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Gibbs v. E.I. DuPont de Nemours & Co.

ELR Citation: 25 ELR 20926
Nos. No. 93-CV-497C, 876 F. Supp. 475/(W.D.N.Y., 02/06/1995)

The court refuses to dismiss a tort-law claim that a tire manufacturer's former employees' brought against chemical companies that allegedly sold toxic chemical compounds to the manufacturer without adequately warning that exposure to the chemicals may cause bladder cancer. The court first holds that the employees have sufficiently critiqued their former employer's existing bladder cancer monitoring program to show that a factual dispute exists regarding its adequacy. Therefore, summary judgment on the defendants' argument that the employer's existing monitoring program renders the employees' claims moot is not appropriate at this stage. Applying New York case law, the court next holds that the New York Court of Appeals would embrace a medical monitoring claim in the absence of present injury, even though New York courts have not conclusively ruled on such a claim's availability. The court believes that a New York court's decision in Askey v. Occidental, 102 A.D.2d 130 (4th Dept. 1984), represents a growing national acceptance of such a claim. The Askey court recognized in dictum that plaintiffs could recover future medical monitoring expenses from exposure to toxic chemicals if they could prove their exposure created an increased risk of future harm and that they reasonably anticipated that they would incur medical monitoring expenses as a result. The court holds that the individual employees need not meet the jurisdictional amount in controversy, because they seek injunctive relief in the form of a common, court-supervised fund that would provide for a medical monitoring program with a value in excess of $50,000. The court further holds that the employees have not abandoned their motion for class certification under Western District of New York Local Rule 15(d) by failing to file the motion within 120 days of filing the complaint. Rule 15(d) became effective nearly three months after the employees filed their complaint, and applying the rule to preexisting complaints would immediately and unfairly foreclose any plaintiffs whose complaints were filed more than 120 days before the rule's effective starting date from moving for class certification.

The court holds that it might appropriately certify the former employees as a class under Fed. R. Civ. P. 23(b)(2). The employees seek as a remedy a court-administered fund that goes beyond the payment of individual monitoring costs and establishes pooled resources for the early detection and advances in treatment of the disease. The court holds that this remedy is injunctive in nature rather than predominantly money damages. The court notes, however, that the chemical companies raised complex arguments on whether the employees can meet Rule 23(a)'s threshold requirements for maintaining a Rule 23(b)(2) class action, and that the employees' counsel had not had the opportunity to respond to those problems. Accordingly, the court directs the parties to undertake supplemental briefing and discovery on Rule 23's requirements.

Counsel for Plaintiffs
Steven H. Wodka
21 Rosslyn Crt., Little Silver NJ 07739
(908) 530-2815

Jon N. Lipsitz
1066 Ellicott Sq. Bldg., Buffalo NY 14203
(716) 849-0701

Counsel for Defendants
Paul F. Jones
Phillips, Lytle, Hitchcock, Blaine & Huber
3400 Marine Midland Ctr., Buffalo NY 14203
(716) 847-8400