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The Pennsylvania Commonwealth Court has upheld a Chester County, Pa. judge’s decision to grant class certification on a medical monitoring claim to residents and workers who allege they were exposed to above-normal levels of polychlorinated biphenyls, or PCBs, as a result of living near or working at the Paoli Railroad Yard. “Defendants’ assertions to the contrary, it is apparent that plaintiffs’ claims arise from the same course of conduct and that these claims can be efficiently and economically proven in one cause of action,” Senior Judge Joseph F. McCloskey wrote for the unanimous three-judge panel in Foust v. Southeastern Pennsylvania Transportation Authority. “While individual issues may arise, including length and extent of exposure, age, gender, medical history, family history, lifestyle, preexisting conditions, intervening factors and the like, these items will be addressed when and if a medical monitoring program is created.” The case began as three class action lawsuits filed in federal court, but the U.S. District Court for the Eastern District ultimately denied class certification. Then 290 people filed individual claims in Philadelphia Common Pleas Court. The cases were eventually transferred to Chester County Common Pleas Court. The individual suits sought recovery for personal injuries, medical monitoring, emotional distress, real property damage and punitive damages. In 1993, plaintiffs asked the court to certify the class for medical monitoring, emotional distress, property damage and punitive damage claims. They did not seek class certification for the personal injury claims. In July 1993, the common pleas court granted leave to amend to add the class allegations and held a class certification hearing. In June 1999, the trial court granted the motion for class certification as to the medical monitoring claims, but denied class certification on the three other claims. The class includes anyone who since April 1, 1976, either worked at the Paoli Railroad Yard or lived in an area immediately to the north of the rail yard. Defendants requested an interlocutory appeal, which the trial court denied. Defendants Monsanto Co., General Electric Co. and CBS Corp. petitioned the Commonwealth Court for review, which was granted. On appeal, the defendants argued that the trial court’s decision certifying the class added new parties to the litigation after the limitation period had expired. They said there were no class claims in the initial lawsuits filed in 1987 and 1988. The court determined that the defendants did not show they were prejudiced by the judge’s amendment. “Prior to the alleged expiration of the statute of limitations, defendants had notice that they would be defending suits for, inter alia, medical monitoring,” McCloskey wrote. “Regardless of the amendment, the facts, legal theories and defenses remained the same. Further, the addition of extra plaintiffs did not result in undue surprise on defendants or, for that matter, add any new causes of action.” In order for a group of similarly situated plaintiffs to be certified as a class, they must show that: � “The class is so numerous that joinder of all members is impracticable; � “There are questions of law or fact common to the class; � “The claims or defenses of the representative parties are typical of the claims or defenses of the class; � “The representative parties will fairly and adequately assert and protect the interests of the class under the criteria set forth in Rule 1709; and � “A class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708.” The defendants argued that the plaintiffs failed to meet the numerosity requirement, show that the class is dominated by common issues and demonstrate that the class action suit is the most efficient method of litigation. The court noted that the state Supreme Court in Redland Soccer Club Inc. v. Dept. of the Army recognized a cause of action for medical monitoring and ruled that in order to prove a cause of action, plaintiffs must show: � Exposure greater than normal background level; � To a proven hazardous substance; � Caused by the defendant’s negligence; � As a proximate result of the exposure, plaintiff has a significantly increased risk of contracting a serious latent disease; � A monitoring procedure exists that makes the early detection of the disease possible; � The prescribed monitoring regime is different from that normally recommended in the absence of exposure; and � The prescribed monitoring regime is reasonably necessary according to contemporary scientific principles. After setting the parameters for analysis, the middle appeals court addressed each of the defendants claims separately. With regard to numerosity, the court said if the class was not certified, the individual suits “would drain the trial court’s resources.” “In its opinion, the trial court emphasized that the class in this case is well defined and numerous,” McCloskey wrote. “By utilizing the class action, the trial court opined, all of these claims could be proven or disproven in a single proceeding and relief to each member properly formulated. We agree.” In arguing the commonality requirement, the defendants first asserted that each individual’s exposure to the PCBs would need to be addressed separately. But the plaintiffs, citing Redland, countered that they had to show only that more than normal exposure occurred. “Plaintiffs’ expert, Dr. Michael. H. Lewitt, testified that such a determination can be made on a class-wide basis, independent of individual characteristics,” McCloskey wrote. “As Dr. Lewitt emphasized, differences in the amount of exposure will affect the amount of monitoring and testing necessary and not whether monitoring is necessary in the first place.” The court similarly dismissed the defendants’ argument that proof of a significantly increased risk of developing a disease would require individual inquiry. The appeals panel also dismissed defendants’ arguments that issues of causation, medical monitoring and proof of negligence needed individual inquiry. The defendants further argued that because of these necessary individual inquiries, the class action mechanism would not be the most efficient way to litigate the case. They suggested a number of different methods to litigate, including a two-phase trial of all the claims of the 10 to 20 people with the highest PCB blood levels, or a “bellwether group,” consisting of six workers and six residents. The appeals court simply said the trial court “succinctly and correctly expressed reasons” why the class action was the best way to litigate. “If each case were tried separately, it is easy to see that the results could be unfairly diverse not because of the differences in the individual cases or claims but, rather, because different juries viewing the same evidence might come to different conclusions on the scientific issues,” the trial court wrote. The Commonwealth Court agreed with the trial court that the class action suit was much more efficient and fair than litigating the claims individually.

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