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For nearly 40 years, Lockheed Martin Corp. and several other companies dumped rocket fuel and other possibly toxic substances into the ground near Redlands, potentially putting as many as 100,000 people at risk of contracting cancer and other serious illnesses. On Tuesday, lawyers for a handful of those people went before the California Supreme Court and asked for the authorization to seek a class action for medical monitoring to determine how much exposure, if any, occurred. They estimate that such a fund would cost Lockheed $30 million if even as few as 50,000 people were tested. The court’s justices were sympathetic to the request, but seemed reluctant, nonetheless, to allow class certification for medical monitoring under the circumstances. “It seems to me someone should have recourse for negligence,” Justice Kathryn Mickle Werdegar told Lockheed’s lawyer. “But I just don’t know right now how you’d do that.” San Bernardino County Superior Court Judge Ben Kayashima had authorized a medical monitoring class action, but the Fourth District Court of Appeal overturned him two years ago, saying there were not enough common issues among the members of the proposed class. “The trier of fact would be confronted with a multitude of factual questions which can only be resolved by individual proof given the number of chemicals involved, individual variations in exposure levels, the many different medical conditions and diseases involved, and the vast number of individual health backgrounds,” the Fourth District held. “Individual issues clearly predominate, making class certification inappropriate.” Justice Joyce Kennard took up that banner Tuesday, saying the individual factors of the possibly exposed residents are the “crux of the matter” because they could make the case “unmanageable” as a class action. “Class certification is rarely the avenue for bringing the sort of medical monitoring sought here,” she said. Werdegar asked plaintiff’s lawyer Howard Miller, of Los Angeles, exactly what diseases should be included in monitoring. “Every conceivable disease?” she queried. The Fourth District had denied class certification based on the California Supreme Court’s 1993 ruling in Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965, which said medical monitoring should be considered reasonable in a toxic tort only if five factors — including the extent of the plaintiff’s exposure to a chemical — are met. Justice Carlos Moreno questioned whether even that one factor could be met in a situation with as varied conditions as the one involving Lockheed. Justice Janice Rogers Brown told Miller she felt that Potter went beyond the five factors. “It seems to me,” she said, “that Potter is focusing on very specific individual exposure.” Miller had argued earlier that he would agree class action would be inappropriate and unmanageable if the plaintiffs were seeking damages for liability. “The key here is the management of the fund,” he said. “We are asking that the defendant pay for the medical monitoring for those who show up. This is a manageable situation.” Chief Justice Ronald George offered Miller some hope by asking him and Lockheed’s lawyer, Robert Warren, of Los Angeles, whether or not a trial court judge — faced with all the facts — isn’t in the best position to determine whether a class is manageable. Afterward Miller declined to say how he thought the arguments went. “The court has obvious concerns,” he said, “so we’ll just have to wait and see.” The case is Lockheed Martin Corp. v. Superior Court (Carrillo), S088458. The court has 90 days to rule.

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