In a decision emphasizing the continuing viability of medical-monitoring class actions, the Missouri Court of Appeals clarified plaintiffs’ burden of proof at the class-certification stage by holding that the trial court may not consider expert testimony or other evidence that contradicts the plaintiffs’ theory of the case.
In Elsea v. U.S. Engineering Company, No. 77687 (Mo. App. W.D. Mar. 17, 2015), the plaintiffs sought certification under Mo. Rule 52.08(b)(3) (the state-law counterpart to Rule 23(b)(3)) of a class of individuals who had spent two consecutive weeks or eighty hours in the Jackson County Courthouse after the defendants had performed a retrofit of the building. According to the plaintiffs’ allegations and experts, asbestos dust was blown and tracked through the courthouse during the retrofit, putting putative class members at a significantly increased risk for latent disease. The plaintiffs sought recovery of compensatory damages for the expense of necessary prospective medical monitoring.
Following a four-day evidentiary hearing, the trial court denied the plaintiffs’ motion for class certification due to a number of individualized issues relating to exposure, causation, and the medical necessity of a monitoring regime for each class member. After accepting interlocutory review, the Court of Appeals reversed. Significantly, the court held that the trial court undertook improper findings of fact and that it should have accepted the allegations and evidence presented by the plaintiffs as true, citing its previous holdings inHope v. Nissan N. Am., Inc., 353 S.W.3d 68 (Mo. App. W.D. 2011) and Hale v. Wal-Mart Stores, Inc., 231 S.W.3d 215 (Mo. App. W.D. 2007). The court then went on to emphasize that “the common and predominant fact of exposure” warranted certification and that “individual factors are not relevant in a medical monitoring claim.” It further rejected the defendants’ arguments regarding the threshold level of exposure that would trigger the need for medical monitoring, reiterating that the plaintiffs’ allegations must be taken as true at the class-certification stage and any factual issue should have been reserved for the jury at the class trial.
In contrast to Elsea, the United States Supreme Court’s recent decisions in Wal-Mart Stores, Inc. v. Dukes and Comcast v. Behrend underscores putative class plaintiffs’ evidentiary burden under Rule 23 and the unavoidable overlap between merits and class issues during certification; the Elsea opinion also creates an uneasy tension with the court’s previous statements that “federal interpretations of Rule 23 are relevant in interpreting Rule 52.08.” Craft v. Philip Morris Cos., 190 S.W.3d 368, 376 (Mo. App. 2005). To the extent the Missouri Supreme Court seeks to bring Rule 52.08 more in line with the federal standard, we may well hear from it soon.