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In Wilson v. Brush Wellman, Inc. (2004), 103 Ohio St.3d 538, 817 N.E.2d 59, the Supreme Court of Ohio recently held that class certification was improper in an action seeking to establish a medical-monitoring fund for workers who were exposed to toxic fumes at an industrial plant near Elmore, Ohio. The court held that the complaint primarily sought damages, rather than injunctive relief as required by Civil Rule 23(B)(2), and as a matter of first impression for the court, the class certification failed for lack of cohesiveness.

Background

Plaintiffs were members of unions within the Northwestern Ohio Building and Construction Trades Council. The plaintiffs were each employed by contractors at the defendant Brush Wellman’s Elmore plant at various times spanning five decades. The Elmore plant produced beryllium alloy for use in industrial applications. Plaintiffs alleged that they were exposed to beryllium dust and fumes that were generated by manufacturing the alloy. Beryllium exposure can cause a lung ailment called chronic beryllium disease and other ailments. Like asbestosis, some individuals may never show symptoms or develop any disease, while others can have serious impairments or even die as a result of their exposure.

On February 14, 2000, John Wilson and six other union members filed a claim against defendant Brush Wellman, Inc., alleging negligence, strict liability in tort, statutory product liability, and engagement in ultra-hazardous activities. Specifically within the negligence claim, plaintiffs alleged that Brush Wellman had failed to properly control and contain the beryllium, failed to train plaintiffs and proposed class members, failed to provide a safe place of employment, failed to monitor working conditions, and failed to warn plaintiffs and proposed class members of the dangers of beryllium. The complaint sought a medical-screening program to detect beryllium sensitivity as well as punitive damages.

Plaintiffs moved the trial court to certify a class that would include all Northwestern Ohio Building and Construction Trades Council union members who worked at the Elmore plant from 1953 through December 31, 1999. After a hearing, the trial court held that although the proposed class had met the prerequisites for certification under Civil Rule 23(A), it failed to satisfy any of the requirements to maintain a class action under Civil Rule 23(B). The court examined Rules 23(B)(1)(a), 23(B)(2) and 23(B)(3), finding that plaintiffs’ claims failed each. Under a class action, separate actions would create a risk of “inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class.” In reaching its decision, the court stated: “Subsection (B)(1)(a) does not lend itself to mass tort claims, such as the one before us. Pursuant to this subsection, certification is permissible if separate actions could lead to incompatible standards of conduct.” The court concluded that differing standards of conduct were not likely to appear in the case if separate actions were pursued.

The trial court held that Civil Rule 23(B)(2) certification was inappropriate because said subsection did not apply when a class is primarily seeking damages. Rule 23(B)(2) applies when “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.”

The trial court held that medical-monitoring damages, in addition to the punitive damages sought, do not constitute injunctive relief. The trial court went on to recognize that Rule 23(B)(2) requires a showing that Brush Wellman acted or refused to act with respect to the class as a whole, commonly referred to as the cohesiveness requirement. The court found that there were disparate factual circumstances in the class that precluded certification. 

Plaintiffs also failed to satisfy Civil Rule 23(B)(3), according to the trial court. Under 23(B)(3) an action may be maintained as a class action if “the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” The court held that “individual questions in this case not only outnumber, but most importantly, outweigh any questions that are common to the class.” Having determined that plaintiffs failed to meet the requirements of Civil Rule 23(B), the court denied class certification.

The plaintiffs appealed the denial of class certification to the court of appeals, which considered certification under Civil Rule 23(B)(2) exclusively and held that “the trial court erred by finding this criteri[on] absent.” The court reasoned that because plaintiffs primarily sought medical surveillance and screening, which it determined were injunctive in nature, certification under Civ.R. 23(B)(2) was appropriate. The appellate court held that the request for damages was incidental to the request for medical monitoring and that the trial court failed to examine the cohesiveness of the suggested class. The defendant appealed the appellate court’s determination.

The Supreme Court’s Analysis

The issue before the Supreme Court of Ohio was whether the appellate court properly reversed the trial court’s finding that the requirements of Civil Rule 23(B)(2) were not met. The supreme court pointed out that Rule 23(B)(2) entails two requirements: (1) the action must seek primarily injunctive relief, and (2) the class must be cohesive. The first step in the court’s inquiry was to determine whether the relief sought by the plaintiffs—medical monitoring—was injunctive or compensatory in nature. Because Ohio case law provided little guidance on this question, the court looked to the federal courts, which had split on this issue. The court borrowed the reasoning of the Federal District Court for the Southern District of Ohio, which demarcated injunctive versus compensatory relief as follows:

Relief in the form of medical monitoring may be by a number of means. First, a court may simply order a defendant to pay a plaintiff a certain sum of money. The plaintiff may or may not choose to use that money to have his medical condition monitored. Second, a court may order the defendants to pay the plaintiffs’ medical expenses directly so that a plaintiff may be monitored by the physician of his choice. Neither of these forms of relief constitute[s] injunctive relief as required by rule 23(b)(2). However, a court may also establish an elaborate medical monitoring program of its own, managed by court-appointed, court-supervised trustees, pursuant to which a plaintiff is monitored by particular physicians and the medical data produced is utilized for group studies. In this situation, a defendant, of course, would finance the program as well as being required by the court to address issues as they develop during program administration. Under these circumstances, the relief constitutes injunctive relief as required by rule 23(b)(2). Day v. NLO, Inc. (S.D.Ohio 1992), 144 F.R.D. 330, at 335- 336.

Based on the reasoning of Day, the court held that court supervision and participation in medical-monitoring cases was a logical and sound basis on which to determine whether an action is injunctive, and has the added advantage of being a bright-line test, which could be readily and consistently applied. The court noted that the plaintiffs sought an order for Brush Wellman to “pay for a reasonable medical surveillance and screening program,” punitive damages in excess of $25,000, and “[i]nterest, costs, attorney fees and such other and further relief as the Court may deem just and proper.” Based on the foregoing, the court found that the trial court did not abuse its discretion by concluding that plaintiffs’ complaint primarily sought damages. The court noted that a request for court supervision could be easily added by an amended complaint. Even with an amended complaint, however, the court found plaintiffs’ lack of cohesiveness to be decisive.

According to the court, plaintiffs’ class certification under Civil Rule 23(B)(2) failed for lack of cohesiveness. To construe this requirement, the court looked to the similar “predominance” test under Civil Rule 23(B)(3), which also requires a certain level of cohesion. Under 23(B)(3), an action may be maintained as a class action if the court finds that the questions of law or fact common to the members of the class predominate over questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The court cited two federal cases for guidance in construing 23(B)(3): Amchem Products, Inc. v. Windsor (1997), 521 U.S. 591 and Barnes v. Am. Tobacco Co. (C.A.3, 1998), 161 F.3d 127, 142-143.

The Amchem plaintiffs sought certification for a class of thousands seeking recovery for asbestos-related claims. The United States Supreme Court heeded a “call for caution when individual stakes are high and disparities among class members great…. [A] certification cannot be upheld, [where] it rests on a conception of Rule 23(b)(3)’s predominance requirement irreconcilable with the Rule’s design.” Id. at 625. The Supreme Court cited as impediments to the Amchem class’s cohesiveness: 1) the large number of individuals, 2) their varying medical expenses, 3) the disparate claims of those currently injured individuals versus those who had not yet suffered injury, 4) the plaintiffs’ smoking histories, and 5) family situations. Id. at 623-625.

In Barnes, the court extended the cohesiveness requirement beyond a Rule 23(b)(3) class to a Rule 23(b)(2) class “because in a (b)(2) action, unnamed members are bound by the action without the opportunity to opt out.” The court’s concern was that unnamed members with valid individual claims might be prejudiced by a negative judgment in a class action. In addition, the suit could become unmanageable if significant individual issues were to arise consistently.

In applying the holdings of these cases to the findings of the trial court, the Ohio Supreme Court held that the trial court had found sufficient disparate factual circumstances to preclude a Rule 23(B)(2) class action. The court stated that “[a]lthough the court did not specifically address those disparate circumstances in the same breath as examining Civ.R. 23(B)(2), the court did go into much detail in its Civ.R. 23(B)(3) predominance analysis, citing multiple individual questions of fact requiring examination for different plaintiffs within the proposed class. Individual questions identified by the trial court include whether Brush Wellman owed a duty, whether there was a breach of that duty, whether the statute-of-limitations defense applies, and questions of contributory negligence. The members of the proposed class span 46 years, multiple contractors, and multiple locations within the plant, and are estimated by the parties to number between 4,000 and 7,000.”

The court held that ...[g]iven the depth of the trial court’s predominance analysis and its reasoned conclusion that individual questions outweigh questions common to the class, we cannot hold that the trial court abused its discretion. Rather than addressing the proposed class’s cohesiveness, the appellate court summarily determined that the class could be certified under Civ.R. 23(B)(2). Because we have today determined that the trial court did not abuse its discretion in determining that the proposed class in this suit fails the cohesiveness requirement, we reverse the appellate court judgment and reinstate the trial court’s order denying class certification.

The conclusion of Wilson v. Brush Wellman, Inc. indicates that state courts such as Ohio are attempting to limit class action litigation by narrowing certification of such claims under Civil Rule 23(B)(2) to those actions that are truly injunctive in nature and where the significant questions in the case affect individual class members in a cohesive rather than a disparate fashion.

* William T. Kamb is an attorney practicing in Columbus, OH.

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