Paz, et al. v. Brush Engineered Materials, et al.


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Docket Number: 2006-FC-00771-SCT
Linked Case(s): 2006-FC-00771-SCT
Supreme Court: Opinion Link
Opinion Date: 01-04-2007
Opinion Author: Smith, C.J.
Holding: Certified Question Answered.
Additional Case Information: Topic: Federal certified question - Recognition of medical monitoring action
Judge(s) Concurring: Waller and Cobb, P.JJ., Carlson and Dickinson, JJ.
Non Participating Judge(s): Randolph, J.
Dissenting Author : Diaz, Easley and Graves, JJ.
Nature of the Case: CIVIL - FEDERAL CERTIFIED QUESTION
Trial Court: Date of Trial Judgment: 04-07-2006
Case Number: 05-60157
Note: certified question of Mississippi law from the United States Court of Appeals for the Fifth Circuit.
  Party Name: Attorney Name:  
Appellant: George Paz and Joseph P. Harris, et al.




 RUBEN HONIK STEPHAN MATANOVIC ROBERT C. LATHAM RANDALL A. SMITH STEPHAN M. WILES



  
Appellee: Brush Engineered Materials, Brush Wellman, Inc., Wess-Del, Inc. and The Boeing Company JEFFREY D. UBERSAX PAUL H. STEPHENSON, III ROY D. CAMPBELL, III VERNON LEE WOOLSTON TIMOTHY DALE CRAWLEY  
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Topic: Federal certified question - Recognition of medical monitoring action
Summary of the Facts: Class action plaintiffs have sued defendant corporations for medical monitoring costs for detection of disease development due to beryllium exposure allegedly caused by the negligence of the defendants. The United States District Court for the Southern District of Mississippi granted the defendants’ motions to dismiss, finding a failure to state a cause of action with regards to plaintiffs’ medical monitoring claim and a lack of personal jurisdiction over two of the defendants. Plaintiffs appealed to the United States Court of Appeals for the Fifth Circuit, and finding that Mississippi law was silent as to the recognition of medical monitoring actions, the Fifth Circuit posed the question to the Mississippi Supreme Court of “[w]hether the laws of Mississippi allow for a medical monitoring cause of action, whereby a plaintiff can recover medical monitoring costs for exposure to a harmful substance without proving current physical injuries from that exposure.”
Summary of Opinion Analysis: The plaintiffs argue that recognition of a medical monitoring action is in accordance with Mississippi law. However, creating a medical monitoring action would be contrary to Mississippi common law, which does not allow recovery for negligence without showing an identifiable injury, and, further, strongly indicates that a claim for medical monitoring, as plaintiffs present it, lacks an injury. Recovery in emotional distress cases is possible without a physical injury. Beyond evidence of emotional distress, which is the injury, the plaintiff must show that the defendant’s conduct was willful, wanton, malicious, outrageous or intentional. Here, the plaintiffs’ pleadings and briefs lack allegations or arguments suggesting willful, wanton, malicious, outrageous or intentional conduct by defendants, thereby eliminating this category. Tort recovery is also allowed in the absence of physical injury accompanying the negligent conduct, if there is a resulting physical illness or assault upon the mind, personality or nervous system of the plaintiff which is medically cognizable and which requires or necessitates treatment by the medical profession. The test of reasonable foreseeability must also be met. Though plaintiffs analogize emotional distress actions to medical monitoring actions, the two claims are not analogous. One element of an emotional distress action is that the victim have suffered some injury. Yet, a medical monitoring cause of action, as plaintiffs present it, would not require an injury be proven. Likewise, Mississippi law does not recognize a claim for medical monitoring based on increased risk of future disease. Further, the determination of whether Mississippi can recognize a medical monitoring action hinges on whether the purported cause of action includes a compensable injury. Exposure to a potentially harmful substance does not in itself constitute a personal injury. Persons who allege only exposure are asking for a remedy without a wrong. Therefore, plaintiffs have a claim for harm which is not compensable under Mississippi law. In response to the question from the Fifth Circuit as to whether Mississippi recognizes a medical monitoring cause of action without a showing of physical injury the Mississippi Supreme Court has previously refused to recognize such an action and in accordance with Mississippi common law continues to decline to recognize such a cause of action.


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