MICHAEL MOORE, PAULA ROBERTSON, and NANCY SALZMAN v. SCROLL COMPRESSORS, LLC, and EMERSON ELECTRIC CO. ( 2021 )

MICHAEL MOORE, )
PAULA ROBERTSON, and )
NANCY SALZMAN, )
)
Appellants, )
) No. SD36682
vs. )
) Filed: August 23, 2021
SCROLL COMPRESSORS, LLC, and )
EMERSON ELECTRIC CO., )
)
Respondents. )
APPEAL FROM THE CIRCUIT COURT OF LACLEDE COUNTY
Honorable Kenneth M. Hayden, Judge
AFFIRMED
Appellants sought class certification and medical monitoring in a suit against
Respondents. The circuit court denied class certification, sustained Respondents’ motion
for summary judgment, and entered judgment for Respondents. We affirm.
Background
Appellants Moore and Robertson filed suit against Respondents in late 2013. They
have alleged that they and others are current or former employees who worked at
Respondents’ plant in Lebanon, Missouri, where they were exposed to metalworking
fluids (“MWFs”) during their employment. They claim Respondents knew or should have
known that exposure to those MWFs can cause respiratory problems as well as other
illnesses and diseases, and that Respondents acted tortiously regarding these risks,
resulting in “lung impairment and other diseases that have not yet fully manifested.” They
sought certification of a class and stated four theories of recovery: premises liability,
negligence, fraudulent concealment, and “medical monitoring.” For each, an award of
damages was sought to establish a court-supervised trust that would fund a “medical
monitoring program for class members in order to recover medical expenses reasonably
certain to be incurred in the future for costs of reasonably necessary diagnostic testing for
early detection and treatment of latent injuries or disease that may develop.”
Anticipating a challenge to their adequacy as class representatives, Moore and
Robertson sought leave to amend their petition “for the limited purpose of adding an
additional class representatives [sic] and removing previously dismissed claims.” The
motion was granted over Respondents’ objection. Appellant Salzman was added as a
plaintiff and proposed class representative in 2018.
Appellants presented testimony from two medical experts in support of class
certification. One expert testified, among other things, “The symptoms [of MWF-related
lung disease] occur at the time of exposure, or shortly thereafter[,]” and, “symptoms
would be acute and would be at the time of exposure. Even in chronic, recurrent
exposures, it’s going to be at the time of exposure, and that one’s going to be persisting
over days to weeks.” He further testified that unless a clinician has a high suspicion of
MWF-related lung disease, it is “a difficult diagnosis to make,” so the time it takes to get
a proper diagnosis can be “much longer than the latency to have the onset of symptoms.”
This expert’s recommended medical monitoring program would consist of physical exam
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with medical history, pulmonary functioning testing, high resolution chest tomography,
and blood work. All of these tests already have been performed on the named plaintiffs.
Appellants’ other medical expert testified, “There is no latency period for
metalworking fluid lung disease.” He had never seen a patient who had an MWF-related
lung disease without some type of symptom, which could range from mild to severe. He
was not aware of any studies that suggest persons who have no respiratory issues while
exposed to MWFs subsequently develop symptoms after they leave employment and
exposure ceases. He testified, “If somebody left and absolutely has no symptoms and no
other abnormalities, it’s not likely then that they’re going to develop [MWF-related lung
disease after] a completely symptom-free period with no other abnormalities . . . .”
The Occupational Safety and Health Administration (“OSHA”) requires medical
monitoring for workers exposed to lead, asbestos, and silica, but not for workers exposed
to MWFs. OSHA has visited Respondents’ plant but has not recommended a medical
monitoring program for employees.
Salzman testified that she worked at Respondents’ plant from 1997-1998 and again
from 1999-2017. She was a cigarette smoker for about 50 years. She noticed shortness of
breath when exerting herself, which she attributed to smoking cigarettes. She quit
smoking more than a decade prior to the class certification hearing. In 2015, Salzman
sought medical advice and underwent a series of tests for her shortness of breath. She
was diagnosed with restrictive lung disease. She did not report any breathing problems
to Respondents and she voluntarily terminated her employment for reasons unrelated to
her breathing problems.
The circuit court entered a 15-page order detailing its reasons for denying class
certification. The court noted that neither Appellants nor their experts could identify any
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case in Missouri or any other jurisdiction in which a court had certified a class or awarded
a medical monitoring remedy for MWF exposure. A class action was found not to be
superior because Appellants all alleged present injuries that could be pursued through
personal injury suits, their experts testified to no or virtually no latency between exposure
and the development of MWF-related symptoms, and Appellants provided no authority
for the proposition that latency in diagnosis or the potential for misdiagnosis is a basis to
certify a class for medical monitoring.
The court also found Appellants were not typical of the class they sought to
represent because they already have obtained extensive testing and have been diagnosed
with present physical injuries, which is all the proposed medical monitoring program
would provide to the proposed class. Moore and Robertson were tested by and received
a diagnosis from Appellant’s expert, and Salzman was tested by and received a diagnosis
from her treating physicians.
Respondents then moved for summary judgment, which the circuit court granted
on three grounds:
1. “[M]edical monitoring is not necessary for [Appellants] under Missouri law
because they are not at risk of developing a latent injury in the future that
has not already manifested.”
2. “[Appellants] have already received extensive diagnostic testing and a
diagnosis and thus have already received everything the proposed medical
monitoring program could provide. Accordingly, their claim for medical
monitoring is moot.”
3. Appellants all allege present physical injury and two of the three already
have instituted personal injury suits. Medical monitoring is not necessary
for any of Appellants, and the personal injury suits brought by Moore and
Robertson are in conflict with the remedy of medical monitoring.
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Legal Principles
We review an order granting or denying class certification for abuse of discretion.
Meyer ex rel. Coplin v. Fluor Corp., 220 S.W.3d 712, 715 (Mo. banc 2007). Class
certification or denial “is a procedural matter in which the sole issue is whether plaintiff
has met the requirements for a class action.” Id. “‘[T]he underlying question in any class
action certification is whether the class action device provides the most efficient and just
method to resolve the controversy at hand, all things considered.’” Elsea v. U.S. Eng’g
Co., 463 S.W.3d 409, 418 (Mo.App. 2015) (quoting Hope v. Nissan N. Am., Inc., 353
S.W.3d 68, 74 (Mo.App. 2011)).
Rule 52.081 governs the procedure for certifying a class action and includes four
prerequisites to class certification. Meyer, 220 S.W.3d at 715. These prerequisites are
referred to as numerosity, commonality, typicality, and adequacy. Elsea, 463 S.W.3d at
418. Once these prerequisites are met, a class action can be maintained only by
satisfaction of one of the requirements in Rule 52.08(b). Meyer, 220 S.W.3d at 715. Two
additional requirements are implied: the class must be capable of legal definition, and
the representative parties must be members of the putative class. Elsea, 463 S.W.3d at
418.
“The party seeking class certification bears the burden of proof. This burden is
satisfied if there is evidence in the record, which if taken as true, would satisfy each and
every requirement of the rule.” Id. at 417 (internal citation and quotation marks omitted).
A class certification decision is independent of the ultimate merits of the suit;
however, to identify relevant issues and make a meaningful determination, the court must
1
All rule references are to Missouri Court Rules (2018), unless otherwise indicated.
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understand the applicable substantive law and the scope and nature of the claim. Meyer,
220 S.W.3d at 716.
“While some evidence relating to the merits may be considered in
determining whether the class certification prerequisites have been met, the
court must look only so far as to determine whether, given the factual setting
of the case, if the plaintiff’s general allegations are true, common evidence
could suffice to make out a prima facie case for the class.”
Elsea, 463 S.W.3d at 416 (quoting Hale v. Wal-Mart Stores, Inc., 231 S.W.3d 215,
222 (Mo.App. 2007)).
We review summary judgment de novo, which we will discuss in more detail
below. Green v. Fotoohighiam, 606 S.W.3d 113, 115 (Mo. banc 2020).
Class Certification (Points I and II)
Appellants claim the court erred in denying class certification because they
satisfied the superiority (Point I) and typicality (Point II) requirements. We consider
typicality first, as it is one of the four prerequisites listed in Rule 52.08(a).
The typicality element was described in Elsea:
Typicality means that the class members share the same interest and suffer
the same injury. Hence[,] the burden of demonstrating typicality is fairly
easily met so long as other class members have claims similar to the named
plaintiff. If the claim arises from the same event or course of conduct as the
class claims, and gives rise to the same legal or remedial theory, factual
variations in the individual claims will not normally preclude class
certification. Stated another way, the typicality requirement is met: even
where there is a variance in the underlying facts of the representative's claim
and the putative class members’ claims, as long as the claim arises from the
same event or course of conduct of the defendant as the class claims, the
underlying facts are not markedly different, and the conduct and facts give
rise to the same legal or remedial theory. The typicality requirement tends
to merge with the commonality requirement because both serve as
guideposts for determining whether the class claims are so interrelated that
the interests of the class members will be fairly and adequately protected.
463 S.W.3d at 420 (internal citations, quotation marks, formatting, and emphasis
omitted).
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Appellants argue Salzman2 is a typical member of the class because she and other
potential class members all work or worked for the same employer, all were exposed to
MWFs while working, and their claims all arise from the same event or course of conduct
by Respondents. These considerations, if taken as true, all would favor typicality. But did
Salzman “suffer the same injury”, id., as the unnamed class members?
Appellants’ goal in filing the suit and seeking class certification is “to establish a
medical monitoring program for class members in order to recover medical expenses
reasonably certain to be incurred in the future for costs of reasonably necessary
diagnostic testing for early detection and treatment of latent injuries or disease that may
develop.” (Emphasis added.) The evidence supports the court’s finding that Salzman
already has obtained extensive testing (in fact all of the testing her expert would
recommend) and she has been diagnosed with restrictive lung disease. The expenses for
these tests have already been incurred, and her disease is present, not latent. In short,
she has received, albeit at her own expense, all the proposed medical monitoring program
would provide to the class. Furthermore, Salzman’s own experts cast considerable doubt
as to the latency of MWF-related lung disease. Although there were some considerations
that favored typicality, we cannot say that the court abused its discretion in ruling as it
did.
Appellants fall back to the position that even if typicality was lacking, the court
should have given them leave to substitute another class representative. Appellants
anticipated that the named plaintiffs’ adequacy as class representatives would be
challenged – that was the stated reason for amending the petition to add Salzman as a
2 Appellants make no argument that Moore and Robertson are typical members of the class.
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party. That motion was granted years into the case and prior to the hearing on class
certification. We see no request to substitute or name a different class representative at
any time in the 17 months between the denial of class certification and the hearing on
Respondents’ motion for summary judgment. A trial court is under no duty to grant leave
to amend sua sponte. Gross v. A New Missouri, Inc., 591 S.W.3d 489, 494 (Mo.App.
2019). Point II is denied.
Although lack of typicality alone would support the denial of class certification, we
also find no abuse of discretion in the court’s superiority ruling. Appellants alleged class
certification pursuant to Rule 52.08(b)(3) which requires, “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.”
As with typicality, the superiority requirement was described in Elsea:
The superiority requirement requires the trial court to balance, in terms of
fairness and efficiency, the merits of a class action in resolving the
controversy against those of alternative available methods of adjudication.
The balancing must be in keeping with judicial integrity, convenience, and
economy. Class actions which aggregate small claims that could not
otherwise be brought are exactly the type of claims that satisfy the
superiority requirement.
463 S.W.3d at 423 (internal citations and punctuation omitted).
Appellants argue that a class action is superior because the proposed class
numbers in the thousands, it would be more efficient to resolve the MWF-exposure issue
in one forum, any personal injury case filed by a class member would be distinct from the
medical monitoring case, and there is no indication the class would be difficult to manage.
Appellant takes issue with the circuit court’s focus on lack of latency for MWF-related
diseases and how this feature distinguishes this case from medical monitoring cases for
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exposure to known toxic substances such as lead or asbestos, alleging that the court dug
too far into the merits of the claim rather than focusing on class certification.
The circuit court did not determine the merits of the claim, only what was
necessary to decide the class issue. The court did not determine if the plaintiffs or the
class was exposed to dangerous levels of MWF, whether MWF is a toxic or dangerous
substance, if employees’ risk of disease significantly increased due to exposure, or if
Respondents acted tortiously regarding the exposure of employees to MWFs.
By the very language of Rule 52.08(b)(3), the circuit court must determine whether
“a class action is superior to other available methods for the fair and efficient adjudication
of the controversy.” Medical monitoring is a unique remedy. Our supreme court has
observed that this remedy arose in toxic exposure cases where plaintiffs often have no
symptoms or diagnosable physical injury immediately or shortly after exposure. Meyer,
220 S.W.3d at 716-17. It was the latency of the onset of the symptoms or disease and the
need for detection that distinguished medical monitoring from other remedies available
to plaintiffs with present physical injuries in personal injury cases. Id.In this case, Appellants are alleging that the class suffers from “lung impairment
and other diseases that have not yet fully manifested.” (Emphasis added.) Stated
another way, they are claiming the class members have a present physical injury or
disease they may not know they have (undiagnosed) or that may grow more severe over
time. Accordingly, Appellants’ proposed program provides no ongoing testing or
monitoring if an initial evaluation for MWF-related respiratory disease is negative.3
3 According to Appellants’ expert, “I think it is reasonable if you’ve done an adequate evaluation, . . . no
breathing abnormalities, normal HRCT chest and you go out the door and you’re never exposed again that
you’re not going to develop disease thereafter.”
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A present physical injury, whether mild or severe, is inconsistent with the purpose
of the medical monitoring remedy as described in Meyer and Elsea. “The injury for
which compensation is sought is not a present physical injury[,]” rather, it is
“compensation for an injury to the legally protected interest in avoiding the cost of
reasonably necessary medical monitoring occasioned by the defendant’s actions.”
Meyer, 220 S.W.3d at 718. It also is inconsistent with the testimony of Appellants’ own
experts, who all but foreclosed the possibility that a person who was asymptomatic when
removed from MWF exposure would subsequently develop an MWF-related disease.
Why does this matter for the purpose of class certification? Because all of the
claims would be for a present physical injury, not an asymptomatic, undiagnosable
disease at present that, due to latency, may develop at some point in the future and
therefore necessitates medical monitoring. Certification of a class for medical monitoring
as proposed would not be superior or more efficient because the same issue would vex
both the proposed class and each individual member.
The circuit court did not abuse its discretion in considering latency and differences
between this case and other medical monitoring cases when ruling on class certification.
Point I is denied.
Summary Judgment (Point III)
Appellants claim summary judgment was erroneous because there was evidence
that Salzman will benefit from medical monitoring.4 Salzman stated causes of action for
4 It appears that the circuit court granted summary judgment based on the unique qualities of the medical
monitoring remedy and Appellants’ inability to avail themselves of that particular remedy. Although harm
and remedy are related concepts, we must not put the cart before the horse by conflating damages sought
with the plaintiff’s alleged injury. In Missouri, medical monitoring is not a separate tort claim or cause of
action; rather, it is a remedy or compensable item of damage when liability is established under traditional
tort theories of recovery. Meyer, 220 S.W.3d at 717. We are unaware of any cases, and the parties cite
none, in which summary judgment was granted based not on the inability to prove some type of damage,
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premises liability, negligence, and fraudulent concealment; and the trial court granted
Respondents summary judgment on those claims.5 We review the granting of the
summary judgment de novo. Fotoohighiam, 606 S.W.3d at 115. As very recently
reiterated by the Supreme Court, “this standard of review does not alter that appellants
always bear the burden of establishing error whatever the standard of review.” City of
De Soto and James Acres v. Michael L. Parson, Governor of the State of
Missouri, et al., No. SC98891, slip op. at *6 n.3 (Mo. banc July 22, 2021). Rule 84.13(a)
prohibits our consideration of allegations of error in any civil appeal that were not briefed.
Appellants’ argument that mere evidence existed of some fact will not preclude
summary judgment because the court exclusively looks to the step-by-step procedure
mandated by Rule 74.04 to determine whether there is a genuine issue of material fact.
Appellants fail to identify material facts that demonstrate Respondents are not entitled
to judgment as a matter of law. “‘A material fact in the context of summary judgment is
one from which the right to judgment flows.’” Columbia Mut. Ins. Co. v. Heriford,
518 S.W.3d 234, 240 (Mo.App. 2017) (quoting Goerlitz v. City of Maryville, 333
S.W.3d 450, 453 (Mo. banc 2011)).
Appellants fail to identify in the record and explain any material issues regarding
any of the elements required under any of the causes of action listed above or the
affirmative defenses movants pleaded and identify those in the record. Accordingly, we
but on the unavailability of a particular remedy requested. Furthermore, “[t]he prayer for relief . . . is not a
part of the petition.” Prindable v. Walsh, 69 S.W.3d 912, 914 (Mo.App. 2002). “If sufficient facts are
pleaded and proved, the court may give appropriate relief, and is not confined to the relief sought in the
petition.” Id. at 915.
5 Although Appellants Moore and Robertson are parties to this appeal, the third point relied on and
argument thereon only address Appellant Salzman. “An issue not raised in the points relied on or argued
in the argument section of the brief is deemed abandoned on appeal.” Lanham v. Div. of Employment
Sec., 340 S.W.3d 324, 327 (Mo.App. 2011). Accordingly, any claim of error or argument regarding the
propriety of summary judgment as to Appellants Moore and Robertson is deemed abandoned.
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must find that appellants failed to meet their burden of establishing error. We affirm the
trial court on these three counts.
Salzman also attempted to state a separate cause of action for medical monitoring
in one count. Missouri law does not recognize medical monitoring as a separate cause of
action, Meyer, 220 S.W.3d at 717. Point III is denied.
Conclusion
The judgment of the trial court is affirmed.
JACK A. L. GOODMAN, J. – OPINION AUTHOR
NANCY STEFFEN RAHMEYER, P.J. – CONCURS
WILLIAM W. FRANCIS, JR., J. – CONCURS
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