a sensitized person is
merely “capable of having a harmful, allergic-type reaction to beryllium in the
future.” He also opined that the condition “cause[s] no impairment or harm of any
kind” and that a sensitized person may never develop CBD. He disagreed with Dr.
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Maier’s analogy to pleural plaques and also stated that sensitization appears to be
reversible, as some people who test positively for the condition later test negative.
In sum, the parties’ experts disagree on whether the beryllium sensitization
is a current disease or impairment and on the probability that the condition will
later develop into CBD. These issues are questions of fact that should be
answered by a jury, and summary judgment was therefore improper.
IV. CONCLUSION
We conclude that Plaintiffs’ allegations of injury in the form of subcellular,
subclinical, and cellular harm are insufficient to survive Defendants’ motions to
dismiss on their claims for damages for personal injury and emotional distress.
We also decide that the district court correctly determined that Georgia law does
not currently allow for recovery of medical monitoring costs. But we conclude
that Plaintiffs’ expert testimony creates a genuine dispute of material fact on
whether beryllium sensitization is a current physical impairment; summary
judgment was therefore inappropriate on the claims of the five plaintiffs identified
as being sensitized. For these reasons, the district court’s rulings are affirmed in
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part and vacated in part; and the case is remanded for further proceedings
consistent with this opinion.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
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