Barnes v. American Tobacco Co.

Opinions of the United

1998 Decisions States Court of Appeals

for the Third Circuit

11-12-1998

Barnes v. Amer Tobacco Co

Precedential or Non-Precedential:

Docket 97-1844

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Filed November 12, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-1844

WILLIAM BARNES; CIARAN McNALLY; CATHERINE

POTTS; NORMA RODWELLER; BARBARA SALZMAN;

EDWARD SLIVAK; JOHN TEAGLE, ON BEHALF OF

THEMSELVES AND ALL OTHERS SIMILARLY SITUATED

v.

THE AMERICAN TOBACCO COMPANY; AMERICAN

BRANDS, INC.; R.J. REYNOLDS TOBACCO COMPANY;

RJR NABISCO, INC.; BROWN & WILLIAMSON TOBACCO

CORPORATION; BATUS, INC.; BATUS HOLDINGS, INC.;

B.A.T. INDUSTRIES, P.L.C.; PHILIP MORRIS, INC.; PHILIP

MORRIS COMPANIES, INC.; LORILLARD TOBACCO

COMPANY, INC.; LORILLARD, INC.; LOEWS

CORPORATION; UNITED STATES TOBACCO COMPANY;

UST, INC.; THE TOBACCO INSTITUTE, INC.; THE

COUNCIL FOR TOBACCO RESEARCH-U.S.A., INC.;

LIGGETT GROUP, INC.; LIGGETT & MYERS, INC.;

BROOKE GROUP, LTD.; PENNSYLVANIA DISTRIBUTORS

ASSOCIATION, INC.; UNITED WHOLESALE TOBACCO

AND CANDY, d/b/a UNITED VENDING SERVICE, INC.;

BRITISH AMERICAN TOBACCO COMPANY

William Barnes, Ciaran McNally, Catherine Potts,

Norma Rodweller, Barbara Salzman and Edward

Slivak, on behalf of themselves and all those

similarly situated,

Appellants

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 96-cv-05903)

Argued June 4, 1998

Before: SCIRICA, NYGAARD and SEITZ,* Circuit Judges

(Filed November 12, 1998)

ROBERT J. LaROCCA, ESQUIRE

(ARGUED)

Ryan, Brown, McDonnell, Berger &

Gibbons

1600 Market Street, Suite 3850

Philadelphia, Pennsylvania 19103

ARNOLD LEVIN, ESQUIRE

(ARGUED)

Levin, Fishbein, Sedran & Berman

510 Walnut Street, Suite 500

Philadelphia, Pennsylvania 19106

DIANNE M. NAST, ESQUIRE

Roda & Nast

801 Estelle Drive

Lancaster, Pennsylvania 17601

JULIA W. McINERNY, ESQUIRE

Coale, Cooley, Leitz, McInerny &

Broadus

818 Connecticut Avenue, N.W.,

Suite 857

Washington, D.C. 20006

_________________________________________________________________

*Judge Seitz heard argument in this matter but was unable to clear the

opinion.

2

GARY R. FINE, ESQUIRE

Rodham & Fine

633 Southeast Third Avenue,

Suite 4R

Fort Lauderdale, Florida 33301

THOMAS E. MELLON, JR.,

ESQUIRE

Mellon, Webster & Mellon

87 North Broad Street

Doylestown, Pennsylvania 18901

STEPHEN A. SHELLER, ESQUIRE

Sheller, Ludwig & Badey

1528 Walnut Street, 3rd Floor

Philadelphia, Pennsylvania 19102

Attorneys for Appellants

HUGH R. WHITING, ESQUIRE

Jones, Day, Reavis & Pogue

901 Lakeside Avenue, North Point

Cleveland, Ohio 44114

MORTON F. DALLER, ESQUIRE

EDWARD A. GREENBERG,

ESQUIRE

GERHARD P. DIETRICH, ESQUIRE

Daller, Greenberg & Dietrich

Valley Green Corporate Center

7111 Valley Green Road

Fort Washington, Pennsylvania

19034

Attorneys for Appellee,

R.J. Reynolds Tobacco Company

DANIEL F. KOLB, ESQUIRE

ANNE B. HOWE, ESQUIRE

Davis, Polk & Wardwell

450 Lexington Avenue

New York, New York 10017

3

MORTON F. DALLER, ESQUIRE

EDWARD A. GREENBERG,

ESQUIRE

GERHARD P. DIETRICH, ESQUIRE

Daller, Greenberg & Dietrich

Valley Green Corporate Center

7111 Valley Green Road

Fort Washington, Pennsylvania

19034

Attorneys for Appellee,

RJR Nabisco, Inc.

JAMES L. GRIFFITH, ESQUIRE

Klett, Lieber, Rooney & Schorling

18th and Arch Streets

Two Logan Square, 12th Floor

Philadelphia, PA 19103

VIRGINIA L. HOGBEN, ESQUIRE

Wolf, Block, Schorr & Solis-Cohen

Packard Building, 12th Floor

15th and Chestnut Streets

Philadelphia, Pennsylvania 19102

PETER S. GREENBERG, ESQUIRE

Schnader, Harrison, Segal & Lewis

1600 Market Street, Suite 3600

Philadelphia, Pennsylvania 19103

GARY R. LONG, ESQUIRE

SHANNON L. SPANGLER, ESQUIRE

Shook, Hardy & Bacon

One Kansas City Place

1200 Main Street

Kansas City, Missouri 64105

Attorneys for Appellee,

Brown & Williamson Tobacco

Corporation

4

ROBERT C. HEIM, ESQUIRE

(ARGUED)

JEFFREY G. WEIL, ESQUIRE

Dechert, Price & Rhoads

4000 Bell Atlantic Tower

1717 Arch Street

Philadelphia, Pennsylvania 19103

Attorneys for Appellees,

Philip Morris, Inc. and Philip

Morris Companies, Inc.

WILLIAM J. O'BRIEN, ESQUIRE

HOWARD M. KLEIN, ESQUIRE

Conrad, O'Brien, Gellman & Rohn

1515 Market Street, 16th Floor

Philadelphia, Pennsylvania 19102

GARY R. LONG, ESQUIRE

SHANNON L. SPANGLER, ESQUIRE

Shook, Hardy & Bacon

One Kansas City Place

1200 Main Street

Kansas City, Missouri 64105

Attorneys for Appellees,

Lorillard Tobacco Company, Inc.

and Lorillard, Inc.

WILLIAM J. O'BRIEN, ESQUIRE

HOWARD M. KLEIN, ESQUIRE

Conrad, O'Brien, Gellman & Rohn

1515 Market Street, 16th Floor

Philadelphia, Pennsylvania 19102

Attorneys for Appellee,

The Tobacco Institute, Inc.

5

PATRICK W. KITTREDGE, ESQUIRE

GARY M. MAREK, ESQUIRE

Kittredge, Donley, Elson, Fullem &

Embick

421 Chestnut Street, Fifth Floor

Philadelphia, Pennsylvania 19106

Attorneys for Appellee,

The Council for Tobacco Research-

U.S.A., Inc.

J. KURT STRAUB, ESQUIRE

(ARGUED)

Obermayer, Rebmann, Maxwell &

Hippel

One Penn Center, 19th Floor

1617 John F. Kennedy Boulevard

Philadelphia, Pennsylvania 19103

Attorney for Appellees,

Liggett Group, Inc., Liggett &

Myers, Inc. and Brooke Group,

Ltd.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

In this suit against the major American tobacco

companies, we must decide whether a medical monitoring

class should be certified under Federal Rule of Civil

Procedure 23(b)(2). The District Court decertified a

proposed class of cigarette smokers on the grounds that

significant individual issues precluded certification. After

finding the statute of limitations had run with respect to

the claims of five named plaintiffs and the sixth had failed

to establish the need for medical monitoring, the District

Court granted defendants summary judgment. We will

affirm the District Court's decertification order and its grant

of summary judgment.

6

I.

FACTS AND PROCEDURAL HISTORY

Named plaintiffs William Barnes, Catherine Potts, Norma

Rodweller, Barbara Salzman, Edward J. Slivak, and Ciaran

McNally are Pennsylvania residents who began smoking

cigarettes before the age of 15 and have smoked for many

years. Plaintiffs filed suit against the defendant tobacco

companies1 in the Court of Common Pleas of Philadelphia

County. Defendants removed to the Eastern District of

Pennsylvania, and plaintiffs filed an Amended Complaint

asserting claims of intentional exposure to a hazardous

substance, negligence, and strict products liability on

behalf of a purported class of over one million Pennsylvania

cigarette smokers. In their prayer for relief, plaintiffs asked

(1) that defendants fund a court-supervised or court-

approved program providing medical monitoring to class

members; (2) for punitive damages to create a fund for

common class-wide purposes, including medical research,

public education campaigns, and smoking cessation

programs; and (3) for other monetary and injunctive relief

the court deemed just and proper.

A.

The District Court found the class did not meet the

requirements of Rule 23(b)(2) or (b)(3). See Arch v. The

American Tobacco Co., 175 F.R.D. 469 (E.D. Pa. 1997). The

District Court rejected Rule 23(b)(2) certification because

plaintiffs had not primarily sought injunctive or equitable

_________________________________________________________________

1. The defendants are The American Tobacco Company, Inc.; American

Brands, Inc.; R.J. Reynolds Tobacco Company; RJR Nabisco, Inc.; Brown

& Williamson Tobacco Corporation; Philip Morris, Inc.; Philip Morris

Companies, Inc.; Lorillard Tobacco Company, Inc.; Lorillard, Inc.; United

States Tobacco Company; UST, Inc.; The Tobacco Institute, Inc.; The

Council for Tobacco Research-U.S.A., Inc.; Liggett Group, Inc.; Liggett &

Myers, Inc.; Brooke Group, LTD. Pursuant to the parties' stipulations,

American Brands, Inc.; Batus, Inc.; Batus Holdings, Inc., Loews

Corporation, and UST, Inc. have been dismissed from this action without

prejudice. In addition, B.A.T. Industries p.l.c. was dismissed for lack of

personal jurisdiction by order of the District Court dated June 21, 1997.

7

relief, finding that "[p]laintiffs' medical monitoring claim is

merely a thinly disguised claim for future damages" and

that "the overwhelming majority of the relief sought by

plaintiffs in their entire complaint is monetary in nature."

Id. at 484. The court also found certification improper

under Rule 23(b)(3) because issues common to the class did

not predominate over plaintiffs' individual issues. In

particular, the District Court found individual issues, such

as addiction, causation, the need for medical monitoring,

and affirmative defenses, made a class action

unmanageable and not the superior method for fair and

efficient adjudication of the case. Id. at 485-96.

The District Court suggested, however, that plaintiffs'

request for a court-supervised program of medical

monitoring to detect the latent diseases caused by smoking

was the "paradigmatic" request for injunctive relief under a

medical monitoring claim. Id. at 484. Specifically, the court

stated:

The Court finds that it may properly certify a medical

monitoring claim under Rule 23(b)(2) when the

plaintiffs seek such specific relief which can be

properly characterized as invoking the court's equitable

powers. See [Day v. NLO, Inc., 144 F.R.D. 330, 336

(S.D. Ohio 1992), rev'd on other grounds, 5 F.3d 154

(6th Cir. 1993)]; see also Fried v. Sunguard Recovery

Serv., Inc., 925 F. Supp. 372 (E.D. Pa. 1996). In

reaching this decision, the Court perforce rejects

defendants' argument that a medical monitoring claim

can never be characterized as injunctive.

The dispositive factor that must be assessed to

determine whether a medical monitoring claim can be

certified as a Rule 23(b)(2) class is-what type of relief

do plaintiffs actually seek. If plaintiffs seek relief that is

a disguised request for compensatory damages, then

the medical monitoring claim can only be characterized

as a claim for monetary damages. In contrast, if

plaintiffs seek the establishment of a court-supervised

medical monitoring program through which the class

members will receive periodic medical examinations,

then plaintiffs' medical monitoring claims can be

8

properly characterized as claim seeking injunctive

relief.

In Day, Judge Spiegel cogently articulates the fine

distinction between a medical monitoring claim that

seeks monetary relief in the form of compensatory

damages and a medical monitoring claim that seeks

injunctive relief in the form of a court-supervised

medical monitoring program. Judge Spiegel explains:

Relief in the form of medical monitoring may be by

a number of means. First, a court may simply order

a defendant to pay a plaintiff a certain sum of

money. The plaintiff may or may not choose to use

that money to have his medical condition monitored.

Second, a court may order the defendants to pay the

plaintiffs' medical expenses directly so that a plaintiff

may be monitored by the physician of his choice.

Neither of these forms of relief constitute injunctive

relief as required by Rule 23(b)(2).

However, a court may also establish an elaborate

medical monitoring program of its own, managed by

court-appointed court-supervised trustees, pursuant

to which a plaintiff is monitored by particular

physicians and the medical data produced is utilized

for group studies. In this situation, a defendant, of

course, would finance the program as well as being

required by the Court to address issues as they

develop during the program administration. Under

these circumstances, the relief constitutes injunctive

relief as required by Rule 23(b)(2).

Day, 144 F.R.D. at 335-36; see also Fried, 925 F.

Supp. at 374 (implying that under medical monitoring

case law, a creation of a medical monitoring program

would be equitable in nature). Based on Judge

Spiegel's insightful distinction, it is apparent that relief

requested under a medical monitoring claim can be

either injunctive or equitable in nature.

To determine whether the named plaintiffs in this

case seek equitable relief under their medical

monitoring claim, plaintiffs' specific request for relief

under this claim must be closely scrutinized. Plaintiffs

9

seek the establishment of a court-supervised program

through which class members would undergo periodic

medical examinations in order to promote the early

detection of diseases caused by smoking. This portion

of plaintiffs' request is the paradigmatic request for

injunctive relief under a medical monitoring claim.

Arch at 483-84.

Accordingly, the District Court granted plaintiffs leave to

file an amended complaint. In their Second Amended

Complaint, plaintiffs brought only one claim against

defendants--medical monitoring.2 Moreover, plaintiffs

eliminated all requests for smoking cessation programs,

medical treatment programs, punitive damages, and

restitutional damages; the only relief they sought was a

court-supervised fund that would pay for medical

examinations designed to detect latent diseases caused by

smoking. Plaintiffs sought certification under Rule 23(b)(2)

for "[a]ll current residents of Pennsylvania who are cigarette

smokers as of December 1, 1996 [the day the amended

complaint was filed in federal court] and who began

smoking before age 19, while they were residents of

Pennsylvania."

The Second Amended Complaint alleged that plaintiffs

and other class members had been exposed to proven

hazardous substances through the intentional or negligent

actions of the defendants and/or through defective

products for which defendants are strictly liable. Plaintiffs

alleged that as a proximate result of this exposure, they

and other class members suffer significantly increased risks

of contracting serious latent diseases and therefore need

periodic diagnostic medical examinations. Specifically,

plaintiffs contended that classwide expert evidence would

prove that: (1) when cigarettes are used as defendants

intended them to be used, the vast majority of those who

use cigarettes become addicted and (2) cigarettes are the

leading cause in the nation of cardiovascular disease, lung

cancer, and chronic obstructive pulmonary disease, due to

_________________________________________________________________

2. As we will discuss more fully below, the Pennsylvania Supreme Court

recognized a cause of action for medical monitoring in Redland Soccer

Club, Inc. v. Department of the Army, 696 A.2d 137 (Pa. 1997).

10

the exposure of the throat, heart, and lungs to tobacco

smoke. Barnes v. The American Tobacco Co., 176 F.R.D.

479, 491 (E.D. Pa. 1997).

In support of their claim, plaintiffs asserted the following:

- defendants have sold annually in Pennsylvania 22.6

billion cigarettes;

- there are numerous hazardous substances in

cigarette smoke;

- defendants have known of the relationship between

cigarettes and diseases but have concealed their

research, publicly denied the relationship between

cigarettes and disease, and continue to aggressively

promote and sell cigarettes;

- defendants have known for many years of ways to

make safer cigarettes but have intentionally chosen

not to do so;

- defendants have known for many years that nicotine

is addictive but have publicly denied both the fact

that nicotine is addictive and their knowledge of this

fact;

- defendants have intentionally controlled the level of

nicotine and other toxic substances in the cigarettes

in order to preserve the dependence of smokers on

cigarettes;

- defendants have used additives such as ammonia,

as well as designs for which defendants have sought

patents, to make cigarettes a `package' for the

delivery of nicotine;

- defendants have intentionally avoided researching or

developing cigarettes that would not cause

dependence or addiction in those who use them;

and

- defendants have spent millions of dollars each year

in advertising and promoting cigarettes and have

geared their efforts particularly to teenagers and

children through such efforts as the "Joe Camel"

advertising campaign because defendants have

11

allegedly known that unless a person begins

smoking before the age of twenty, the person is

unlikely ever to begin.

Plaintiffs' physician experts designed the monitoring

program using objective medical tests and age-graded

criteria. They stated that cigarette smoking was the

principal cause of lung cancer, cardiovascular disease, and

chronic obstructive pulmonary disease, the three diseases

to be monitored.

On August 22, 1997, the District Court conditionally

certified the class under Rule 23(b)(2). See Barnes v. The

American Tobacco Co., 176 F.R.D. at 481-93. The court

held:

Because defendants have been unable to

demonstrate at this point in time that this case is beset

with individual issues and manageability problems, the

Court finds that plaintiffs' proposed case has the

cohesiveness to survive as a Rule 23(b)(2) class.

Plaintiffs allege that defendants, acting in concert or

pursuant to a common design, have engaged in

tortious conduct directed toward the entire class as a

whole. Whether or not plaintiffs can prove that

defendants have acted in concert or pursuant to a

common design is not a proper question to be resolved

in a certification motion, rather this merit-based

question must be reserved for later proceedings. See

[Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178

(1974)]. However, for purposes of the instant issue sub

judice, it is highly relevant that plaintiffs have alleged

that defendants have acted in concert or pursuant to a

common design. It is this allegation of concerted

conduct that supports a finding that defendants have

acted on grounds generally applicable to all members

of plaintiffs' class. Although there may be individual

variations with respect to each class members'

relationship with the defendants, the common

questions of defendants' liability, which are intimately

connected with their concerted conduct, support a

finding that defendants have acted on grounds

generally applicable to all members of the proposed

class.

12

Barnes, 176 F.R.D. at 492-93.

Subsequently, defendants asked the court to certify the

class certification order for interlocutory appeal or, in the

alternative, to reconsider the order. They alsofiled motions

for summary judgment.3 The District Court denied

defendants' request to certify or reconsider the class

certification order but decertified the class under Rule

23(c)(1).4 See Barnes at 493-502. After reviewing the

_________________________________________________________________

3. On September 22, 1997, while these motions were pending,

defendants moved to enforce the jury demand. On October 10, 1997, the

District Court granted the motion for a jury trial. See Barnes v. The

American Tobacco Co., 989 F. Supp. 661 (E.D. Pa. 1997). In reaching

this decision, the District Court applied the two-part test of Chauffeurs,

Teamsters & Helpers, Local No. 391 v. Terry, 494 U.S. 558 (1990). In

Terry, the Court noted the Seventh Amendment right to a jury is

applicable when legal rights are at stake. See id. at 564. "To determine

whether a particular action will resolve legal rights [the court must]

examine both the nature of the issues involved and the remedy sought.

. . . First, [the court must compare] the[ ] action to 18th century

actions

brought in the courts of England prior to the merger of the courts of law

and equity." Id. at 565 (citation omitted). Second, the court must

" `examine the remedy sought and determine whether it is legal or

equitable in nature.' " Id. (citation omitted).

In applying part one of the Terry test, the District Court noted that no

cause of action for medical monitoring existed in 1791 but determined

that "the most analogous cause of action is a negligence action for future

medical expenses" which was an action at law. Thus, the District Court

concluded, the first line of inquiry "weighs in favor of finding that

defendants have a right to a jury trial." Barnes v. The American Tobacco

Co., 989 F. Supp. at 664-65.

Turning to the second line of inquiry under Terry, the District Court

acknowledged the relief sought is equitable but noted plaintiffs could

have "just as readily" requested lump sum damages. Plaintiffs' decision

to pursue a medical monitoring fund instead of damages, the District

Court concluded, should not deprive the defendants of their

constitutional right to trial by jury. See id. at 667-68. See Dairy Queen,

Inc. v. Wood, 369 U.S. 469, 477-78 (1962) ("[T]he constitutional right to

trial by jury cannot be made to depend upon the choice of words used

in the pleadings.").

Plaintiffs appeal this order. Because we will affirm the grant of

summary judgment, we need not decide this issue.

4. An order to certify a class "may be conditional and may be altered or

amended before the decision on the merits." Fed. R. Civ. P. 23(c)(1).

13

summary judgment record, the court held "the individual

issue of addiction, which plaintiffs had previously

represented as playing no part in this case, is still actually

part of the present case"; defendants were not barred from

asserting affirmative defenses; and these and other

elements in the case presented numerous individual issues

which "preclude[d] continuing this case as a class action."

Id. at 500-02.

Specifically, the court found three individual issues

precluded class certification: addiction, causation, and

affirmative defenses. First, the court discussed the role of

addiction:

When compelled to discuss the substantive issues in

the case on defendants' motion for summary judgment,

plaintiffs primarily focused on "addiction" and

purported nicotine "manipulation. . . ." As was

explained in Arch, whether or not an individual is

addicted is a highly individualistic inquiry:

Plaintiffs' own expert Dr. Burns recognizes that the

assessment of addiction is an inherently individual

inquiry. . . . Based on this statement, defendants

argue that class certification under these

circumstances would require a mini-hearing on the

merits of each individual's case to determine injury.

See Forman v. Data Transfer, Inc., 164 F.R.D. 400,

403 (E.D. Pa. 1995). Importantly, the Court finds

that nowhere in plaintiffs' voluminous submissions

do they actually refute that addiction is an

inherently individual inquiry. Instead, plaintiffs offer

a solution to this massive problem of proving

addiction on an individual basis. Plaintiffs propose

that once the general issue as to whether cigarettes

can cause addiction is resolved, the issue as to

whether each and every class member is addicted

can be resolved by having them answer a

questionnaire, consisting of six simple questions.

_________________________________________________________________

Under this rule, District Courts are required to reassess their rulings

regularly as the case develops. Kuehner v. Heckler, 778 F.2d 152, 163

(3d Cir. 1985).

14

Defendants rejoin that this questionnaire cannot by

itself determine whether a person is nicotine

dependent.

The Court finds that even if the questionnaire were

used to determine nicotine dependence, defendants

would be permitted to cross-examine each and every

class member as to their alleged dependence.

Plaintiffs admittedly acknowledge that the plan they

propose would be, at most, a prima facie indication

of addiction. Plaintiffs' own experts concede that

addiction is necessarily an individual inquiry. To

refute plaintiffs' prima facie case, defendants would

be permitted to cross-examine each individual about

his specific choices, decisions and behavior, and

defendants would be entitled to offer expert

testimony about each person's specific

circumstances and diagnosis.

Barnes, 176 F.R.D. at 500 (citing Arch, 175 F.R.D. at 487-

88).

The District Court also found that causation was an

individual issue precluding certification. Although plaintiffs

had narrowed their theories of liability, the court found

their claim for medical monitoring still implicated the same

individual issue of causation their First Amended

Complaint asserted in negligence, strict liability, and

intentional exposure to a hazardous substance. "[I]nstead of

completely dropping their claims for negligence, strict

liability and intentional exposure to a hazardous substance,

plaintiffs merely inserted these theories as the underlying

theories of liability for their medical monitoring. Thus,

these theories, with their attendant individual issues, are

still in this case." Barnes, 176 F.R.D. at 500. The District

Court then quoted its June 3, 1997 decision at length:

To succeed on their products liability and negligence

claims, plaintiffs will also have to prove "causation,"

which the Court finds is not capable of determination

on a class-wide basis in this case. Resolution of the

"general causation" question of whether cigarettes are

capable of being addictive "is not common under Rule

23(a)(2)." Kurczi v. Eli Lilly & Co., 160 F.R.D. 667, 677

15

(N.D. Ohio 1995). Unless it is proven that cigarettes

always cause or never cause addiction, "the resolution

of the general causation question accomplishes nothing

for any individual plaintiff." Id.; see also In re "Agent

Orange" Product Liability Litigation, 818 F.2d 145, 165

(2d Cir. 1987) (the "relevant question is not whether

Agent Orange has the capacity to cause harm," but

rather the "highly individualistic" question of whether

"it did cause harm and to whom").

* * *

Plaintiffs cannot satisfy the "causation" element of

these claims by proving that all cigarettes can

potentially cause the user to become addicted. This is

a general causation issue. The resolution of this

"general causation question" would accomplish nothing

for any of the individual plaintiffs. See Kurczi, 160

F.R.D. at 677. Indeed, the jury would still be required

to determine for each class member whether he or she

is addicted to cigarettes, and, if so, whether defendants

(and which defendant) caused that addiction. With

respect to causation, the Court finds that this issue is

highly individualized and does not lend itself to Rule

23(b)(2) certification.

To establish their strict products liability claim,

plaintiffs will be required to prove a defect in

defendants' products. This inquiry is also highly

individualized. Defendants manufactured hundreds of

different types of cigarettes over the years and have

even made changes within each brand . . . .

Plaintiffs claim that they can prove a common defect

on a class-wide basis for all of defendants' products.

Plaintiffs argue that all of defendants' products are

inherently defective because they contain sufficient

levels of nicotine to cause addiction and other

hazardous substances. Thus, plaintiffs will attempt to

establish a common defect by showing that this

combination exists in all of the cigarettes sold by

defendants. Nonetheless, the possibility that plaintiffs'

common defect theory will fail and that the class will

be splintered into various subclasses--creating

16

manageability concerns--"weighs against a finding of

predominance of common issues."

Barnes, 176 F.R.D. at 500-01 (citing Arch, 175 F.R.D. at

488-89 (footnotes omitted)). The court concluded, "[b]ecause

plaintiffs intend to prove their medical monitoring claim by

using the theories of negligence and strict liability, the

individual issues, which are implicated by these theories

still exist, and thus preclude class certification." Barnes,

176 F.R.D. at 501.

Finally, the court found that affirmative defenses

available to the defendants raised individual issues.5 The

court explained: "For example, the defense of assumption of

risk requires this Court to examine whether each and every

plaintiff was subjectively aware of the risk and/or danger.

. . . In determining whether the statute of limitations

precludes a plaintiff from suing on his claim, the Court

necessarily would have to examine when plaintiff's injury

accrued, and whether plaintiff knew or should have known

of the injury and its cause. This is clearly an individual

issue. . . . These issues clearly preclude certification."

Barnes, 176 FRAUD at 502.

B.

The District Court also granted defendants' motions for

summary judgment, finding the statute of limitations had

expired for five of the six named plaintiffs and that the

sixth plaintiff had failed to demonstrate a need for medical

monitoring. Barnes v. The American Tobacco Co., 984 F.

Supp. 842 (E.D. Pa. 1997).6

_________________________________________________________________

5. As we discuss below, in its memorandum opinion disposing of

defendants' summary judgment motions, the court concluded, over

plaintiffs' objections, that certain affirmative defenses (e.g. assumption

of

risk) are available to the defendants.

6. Defendants also moved for summary judgment on the issue of product

identification. In granting summary judgment for all defendants the

District Court did not reach this issue. Defendants Liggett Group Inc.,

Liggett & Myers Inc., and Brooke Group Ltd. joined defendants' joint

brief but also ask us to affirm on the additional ground that plaintiffs

failed to produce any evidence that exposure to any Liggett cigarette was

a substantial factor in causing injury to any of the named plaintiffs.

Because we will affirm the District Court's grant of summary judgment

to all defendants, we need not reach this issue.

17

Plaintiffs contended their cause of action was governed

by the equitable doctrine of laches, not the statute of

limitations. But finding the action "both inherently

equitable and legal," the District Court held the statute of

limitations "should apply to this action because plaintiffs

could have brought this action at law or in equity." Barnes,

984 F. Supp. at 855.

Examining the theories of liability underlying a medical

monitoring claim, the District Court applied a two-year

statute of limitations. In Redland, the Pennsylvania

Supreme Court held a plaintiff must prove defendant's

negligence caused his exposure to a proven hazardous

substance. For this reason, the District Court predicted the

Pennsylvania Supreme Court would apply the two-year

statute of limitations for negligence actions to medical

monitoring claims. See Barnes, 984 F. Supp. at 856-57

(citing 42 Pa. Cons. Stat. Ann. S 5524). Furthermore, to the

extent that plaintiffs base their claims on strict products

liability or an intentional tort, a two-year statute of

limitations would still apply. See id. at 857.

In deciding when the claim accrued, the court noted that

generally, a plaintiff "is under a duty to use all reasonable

diligence to be properly informed of the facts and

circumstances upon which a potential right of recovery is

based and to institute suit within the prescribed statutory

period." Pocono Int'l Raceway, Inc. v. Pocono Produce, 468

A.2d 468, 471 (Pa. 1983). A claim under Pennsylvania law

accrues at "the occurrence of the final significant event

necessary to make the claim suable." Mack Trucks, Inc. v.

Bendix-Westinghouse Automotive Air Brake Co., 372 F.2d

18, 20 (3d Cir. 1966). The "discovery rule" is, however, a

"narrow exception to this general rule," Tohan v. Owens-

Corning Fiberglass Corp., 696 A.2d 1195, 1200 n. 4 (Pa.

Super. Ct. 1997), and tolls the statute of limitations during

the "plaintiff's complete inability, due to facts and

circumstances not within his control, to discover an injury

despite the exercise of due diligence." Kingston Coal Co. v.

Felton Mining Co., Inc., 690 A.2d 284, 288 (Pa. Super. Ct.

1997). Under the discovery rule, the statute of limitations

begins to run when the "plaintiff knows, or in the exercise

of reasonable diligence should have known, (1) that he has

18

been injured, and (2) that his injury has been caused by

another's conduct." Bradley v. Ragheb, 633 A.2d 192, 194

(Pa. Super. Ct. 1993) (quoting MacCain v. Montgomery

Hosp., 578 A.2d 970, 972-73 (Pa. Super. Ct. 1990)).

Because a claim under Pennsylvania law accrues at "the

occurrence of the final significant event necessary to make

the claim suable," Mack Trucks, 372 F.2d at 20, the court

found the plaintiffs' medical monitoring cause of action

accrued when the plaintiffs were placed at a "significantly

increased risk of contracting a serious latent disease."

Redland, 696 A.2d at 145. To determine when that event

occurred, the court examined plaintiffs' expert testimony.

According to the expert testimony, plaintiffs suffered this

significantly increased risk when they reached the "twenty

pack-year" level.7 The court found that five of the six

plaintiffs were at that level. Thus, the court concluded,

without applying the discovery rule, the medical monitoring

claims of these five plaintiffs were barred by the two-year

statute of limitations. Barnes, 984 F. Supp. at 859-61.

The court found that even applying the discovery rule

would not save these five plaintiffs' claims because each

"should have known that smoking cigarettes put him or her

at a significantly increased risk of contracting a serious

latent disease years before they filed the instant lawsuit.

. . . When a Court is asked to apply the discovery rule, the

relevant question is whether an ordinary person, exercising

reasonable diligence, would have known or should have

known of his injury and its cause. In this case, each

plaintiff should have known or did know that smoking

caused them to be placed at an increased risk of

contracting a serious disease." Id. at 862-63.

Reviewing the evidence, the court concluded that Barnes,

Potts, Rodweller, Salzman, and Slivak had all had notice of

the dangers of cigarette smoking for more than two years.

Id. With respect to the sixth plaintiff, McNally, the court

_________________________________________________________________

7. "Pack-year" refers to the number of years during which an individual

has smoked a pack of cigarettes per day. For example, a person who

smokes one pack a day for 10 years has a 10 pack-year history. A

person smoking half a pack per day for 10 years has a five pack-year

history. Barnes, 984 F. Supp. at 852 n.6.

19

determined that, since she had only been smoking for 11

years, her claim could not have accrued until sometime last

year. See Barnes, 984 F. Supp. at 861 n.14.8

C.

But the District Court granted summary judgment

against McNally on a different ground, finding she failed to

demonstrate a need for medical monitoring. With regard to

McNally, the District Court found:

Under the Burns Program, Ms. McNally is only

entitled to participate in the first level of the proposed

medical monitoring program. Under the first level, Ms.

McNally would be entitled to receive, annually or bi-

annually, a physical examination, cardiovascular risk

assessment and an EKG. However, Ms. McNally herself

does not seek monitoring in the form of an EKG. (Defs.'

Mot. Summ. J. Medical Monitoring Ex. 1 Pls.' Resp.

Interrog. 10). Thus, the only monitoring that Ms.

McNally seeks, and would be qualified for under the

Burns Program, is a physical examination and

cardiovascular risk assessment.

* * *

Because annual physical examinations and

cardiovascular risk assessment are routinely

recommended to all persons in the absence of

exposure, the Court finds Ms. McNally can not

establish that "the prescribed monitoring regime is

different from that normally recommended in the

absence of the exposure." [Redland, 696 A.2d at 146].

. . . The substance of this requirement is to ensure that

"a plaintiff may recover only if the defendant's wrongful

acts increased the plaintiff's incremental risk of

_________________________________________________________________

8. Although the District Court applied the Petty-Hyers program's twenty

pack-year threshold to determine the date upon which a medical

monitoring claim accrued for the other named plaintiffs, it applied the

Burns program's ten pack-year threshold to McNally. See Barnes, 984 F.

Supp. at 860, 861 n.14. Because we conclude that McNally has not

demonstrated a need for medical monitoring, we do not decide which (if

either) pack-year threshold is appropriate.

20

incurring the harm produced by the toxic substance

enough to warrant a change in the medical monitoring

that otherwise would be prescribed for that plaintiff."

[Id. at 144 (citation omitted)].

Here, Ms. McNally only seeks monitoring for two

tests which would be recommended for her even if she

did not smoke. Any increase in Ms. McNally's

incremental risk of incurring the harm produced by the

allegedly hazardous substances in cigarettes would not

warrant a change in the medical monitoring that would

be prescribed for her. Indeed, in the absence of

exposure, it would be recommended that she receive

the tests she seeks under her medical monitoring

claim. Thus, she cannot satisfy the sixth element of

Redland.

Barnes, 984 F. Supp. at 871-72.

Plaintiffs appealed from the final judgment.

II.

JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction under 28 U.S.C.

S 1332. We exercise jurisdiction under 28 U.S.C. S 1291.

We review the District Court's decision to decertify the

class for an abuse of discretion. See Baby Neal v. Casey, 43

F.3d 48, 56 n.15 (3d Cir. 1994). We exercise plenary review

of a grant of summary judgment. Wicker v. Consol. Rail

Corp., 142 F.3d 690, 696 (3d Cir. 1998) (citation omitted),

and apply the same test as the District Court; namely, we

must determine if there is a "genuine issue as to any

material fact" and if "the moving party is entitled to a

judgment as a matter of law." Fed. R. Civ. P. 56(c). In so

doing, we must view all evidence and draw all inferences

therefrom in the light most favorable to the nonmoving

party. Wicker, 142 F.3d at 696 (citation omitted).

21

III.

DISCUSSION

A. Medical Monitoring

The crucial issue is whether plaintiffs' medical monitoring

claim requires inquiry into individual issues. We begin by

briefly describing the evolution of this cause of action and

its elements.9

In In re Paoli Railroad Yard PCB Litigation, 916 F.2d 829

(3d Cir. 1990) (Paoli I), we predicted the Pennsylvania

Supreme Court would recognize a cause of action for

medical monitoring. We reaffirmed that prediction in In re

Paoli Railroad Yard PCB Litigation, 35 F.3d 717 (3d Cir.

1994) (Paoli II).10 The issue of medical monitoring first

reached the Pennsylvania Supreme Court in Simmons v.

Pacor, Inc., 674 A.2d 232 (Pa. 1996), where the unanimous

court recognized medical monitoring as a viable cause of

action under Pennsylvania law. In Simmons, the court

permitted plaintiffs with asbestos-related asymptomatic

pleural thickening to recover for medical monitoring. It was

not until Redland Soccer Club v. Department of the Army,

696 A.2d 137 (Pa. 1997), however, that the Pennsylvania

Supreme Court had the opportunity to articulate the

specific elements of a claim for medical monitoring.

_________________________________________________________________

9. For another discussion of the evolution of the medical monitoring

cause of action, see Metro-North R.R. Co. v. Buckley, 521 U.S. 424 (1997).

10. In Paoli I, we predicted the Pennsylvania Supreme Court would

require a party to meet a four-part test to establish a claim for medical

monitoring: (1) plaintiff was significantly exposed to a proven hazardous

substance through the negligent actions of the defendant; (2) as a

proximate result of exposure, plaintiff suffers a significantly increased

risk of contracting a serious latent disease; (3) that increased risk

makes

periodic diagnostic medical examinations reasonably necessary; and (4)

monitoring and testing procedures exist which make the early detection

and treatment of the disease possible and beneficial. Paoli I, 916 F.2d at

852. In Paoli II, we added another element to the claim, holding that a

plaintiff had to show that "a reasonable physician would prescribe for

her or him a monitoring regime different than the one that would have

been prescribed in the absence of that particular exposure." Paoli II, 35

F.3d at 788 (citation omitted).

22

Building on this court's decisions in Paoli I and Paoli II, the

Supreme Court found that plaintiffs must prove the

following elements:

(1) exposure greater than normal background levels; (2)

to a proven hazardous substance; (3) caused by the

defendant's negligence; (4) as a proximate result of the

exposure, plaintiff has a significantly increased risk of

contracting a serious latent disease; (5) a monitoring

procedure exists that makes the early detection of the

disease possible; (6) the prescribed monitoring regime

is different from that normally recommended in the

absence of the exposure; and (7) the prescribed

monitoring regime is reasonably necessary according to

contemporary scientific principles.

Redland, 696 A.2d at 145-46.11

The injury in a cause of action for medical monitoring is

the "costs of periodic medical examinations necessary to

detect the onset of physical harm." Id. at 144; see also

Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746

F.2d 816, 826 (D.C. Cir. 1984) ("It is difficult to dispute

that an individual has an interest in avoiding expensive

diagnostic examinations just as he or she has an interest in

avoiding physical injury."); Hansen v. Mountain Fuel Supply

Co., 858 P.2d 970, 977 (Utah 1993) (citations omitted)

("Although the physical manifestations of an injury may not

appear for years, the reality is that many of those exposed

have suffered some legal detriment; the exposure itself and

the concomitant need for medical testing constitute the

_________________________________________________________________

11. Other jurisdictions have authorized recovery for medical monitoring

in the absence of physical injury. See, e.g., Bourgeois v. A.P. Green

Indus., 716 So.2d 355 (La. 1998); Potter v. Firestone Tire & Rubber Co.,

863 P.2d 795 (Cal. 1993); Hansen v. Mountain Fuel Supply Co., 858 P.2d

970 (Utah 1993); Ayers v. Township of Jackson , 525 A.2d 287 (N.J.

1987). In addition, some federal courts predicting state law have reached

the same conclusion. See Cook v. Rockwell Int'l Corp., 755 F. Supp. 1468

(D. Colo. 1991); Johnson v. Armstrong Cork Co., 645 F. Supp. 764 (W.D.

La. 1986). But see Ball v. Joy Techs., Inc., 958 F.2d 36 (4th Cir. 1991)

(holding that, under the laws of Virginia and West Virginia, recovery of

medical monitoring expenses is only available where a plaintiff has

sustained a physical injury); Werlein v. United States, 746 F. Supp. 887

(D. Minn. 1990).

23

injury."). It is evident that this injury is somewhat different

from an injury in a traditional tort, which rests on physical

harm. See, e.g., Restatement Second of Torts S 402A

(requiring plaintiff to prove in a products liability case

"physical harm" which S 7 defines as "physical impairment

of the human body"); Simmons, 674 A.2d at 237 (denying

plaintiffs recovery other than medical monitoring for

asymptomatic pleural thickening because inter alia

plaintiffs demonstrated no physical injury). In recognizing

medical monitoring as a compensable injury, the

Pennsylvania Supreme Court quoted at length from our

distinction in Paoli I between a cause of action for increased

risk of future harm and a cause of action for medical

monitoring. We concluded that a claim for medical

monitoring is different from a claim for increased risk of

harm because the medical monitoring plaintiff has an

identifiable rather than a speculative injury. Id. at 850-51.

We explained:

The injury in an enhanced risk claim is the anticipated

harm itself. The injury in a (medical monitoring claim

is the cost of the medical care that will, one hopes,

detect that injury. The former is inherently speculative

because courts are forced "to anticipate the probability

of future injury. The latter is much less speculative

because the issue for the jury is the less conjectural

question of whether the plaintiff needs medical

surveillance.

Paoli I, 916 F.2d at 851.12

In Redland, the court cited four important policy reasons

for recognizing a cause of action for medical monitoring.

First, medical monitoring promotes "early diagnosis and

treatment of disease resulting from exposure to toxic

substances caused by a tortfeasor's negligence." Second,

"[a]llowing recovery for such expenses avoids the potential

injustice of forcing an economically disadvantaged person

_________________________________________________________________

12. There is no doubt the costs of medical monitoring are a compensable

portion of a plaintiffs' damages when asserted with other injury claims.

It appears, however, that allowing plaintiffs to recover in the absence of

some injury pushes the limit of the Constitution's case-or-controversy

requirement.

24

to pay for expensive diagnostic examinations necessitated

by another's negligence," and "affords toxic-tort victims, for

whom other sorts of recovery may prove difficult, immediate

compensation for medical monitoring needed as a result of

exposure." Third, medical monitoring "furthers the

deterrent function of the tort system by compelling those

who expose others to toxic substances to minimize risks

and costs of exposure." Finally, such recovery is"in

harmony with `the important public health interest in

fostering access to medical testing for individuals whose

exposure to toxic chemicals creates an enhanced risk of

disease.' " Id. at 145 (citations omitted).

B. Certification

To be certified, a class must satisfy the prerequisites of

Rule 23(a) and the "parties seeking certification must also

show that the action is maintainable under Rule 23(b)(1),

(2), or (3)." Amchem Prods., Inc. v. Windsor, ___ U.S. ___;

117 S. Ct. 2231, 2245 (1997). Plaintiffs seek certification

under 23(b)(2).

As noted, the District Court conditionally certified the

class, stipulating its order could be altered or amended. See

Barnes v. The American Tobacco Co., 176 FRAUD 479 (E.D.

Pa. 1997); Fed. R. Civ. P. 23(c)(1). Under Rule 23(c)(1),

District Courts are required to reassess their class rulings

as the case develops. Kuehner v. Heckler, 778 F.2d 152,

163 (3d Cir. 1985); see also Richardson v. Byrd, 709 F.2d

1016, 1019 (5th Cir. 1983) ("Under Rule 23 the district

court is charged with the duty of monitoring its class

decisions in light of the evidentiary development of the

case. The district judge must define, redefine, subclass, and

decertify as appropriate in response to the progression of

the case from assertion to facts."). In accordance with

23(c)(1), the District Court examined the evidence adduced

for summary judgment purposes and decided to decertify

the class. Barnes, 176 FRAUD at 502.

In considering whether certification is proper, we refrain

from conducting a preliminary inquiry into the merits. See

Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1973)

(citation omitted) (" `In determining the propriety of a class

action, the question is not whether the plaintiff or plaintiffs

25

have stated a cause of action or will prevail on the merits,

but rather whether the requirements of Rule 23 are met.' ")

At the same time, we must carefully examine the factual

and legal allegations. See General Tel. Co. v. Falcon, 457

U.S. 147, 160 (1981) ("[S]ometimes it may be necessary for

the court to probe behind the pleadings before coming to

rest on the certification question."); Coopers & Lybrand v.

Livesay, 437 U.S. 463, 469 (1977) (citation omitted) ("[T]he

class determination generally involves considerations that

are `enmeshed in the factual and legal issues comprising

the plaintiff's cause of action.' ").

1. Fed. R. Civ. P. 23(a)

Rule 23(a) presents four requirements: (1) numerosity; (2)

commonality; (3) typicality; and (4) adequacy of

representation.13 "The requirements of Rule 23(a) are meant

to assure both that class action treatment is necessary and

efficient and that it is fair to the absentees under the

particular circumstances." Baby Neal v. Casey, 43 F.3d 48,

55 (3d Cir. 1994). The District Court determined the class

satisfied Rule 23(a).

Finding the putative class consisted of more than one

million Pennsylvania residents,14 the court held the class

was "so numerous that joinder of all members[is]

impracticable." Fed. R. Civ. P. 23(a)(1). Defendants do not

dispute that numerosity is satisfied.

The District Court also found plaintiffs satisfied the

commonality requirement of Rule 23(a)(2) because they

demonstrated there is at least one common question of law

or fact. See Baby Neal, 43 F.3d at 56 ("The commonality

requirement will be satisfied if the named plaintiffs share at

_________________________________________________________________

13. Specifically, Rule 23(a) provides: "One or more members of a class

may sue or be sued as representative parties on behalf of all only if (1)

the class is so numerous that joinder of all members is impracticable, (2)

there are questions of law or fact common to the class, (3) the claims or

defenses of the representative parties are typical of the claims or

defenses of the class, and (4) the representative parties will fairly and

adequately protect the interests of the class."

14. In defendants' post-hearing memorandum, defendants place the

number of potential class members at 2.8 million.

26

least one question of fact or law with the grievances of the

prospective class.").15 "For example, whether defendants

have acted in concert or pursuant to a common design is

one common question." Arch, 175 FRAUD at 477.16

"The concepts of commonality and typicality are broadly

defined and tend to merge." Baby Neal v. Casey, 43 F.3d at

56 (citation omitted). The typicality requirement is designed

to align the interests of the class and the class

representatives so that the latter will work to benefit the

entire class through the pursuit of their own goals. Id. at

57. This requirement does not mandate that all putative

class members share identical claims. Id. at 56 (citations

omitted). Moreover, "[f]actual differences will not render a

claim atypical if the claim arises from the same event or

practice or course of conduct that gives rise to the claims

of the class members, and if it is based on the same legal

theory." 1 Newberg on Class Actions S 3.15, at 3-78; see

also Baby Neal, 43 F.3d at 58 ("[E]ven relatively

pronounced factual differences will generally not preclude a

finding of typicality where there is a strong similarity of

legal theories.").

_________________________________________________________________

15. In Georgine, the court recognized that Baby Neal and other Third

Circuit cases "stated a very low threshold for commonality." Georgine v.

Amchem Prods. Inc., 83 F.3d 610, 627 (3d Cir. 1996). The court noted

that the "commonality barrier is higher in a personal injury damages

class action, like [Georgine], that seeks to resolve all issues, including

noncommon issues, of liability and damages." Id. Ultimately, the court

did not decide whether that class met the commonality requirement and

concluded instead that "the commonality requirement is subsumed by

the predominance requirement, which this class cannot conceivably

meet." Id. As the District Court noted, in contrast to Georgine, this case

is not a personal injury damages class action, nor does it involve a

settlement class that was national in scope, where class members are

asked to compromise future claims without knowing what those claims

might be. Thus, the District Court did not impose a higher commonality

requirement. See Arch, 175 FRAUD at 476-77.

16. In addition, the District Court found that"whether defendants'

actions and omissions in the manufacture, promotion and sale of

cigarettes to class members have been sufficiently egregious to warrant

the imposition of punitive damages" is also a common question. Arch,

175 FRAUD at 477. Of course, the plaintiffs have since dropped their

demand for punitive damages so this is no longer a common issue.

27

The District Court found plaintiffs met the typicality

requirement. Although defendants had demonstrated there

"exist many individualized questions which arise from the

factual differences between the putative class members'

individual claims, defendants fail[ed] to demonstrate that

the `legal theories of the named plaintiffs potentially conflict

with those of the absentees . . . .' " Arch, 175 FRAUD at 479

(quoting Baby Neal, 43 F.3d at 57). Specifically, the District

Court found:

"Plaintiffs allege that their claims arise from the same

course of conduct undertaken by defendants.

Specifically, plaintiffs have alleged that defendants

have engaged in a concerted course of conduct

whereby defendants have concealed their knowledge of

nicotine's addictive properties and have purposefully

and deliberately emphasized efforts to addict children

and adolescents--resulting in an epidemic pediatric

disease. In this process, plaintiffs allege that these

consumers were involuntar[il]y subject to the

cumulative, repetitive assault of the many different

carcinogens contained in tobacco smoke. Although

plaintiffs' claims may be factually different, plaintiffs

have alleged a course of conduct that has given rise to

plaintiffs' claims which are based upon the same legal

theories, thus satisfying the typicality requirement of

Rule 23(a)(3)."

Arch, 175 FRAUD at 478-79.

Finally, the District Court found that plaintiffs "fairly and

adequately protect the interests of the class." Id. at 480

(quoting Fed. R. Civ. P. 23(a)(4)). The adequacy of

representation requirement encompasses two distinct

inquiries designed to protect the interests of absentee class

members. First, it "tests the qualifications of the counsel to

represent the class." G.M. Trucks, 55 F.3d at 800. Second,

it "serves to uncover conflicts of interest between named

parties and the class they seek to represent." Amchem, 117

S. Ct. at 2250.17

_________________________________________________________________

17. In the District Court, defendants claimed the named plaintiffs were

not adequate class representatives because (1) they have split their

28

2. Fed. R. Civ. P. 23(b)(2)

A class action is maintainable under Rule 23(b)(2) when

"the party opposing the class has acted or refused to act on

grounds generally applicable to the class, thereby making

appropriate final injunctive relief or corresponding

declaratory relief with respect to the class as a whole." Fed.

R. Civ. P. 23(b)(2). Subsection (b)(2) class actions are

"limited to those class actions seeking primarily injunctive

or corresponding declaratory relief." 1 Newberg on Class

Actions S 4.11, at 4-39. The (b)(2) class "serves most

frequently as the vehicle for civil rights actions and other

institutional reform cases that receive class action

treatment." Baby Neal v. Casey, 43 F.3d 48, 58-59 (3d Cir.

1994). Indeed, (b)(2) was "designed specifically for civil

rights cases seeking broad declaratory or injunctive relief

for a numerous and often unascertainable or amorphous

class of persons." 1 Newberg on Class Actions S 4.11, at 4-

39.

As noted, in its June 3, 1997 Order, the District Court

found that under certain circumstances medical monitoring

_________________________________________________________________

causes of action and (2) they may have failed to make a knowing and

voluntary amendment to their complaint. The District Court found these

claims were not "split" or "waived" by the absent class members. In its

August 22, 1997 order, the court found: "the Court has already

determined that the absent class members cannot bring in this putative

class action those claims which have been omitted from the Second

Amended Complaint because those claims are not suitable for class

action treatment. Consequently, there cannot be any`splitting' or `waiver'

by these absent class members: there is no other cause of action they

can bring, or could have brought, in this action, except possibly the

medical monitoring claim set forth in the Second Amended Complaint."

176 FRAUD at 485. In addition, after reviewing plaintiffs' deposition

testimony, the District Court found that the named plaintiffs made a

knowing and voluntary amendment. The court noted that it is

"unrealistic . . . to require the named plaintiffs to have an in-depth

understanding as to the legal theories behind their claim." Instead,

"courts have required the class representatives to actively seek

vindication of his or her rights and engage competent counsel to

prosecute the claims. In this case, named plaintiffs have actively sought

vindication of their rights on a class-wide basis and have engaged

competent counsel to litigate their claims." Id. at 486.

29

could constitute the injunctive relief required by Rule

23(b)(2). Arch, 175 FRAUD at 483. The District Court

initially held that plaintiffs could not be certified under

23(b)(2) because most of the relief they sought was

monetary in nature. Arch, 175 FRAUD at 484. In response

to the court's analysis, plaintiffs amended their complaint

so it contained only a claim for medical monitoring and

asked only for the establishment of a court-supervised

medical monitoring program.

Recently, the Supreme Court reexamined the

requirements for Rule 23 certification in the context of

mass tort class actions. In Amchem Products, Inc. v.

Windsor, ___ U.S. ___; 117 S. Ct. 2231 (1997), the Supreme

Court affirmed our decision in Georgine v. Amchem

Products, Inc., 83 F.3d 610 (3d Cir. 1996), decertifying a

settlement class of claimants exposed to asbestos. As in

this case, the issue in Amchem was "whether [the] proposed

classes [were] sufficiently cohesive to warrant adjudication

by representation." Amchem, 117 S. Ct. at 2249. We found

that cohesiveness lacking and the Supreme Court agreed.

Quoting Judge Becker's opinion, the Court noted: " `Class

members were exposed to different asbestos-containing

products, for different amounts of time, in different ways,

and over different periods . . . . The [exposure-only]

plaintiffs especially share little in common, either with each

other or with the presently injured class members . . . .

They will also incur different medical expenses because

their monitoring and treatment will depend on singular

circumstances and individual medical histories.' " Id. at

2250 (quoting Georgine, 83 F.3d at 626). As we explained,

such factual differences "translate into significant legal

differences. Differences in amount of exposure and nexus

between exposure and injury lead to disparate applications

of legal rules, including matters of causation, comparative

fault, and the types of damages available to each plaintiff."

Georgine, 83 F.3d at 627. We also noted that

"individualized issues can become overwhelming in actions

involving long-term mass torts (i.e. those which do not arise

out of a single accident)." Id. at 628.

While Amchem involved a Rule 23(b)(3) class action, the

cohesiveness requirement enunciated by both this court

30

and the Supreme Court extends beyond Rule 23(b)(3) class

actions. Indeed, a (b)(2) class may require more

cohesiveness than a (b)(3) class. This is so because in a

(b)(2) action, unnamed members are bound by the action

without the opportunity to opt out.

While 23(b)(2) class actions have no predominance or

superiority requirements, it is well established that the

class claims must be cohesive. Discussing the requirements

for 23(b)(2) classes in Wetzel v. Liberty Mutual Insurance

Company, 508 F.2d 239 (3d Cir. 1974), we noted, "[b]y its

very nature, a (b)(2) class must be cohesive as to those

claims tried in the class action. . . . Because of the cohesive

nature of the class, Rule 23(c)(3) contemplates that all

members of the class will be bound. Any resultant

unfairness to the members of the class was thought to be

outweighed by the purposes behind class actions:

eliminating the possibility of repetitious litigation and

providing small claimants with a means of obtaining

redress for claims too small to justify individual litigation."

Id. at 248-49 (citations omitted). In Geraghty v. United

States Parole Commission, 719 F.2d 1199, 1205-06 (3d Cir.

1983) (citation omitted), we again emphasized that a

23(b)(2) class must be cohesive, noting the District Court

has the "discretion to deny certification in Rule 23(b)(2)

cases in the presence of `disparate factual circumstances.' "

See also Santiago v. City of Philadelphia, 72 FRAUD 619,

628 (E.D. Pa. 1976) (holding that a "court should be more

hesitant in accepting a (b)(2) suit which contains significant

individual issues than it should under subsection 23(b)(3)");

Rice v. City of Philadelphia, 66 FRAUD 17, 20 (E.D. Pa.

1974) (holding that a case should not proceed as a (b)(2)

action where "virtually all of the issues would have to be

litigated individually in order to determine whether a

particular alleged class member was entitled to any

damages at all").18

_________________________________________________________________

18. "At base, the (b)(2) class is distinguished from the (b)(3) class by

class cohesiveness. . . . Injuries remedied through (b)(2) actions are

really group, as opposed to individual injuries. The members of a (b)(2)

class are generally bound together through `preexisting or continuing

legal relationships' or by some significant common trait such as race or

gender." Holmes v. Continental Can Company, 706 F.2d 1144, 1155

(11th Cir. 1983) (quoting Note, Notice in Rule 23(b)(2) Class Actions for

Monetary Relief: Johnson v. General Motors Corp., 128 U.Pa.L.Rev. 1236,

1252-53 (1980) (footnotes omitted).

31

In Santiago, the court recognized two reasons why courts

must determine whether a proposed (b)(2) class implicates

individual issues. First, unnamed members with valid

individual claims are bound by the action without the

opportunity to withdraw and may be prejudiced by a

negative judgment in the class action. "Thus, the court

must ensure that significant individual issues do not

pervade the entire action because it would be unjust to

bind absent class members to a negative decision where the

class representatives's claims present different individual

issues than the claims of the absent members present."

Second, "the suit could become unmanageable and little

value would be gained in proceeding as a class action . . .

if significant individual issues were to arise consistently."

Santiago, 72 FRAUD at 628.

In decertifying the class, the District Court decided that

"too many individual issues exist which prevent this case

from proceeding as a class action." Barnes, 176 FRAUD at

500. As noted, the District Court found that addiction,

causation, and affirmative defenses all presented individual

issues not properly decided in a class action. We believe

that addiction, causation, the defenses of comparative and

contributory negligence, the need for medical monitoring

and the statute of limitations present too many individual

issues to permit certification. As in Amchem, plaintiffs were

"exposed to different . . . products, for different amounts of

time, in different ways, and over different periods." See

Amchem, 117 S. Ct. at 2250 (citation omitted). These

disparate issues make class treatment inappropriate.19

_________________________________________________________________

19. We note that the individual issues raised by cigarette litigation

often

preclude class certification. See, e.g., Castano v. The American Tobacco

Co., 84 F.3d 734 (5th Cir. 1996) (decertifying 23(b)(3) class because

individual issues predominated); Smith v. Brown & Williamson Tobacco

Corp., 174 FRAUD 90 (W.D. Mo. 1997) (denying certification under

23(b)(1), (2) & (3) because of the presence of individual issues); Ruiz v.

The American Tobacco Co., No. 96-2300 (JAF) (D.P.R. March 17, 1998)

(denying certification under 23(b)(2) and 23(b)(3) because "cigarette

addiction" claims raised too many individual issues). Significantly, no

federal appeals court has upheld the certification a class of cigarette

smokers or reversed a District Court's refusal to certify such a class. In

some state cases, however, plaintiff smokers have succeeded in

32

a. Nicotine addiction and causation

The District Court found nicotine addiction plays a

central role in the case and that addiction is a "highly

individualistic inquiry." Barnes, 176 F.R.D. at 500. The

District Court noted that when plaintiffs were "compelled to

discuss the substantive issues in the case on defendants'

motion for summary judgment, [they] primarily focused on

`addiction' and purported nicotine `manipulation. . . .' " Id.

While plaintiffs do not seem to dispute that addiction

requires an individual inquiry, they maintain nonetheless

that addiction plays no part in the case.

Plaintiffs contend that throughout the litigation, they

have

asserted that defendants' knowledge and intentional

misuse of the addictive properties of nicotine--their

intentional design of cigarettes to contain a level of

nicotine they knew would be addictive--went to their

intentional misconduct and liability for designing a

defective product. Plaintiffs do not contend that all

smokers are addicted, that addiction is a pre-requisite

to class membership, or that addiction is determinant

of a need for medical monitoring. Addiction is a term

and concept that is difficult to avoid in any smoking

case. The documents show that defendants intended

and designed cigarettes to be addictive. That they have

largely succeeded may be all too apparent. But the

addiction of any particular smoker--much less the

class as a whole--is simply not an element of plaintiffs'

claims.

Brief of Appellant at 41.

We disagree. Addiction remains an essential part of

plaintiffs' claim. In order to prevail on their medical

_________________________________________________________________

certification. See Richardson v. Phillip Morris, No. 96145050/CE212596

(Baltimore Cir. Ct. Jan. 28, 1998) (certifying class of Maryland smokers

seeking compensatory and punitive damages); R.J. Reynolds Tobacco Co.

v. Engle, 672 So.2d 39 (Fla. App. 3 Dist. 1996), rev. denied, 682 So.2d

1100 (1996) (certification of state-wide class of tobacco smokers suing

for damages caused by smoking).

33

monitoring claim--under any of their three theories of

liability (negligence, strict products liability, and intentional

exposure to a hazardous substance)--plaintiffs must

demonstrate that defendants caused their exposure to

tobacco. See Redland, 696 A.2d at 145-46. Indeed,

plaintiffs' Second Amended Complaint alleges "[p]laintiffs

and class members have been significantly exposed to

proven hazardous substances through the intentional or

negligent actions of the Defendants, and/or through

defective products for which Defendants are strictly liable"

and that "[a]s a proximate result of this exposure, Plaintiffs

and class members suffer significantly increased risks of

contracting serious latent diseases." Second Amended

Complaint PP 20-21.

It is apparent from plaintiffs' Second Amended Complaint

as well as their omnibus response to the defendants' joint

motions for summary judgment that addiction is the

linchpin of causation in this case. According to plaintiffs'

complaint, defendants' actions that give rise to liability

include the following:

- Defendants have . . . known for many years that

nicotine is addictive, but have publicly denied both

the fact that nicotine is addictive and their

knowledge of this fact, in order to conceal the

addictive nature of cigarettes from the public,

including Plaintiffs and the class. . . .

- During the same time that Defendants have

publicly denied the addictive nature of nicotine,

Defendants have intentionally controlled the level of

nicotine and other toxic substances they have sold,

in order to preserve the dependence of smokers on

cigarettes that Defendants sell. To this end,

Defendants have utilized additives such as

ammonia, as well as designs for which Defendants

have sought patents, to make cigarettes, in effect, a

"package" for the delivery of nicotine. Defendants

have intentionally sought to "increase the delivery of

nicotine and almost double the nicotine transfer

efficiency of cigarettes," maintain "the proper

amount of nicotine in tobacco smoke," and "deliver

34

a pharmacologically active dose of nicotine to the

smoker."

- During the same period of time, despite this

voluntary and public undertaking to protect the

public's "health as a basic responsibility paramount

to every other consideration," Defendants have also

intentionally avoided researching or developing

cigarettes that would not cause dependence or

addiction in those who use them.

- In their efforts to conceal the health hazards of

smoking and the addictive nature of nicotine,

Defendants have testified falsely under oath before

the United States Congress, provided false

explanations to customers and governmental

entities about the health hazards of tobacco and the

harmful qualities of nicotine; concealed their secret

research and testing on the dangers of cigarette

smoking; [and] concealed their deliberate

manipulation of the nicotine levels of cigarettes. .. .

Plaintiffs' Second Amended Complaint PP 12-14, 16.

Moreover, as the District Court pointed out, in their

omnibus response to the defendants' joint motions for

summary judgment, plaintiffs focused on addiction and

purported nicotine manipulation. Plaintiffs asserted the

evidence will establish inter alia that (1) defendants

intentionally designed cigarettes to addict smokers; (2)

defendants allowed the number of addicted smokers to

grow, knowing full well that the smoke caused cancer and

lung disease; and (3) defendants intentionally manipulated

and controlled nicotine levels. As we understand plaintiffs'

theory, defendants' actions caused plaintiffs to become

addicted to cigarettes and thereby rendered their choice to

smoke nonvoluntary.

Plaintiffs suggest that causation can be proved on a

class-wide basis, contending they need to show only that

smoking cigarettes was a "substantial factor" in "causing"

the three diseases to be monitored in the program. See

Parks v. AlliedSignal, Inc., 113 F.3d 1327, 1332 (3d Cir.

1997) (under Pennsylvania law, a "substantial factor" is

legal cause, and requires only proof that a factor is "not

35

merely negligible" in producing a result). Plaintiffs point to

the Surgeon General's Reports conclusively determining

that cigarette smoking is the major cause of the diseases

for which the medical monitoring program was constructed.

This evidence, they claim, more than satisfies their burden

on the issue of causation.

But plaintiffs cannot prove causation by merely showing

that smoking cigarettes causes cancer and other diseases.

They must demonstrate that defendants' intentional or

negligent nicotine manipulation caused each individual

plaintiff to have a significantly increased risk of contracting

serious latent diseases thereby demonstrating the need for

medical monitoring. Alternatively, under a strict products

liability theory, as the District Court found, "each class

member will have to establish that the type of cigarettes he

or she smoked contained a defect at the time he or she

smoked them." Barnes, 176 F.R.D. at 501 (citation

omitted). According to plaintiffs, the alleged defect is that

defendants intentionally designed these cigarettes to be

addictive. But whether defendants caused the injury

depends on whether each individual actually is addicted.

These are all issues that must be determined on an

individual basis.

We note that plaintiffs do not contest the District Court's

conclusion that "whether or not an individual is addicted is

a highly individualistic inquiry." Barnes, 176 F.R.D. at 500.

Instead, plaintiffs suggested to the District Court that once

the general issue whether cigarettes can cause addiction is

resolved, they could resolve the issue of individual

addiction by having each class member answer a

questionnaire consisting of six questions.20 The District

Court noted that

even if the questionnaire were used to determine

nicotine dependence, defendants would be permitted to

cross-examine each and every class member as to their

_________________________________________________________________

20. On appeal, plaintiffs refer only sparingly to their proposed trial

plan.

At one point in their brief, however, plaintiffs suggest the District

Court

erred when it "did not refer or consider plaintiffs' proposed trial plan

at

all in decertifying the class" because of the many individual issues. But

the District Court clearly considered the plan and found it inadequate.

36

alleged dependence. Plaintiffs admittedly acknowledge

that the plan they propose would be, at most, a prima

facie indication of addiction. Plaintiffs' own (experts

concede that addiction is necessarily an individual

inquiry. To refute plaintiffs' prima facie case,

defendants would be permitted to cross-examine each

individual about his specific choices, decisions and

behavior, and defendants would be entitled to offer

expert testimony about each person's specific

circumstances and diagnosis.

Arch, 175 F.R.D. at 488.

Because nicotine addiction must be determined on an

individual basis and remains an essential part of plaintiffs'

medical monitoring claim, we agree with the District Court

that class treatment is inappropriate.

b. The need for medical monitoring

We also believe the requirement that each class member

demonstrate the need for medical monitoring precludes

certification. In order to state a claim for medical

monitoring, each class member must prove that the

monitoring program he requires is "different from that

normally recommended in the absence of exposure."

Redland, 696 A.2d at 146.21 To satisfy this requirement,

each plaintiff must prove the monitoring program that is

prescribed for the general public and the monitoring

program that would be prescribed for him. Although the

general public's monitoring program can be proved on a

classwide basis, an individual's monitoring program by

definition cannot. In order to prove the program he

_________________________________________________________________

21. See also Paoli II, 35 F.3d at 788; Arch, 175 F.R.D. at 490 ("The fact

that [Barnes] smokes would not require any additional monitoring for

heart disease not already warranted by the multiple, significant risk

factors for heart disease he already has."); Hansen v. Mountain Fuel

Supply Co., 858 P.2d 970, 979-80 (Utah 1993); Supplemental

Declaration of David Burns, M.D. ("Exercise stress testing and an EKG

would not normally be recommended for nonsmokers at the ages

recommended in the proposed monitoring program, unless they had

some other risk factor that placed them at dramatically increased risk of

disease.").

37

requires, a plaintiff must present evidence about his

individual smoking history and subject himself to cross-

examination by the defendant about that history. This

element of the medical monitoring claim therefore raises

many individual issues.

c. Defenses

The District Court also held that defenses raise individual

issues precluding certification. Over plaintiffs' objection, the

District Court found defendants may assert the defenses of

contributory negligence, assumption of risk, and consent to

exposure to a hazardous substance. Barnes, 984 F. Supp.

at 867-69.22 After reviewing Pennsylvania caselaw, the

District Court concluded

First, legal defenses do not become equitable defenses

simply because they are asserted in an action in

equity. Second, equitable principles such as the

doctrine of unclean hands may not be used to deprive

a defendant of legal rights--remedies or defenses.

Applying these lessons, the Court finds that defendants

have a legitimate right to raise the legal defenses of

contributory negligence, assumption of risk and

consent.

Barnes, 984 F. Supp. at 866. The court noted this suit was

not purely equitable but instead "implicates both legal and

equitable rights" making it "even less appropriate for [the

court] to exercise its equitable powers to bar defendants

from asserting its affirmative, legal defenses." Id.

As noted, plaintiffs asserted three theories of liability.

They claimed that they were significantly exposed to proven

hazardous substances through defendants' intentional

actions, negligent actions, and defective products (strict

_________________________________________________________________

22. Defendants moved for summary judgment against Ciaran McNally,

William Barnes, and Catherine Potts on the grounds that their claims

were barred by contributory negligence, assumption of risk, and consent

to exposure to a hazardous substance. Barnes, 984 F. Supp. at 864. The

District Court only considered the defendants' arguments against

McNally because it entered summary judgment against Barnes and Potts

on statute of limitations grounds.

38

liability). Defendants assert the defenses of consent,

comparative negligence, and assumption of risk. Plaintiffs

contend that these defenses are not available and that

individual issues relating to these defenses should not

preclude class certification. Plaintiffs maintain that

"comparative negligence" is only available in actions for

damages resulting in death or injury, that assumption of

risk is not available because the defendants will not be able

to show that any plaintiff assumed the risk of the specific

defect, and that consent requires a full awareness of

defendants' specific conduct and there is no record

evidence of such awareness in this case.

The District Court found defendants could raise the

defense of comparative negligence, predicting the

Pennsylvania Supreme Court would apply Pennsylvania's

Comparative Negligence Act23 rather than contributory

negligence to a medical monitoring claim. See Barnes, 984

F. Supp. at 867-68. Although acknowledging that the

Comparative Negligence Act expressly applies to"actions

brought to recover damages for negligence resulting in

death or injury to person or property," and that plaintiffs

seek a court-supervised monitoring program, the District

Court found "[t]he application of the Comparative

_________________________________________________________________

23. 42 Pa. Cons. Stat. S 7102 provides:

(a) General rule.--In all actions brought to recover damages for

negligence resulting in death or injury to person or property, the fact

that the plaintiff may have been guilty of contributory negligence shall

not bar a recovery by the plaintiff or his legal representative where such

negligence was not greater than the causal negligence of the defendant

or defendants against whom recovery is sought, but any damages

sustained by the plaintiff shall be diminished in proportion to the

amount of negligence attributed to the plaintiff.

(b) Recovery against joint defendant; contribution.--Where recovery

is allowed against more than one defendant, each defendant shall be

liable for that proportion of the total dollar amount awarded as damages

in the ratio of the amount of his causal negligence to the amount of

causal negligence attributed to all defendants against whom recovery is

allowed. The plaintiff may recover the full amount of the allowed recovery

from any defendant against whom the plaintiff is not barred from

recovery. Any defendant who is so compelled to pay more than his

percentage share may seek contribution.

39

Negligence Act to these claims would more properly

advance the goals of the Redland Soccer court, and would

also adequately protect the rights of defendants." Barnes,

984 F. Supp. at 867-68. The District Court reasoned that

plaintiffs could have requested lump sum damages which

would have clearly invoked the Comparative Negligence Act;

that plaintiffs asked for equitable relief instead of damages

is not dispositive. Furthermore, because Redland expressly

encouraged the use of medical monitoring funds, 696 A.2d

at 142 n.6, the District Court predicted the Pennsylvania

Supreme Court would not apply the "harsh" and

"anachronistic doctrine of contributory negligence" to

medical monitoring claims seeking equitable relief. Barnes,

984 F. Supp. at 868.

We need not decide whether the Pennsylvania Supreme

Court would apply the Comparative Negligence Act to

plaintiffs' negligence claim. If the Comparative Negligence

Act does not apply, defendants still have the defense of

contributory negligence available to them. See

Commonwealth Fed. Sav. and Loan Assoc. v. Pettit, 586

A.2d 1021, 1026 (Pa. Comm. Ct. 1991) ("The doctrine of

contributory negligence continues to be applicable to

situations where both parties are negligent but the

resulting injury is not covered under the Pennsylvania

Comparative Negligence Act.").24 Either defense will raise

many individual issues.25

Under Pennsylvania law, the tort of intentional exposure

to hazardous substances is predicated on a theory of

battery. See Field v. Philadelphia Elec. Co., 565 A.2d 1170,

1178 (Pa. Super. Ct. 1989). Plaintiffs must prove as a

constituent element they did not consent to the tortious

_________________________________________________________________

24. For purposes of our certification inquiry, we need not decide whether

these defenses bar plaintiffs' recovery. Instead, we merely conclude that

one of these defenses is available to the defendants.

25. We acknowledge that the existence of affirmative defenses as to some

class members may not by itself enough warrant the denial of

certification. See Merk v. Jewel Food Stores Div., Jewel Companies, Inc.,

702 F. Supp. 1391, 1395 (E.D. Ill. 1988); Lorber v. Beebe, 407 F. Supp.

279, 294 (S.D.N.Y. 1975). But we note that the defenses are only one of

many matters raising individual issues in this case.

40

conduct. See Levenson v. Souser, 557 A.2d 1081, 1088 (Pa.

Super. Ct. 1989); Prosser & Keeton S 18, at 113 ("Consent

avoids recovery simply because it destroys the wrongfulness

of the conduct as between the consenting parties, however

harmful it might be to the interests of others.");

Restatement (Second) Torts S 892A ("One who effectively

consents to the conduct of another intended to invade his

interests cannot recover in an action of tort for the conduct

or for the harm resulting from it.") Express consent may be

given by words or affirmative conduct and implied consent

may be manifested when a person takes no action,

indicating an apparent willingness for the conduct to occur.

Restatement (Second) Torts S 892 cmt. b & c. The consent

must be to the "defendant's conduct, rather than to its

consequences." Prosser & Keeton S 18, at 118. A plaintiff's

consent is not effective if "the consenting person was

mistaken about the nature and quality of the invasion

intended by the conduct." Prosser & Keeton S 18, at 114.

Plaintiffs argued in the District Court that the court

should use its equitable powers to bar defendants from

asserting their affirmative defenses because of defendants'

intentional and fraudulent conduct. See Barnes, 984 F.

Supp. at 864-65. But the District Court rejected this

argument and plaintiffs do not press it on appeal. Instead,

plaintiffs argue there is no record evidence they consented

to defendants' specific conduct. Defendants maintain

plaintiffs knew they were exposing themselves to a

hazardous substance yet continued to smoke. There is

some evidence on the record, including plaintiffs' own

deposition testimony, to support defendants' position that

despite warnings, plaintiffs continued to smoke. See id. ("By

her own admission, Potts learned `for sure' that cigarette

smoking created an increased risk of disease in 1966, when

the Surgeon General's warnings were put on cigarette

packages. In addition, and more importantly, Ms. Potts was

informed by her cardiologist in the late 1980s that she was

at a significantly increased risk of contracting heart

disease, in the form of clogged arteries, from smoking.").

Under Pennsylvania law, plaintiffs may recover on a

theory of strict liability where a product in a defective

condition unreasonably dangerous to the consumer or user

41

causes harm to the plaintiff. See Spino v. John S. Tilley

Ladder Co., 696 A.2d 1169, 1172 (Pa. 1997). Plaintiff must

prove the product was defective and the defect was a

substantial factor in causing the injury. See id. While a

defendant may not assert comparative negligence in a strict

products liability action, see Kimco Development Corp. v.

Michael D's Carpet Outlets, 637 A.2d 603, 606-07 (Pa.

1993), Pennsylvania courts allow defendants to introduce

"evidence of a plaintiff's voluntary assumption of the risk,

misuse of a product, or highly reckless conduct . . . insofar

as it relates to the element of causation." Charlton v. Toyota

Indus. Equip., 714 A.2d 1043, 1047 (Pa. Super. Ct. 1998).

To demonstrate that a plaintiff's actions are highly

reckless, defendants must show plaintiff "knew or had

reason to know of facts which created a high degree of risk

of physical harm to himself or that he deliberately

proceeded to act, or failed to act, in conscious disregard of

that risk." Id. (citation omitted).

Assumption of risk is also available in negligence claims.

See Kaplan v. Exxon Corp., 126 F.3d 221, 224-25 (3d Cir.

1997).26 In a negligence action, a defendant is relieved of

his duty to protect the plaintiff when the plaintiff was aware

of the risk and faced it voluntarily. See Barrett v. Fredavid

Builders, Inc., 685 A.2d 129 (Pa. Super. Ct. 1996). The

defendant must show that the "nature and extent" of the

risk were "fully appreciated" and that the plaintiff

voluntarily proceeded to face that risk. Childers v. Power

Line Equip. Rentals, Inc., 681 A.2d 201, 208 (Pa. Super. Ct.

1996).

Plaintiffs make essentially the same arguments regarding

consent and assumption of risk, contending that because

defendants concealed the nature and extent of their

_________________________________________________________________

26. In light of Pennsylvania's adoption of comparative negligence, see 42

Pa. Cons. Stat. Ann. S 7102(a), the existence of the assumption of the

risk defense under Pennsylvania law is a matter of some debate. See

Kaplan v. Exxon Corp., 126 F.3d 221, 223-25 (3d Cir. 1997). In Kaplan,

we predicted the Pennsylvania Supreme Court would incorporate

assumption of the risk into the duty analysis. Therefore, it is a

plaintiff's

burden to establish that a defendant has a duty. This issue goes to the

jury "unless reasonable minds could not differ." Id. at 225 (citation

omitted).

42

conduct, no plaintiff can have consented to or assumed the

risks of cigarette smoking. Therefore, consent and

assumption of risk present no individual issues and can be

resolved on a classwide basis. We are inclined to believe

that individual considerations predominate here as well,

but recognize that the question is a close one. Therefore we

do not rely on the presence of individual issues with the

defenses of consent and assumption of risk in reaching our

decision to affirm class decertification. But we note other

courts have permitted cigarette companies to assert

affirmative defenses such as contributory negligence and

assumption of risk. See Cipollone v. Liggett Group, Inc., 893

F.2d 541, 559 (3d Cir. 1990), aff'd in part, rev'd in part,

505 U.S. 504 (1992) (remanded for jury to consider

comparative fault issues); Horton v. The American Tobacco

Co., 667 So.2d 1289, 1292 (Miss. 1995) (jury considered

comparative fault and held that plaintiff was solely

responsible for his injury); Gilboy v. The American Tobacco

Co., 582 So.2d 1263, 1265 (La. 1991) (recognizing

assumption of risk defense).27

d. Statute of Limitations

Finally, we believe that determining whether each class

member's claim is barred by the statute of limitations

raises individual issues that prevent class certification.28 It

is fundamental that a plaintiff must bring a claim before

the applicable statute of limitations expires. Determining

whether the statute of limitations has expired necessarily

involves determining when it began to run. Under

Pennsylvania law, the statute of limitations starts running

when the plaintiff's cause of action accrues; a medical

_________________________________________________________________

27. But see Wilks v. The American Tobacco Co., 680 So. 2d 839, 843

(Miss. 1996) ("[We] find that the trial court properly struck the defense

of assumption of the risk. . . . Even if it was a viable defense, it may

not

be employed unless the defendant admits the existence of a risk.

[American Tobacco] firmly denied that smoking was hazardous to one's

health.")

28. We discuss our rationale for applying the statute of limitations

rather

than laches in affirming the grant of summary judgment against the

named plaintiffs. For now, we describe only how the statute of

limitations applies to the class.

43

monitoring claim accrues when the plaintiff suffers a

"significantly increased risk of contracting a serious latent

disease." Redland, 696 A.2d at 145. Under plaintiffs'

analysis, a cigarette smoker suffers this risk when he

reaches the ten or twenty "pack-year" level. A "pack-year" is

equivalent to a year in which a person smokes a pack of

cigarettes per day. To calculate a particular plaintiff's pack-

year history, the court multiplies the number of packs of

cigarettes the plaintiff smokes daily by the number of years

he has smoked. For example, a person who has smoked a

pack of cigarettes each day for twenty years has a twenty-

pack year history; a person who has smoked a half a pack

per day for twenty years has a ten pack-year history. Under

the pack-year approach to claim accrual, determining when

a plaintiff's claim accrued necessitates two individual

inquiries for each plaintiff: when he began smoking and

how much he has smoked since then. The need to conduct

such a determination for each plaintiff augurs that a class

action will devolve into a lengthy series of individual trials

and therefore makes a class action an improper method for

resolving these claims.

Because of the individual issues involved in this case--

nicotine addiction, causation, the need for medical

monitoring, contributory/comparative negligence and the

statute of limitations--we believe class treatment is

inappropriate.29

C. Summary Judgment

Having concluded the District Court did not abuse its

_________________________________________________________________

29. In support of certification, plaintiffs point to other medical

monitoring claims that have been certified under Rule 23(b)(2) or

23(b)(3). See, e.g., Gibbs v. E.I. Dupont de Nemours & Co., 876 F. Supp.

475 (W.D.N.Y. 1995) (exposure to chemicals); Yslava v. Hughes Aircraft

Co., 845 F. Supp. 705, 713 (D. Ariz. 1993) (class alleging long-term

exposure to contaminated ground water certified); Boggs v. Divested

Atomic Corp., 141 F.R.D. 58, 67 (S.D. Ohio 1991) (long term exposure to

radioactive materials and hazardous waste). Plaintiffs' case, however,

presents numerous individual issues not involved in those cases. In

addition, the cases plaintiffs cite all involve involuntary exposure to

hazardous materials rather than the voluntary exposure involved in this

case.

44

discretion in decertifying the class, we now turn to its order

granting summary judgment against the six named

plaintiffs. The court held the claims of five of the six

plaintiffs--Barnes, Potts, Rodweller, Salzman and Slivak--

were barred by the statute of limitations. Because each has

smoked for over thirty years, the court found they knew

long before this suit was filed that smoking cigarettes put

them at an increased risk of contracting a serious disease.

See Barnes, 984 F. Supp. at 861-63. The court held the

sixth plaintiff, Ciaran McNally, was not barred by the

statute of limitations because, given her age and smoking

history, her claims for monitoring did not accrue more than

two years before this action was brought. Id. at 861 n. 14,

864. But the court held that McNally had no cause of

action for medical monitoring because the only monitoring

she sought--routine physical examinations and

cardiovascular risk assessment--was not different from that

normally recommended in the absence of her particular

exposure. See id. at 872.

We will briefly set forth the medical and smoking history

of the named plaintiffs, as summarized by the District

Court:

Norma Rodweller has high cholesterol and a family

history of heart disease. She has been diagnosed with

vocal chord polyps and COPD, and has shown

abnormalities in pulmonary function tests. She has

also been tested for potential coronary insufficiency.

She nevertheless continues to smoke despite having

been told by doctors that smoking aggravates her

medical illnesses. She has also refused her doctor's

directions to obtain necessary medical screening such

as pap smears and mammograms.

Ciaran McNally is 26 years old. She has been a

regular smoker since she was 15 years old and smokes

10-15 cigarettes per day. She received chest x-rays

when appropriate in response to symptoms. She has

not followed her doctors' advice to quit smoking while

taking oral contraceptives.

William Barnes is mildly obese with hypertension

and elevated cholesterol. He has a history of coronary

45

artery disease, and he has been diagnosed with

hypertensive atherosclerotic heart diseases. He is also

a heavy drinker. He has received EKGs, chest x-rays,

and pulmonary function testing as appropriate in

response to symptoms. He has been told to quit

smoking every time he visited his doctor, and

continues to smoke despite evidence of fibrosis of his

lung.

Catherine Potts has been diagnosed with COPD,

coronary heart disease, angina, hyperlipidemia, and

hypertension. She continues to smoke despite being

advised by her doctors to cease due to cardiac

problems and a potential vocal chord malignancy. She

has not followed her doctor's directions for testing,

including a recommended colonoscopy following rectal

bleeding. On one occasion, she insisted on being

discharged from the hospital against medical advice

after being diagnosed with possible myocardial

infarction. She continues to drink caffeinated beverages

despite being advised by doctors to cease doing so.

Edward Slivak has continued smoking despite

abnormal pulmonary function tests and abnormal

chest x-rays leading to a diagnosis of COPD. He has

high blood pressure and elevated cholesterol, has

received EKGs, and has been diagnosed with

myocardial infarction. Although he has been advised

repeatedly not to smoke due to his various medical

conditions, he is still smoking.

Barbara Salzman continues to smoke despite having

been diagnosed with emphysema and mild to moderate

COPD based on pulmonary function tests and chest x-

rays. She has received chest x-rays, MRI scans, and

EKGs in response to her symptoms. She has not,

however, mentioned her emphysema to her family

physician, explaining that she does not desire to follow-

up because "I don't like to look for trouble." She drinks

an excessive amount of caffeine and has a family

history of heart disease.

Barnes, 984 F. Supp. at 854.

46

1. Statute of Limitations

Looking to the underlying theories of liability--intentional

tort, negligence, and strict products liability--the District

Court applied a two-year statute of limitations,finding the

claims accrued on the date when the plaintiffs were placed

at a "significantly increased risk of contracting a serious

latent disease." See Redland, 696 A.2d at 145. Plaintiffs

faced this risk when, according to their experts' testimony,

they had smoked for twenty pack-years. Rodweller reached

this level in 1970, Salzman in 1976, Slivak in 1978, Barnes

in 1990, and Potts in 1973. Therefore the court held the

claim of each named plaintiff was barred by the statute of

limitations. The court also found the discovery rule could

not save plaintiffs' claims because each knew or should

have known that smoking put him or her at a significantly

increased risk of contracting a serious latent disease years

before this lawsuit was filed. See Barnes, 984 F. Supp. at

863-64.

Plaintiffs contend the equitable doctrine of laches should

apply, arguing their medical monitoring claim is analogous

to a suit for nuisance abatement based in equity. Citing

Simmons v. Pacor, 674 A.2d 232 (Pa. 1996) and Redland,

plaintiffs maintain the Pennsylvania Supreme Court implied

it would not apply the statute of limitations to a medical

monitoring claim based on long-term exposure.30 But we

discern no detectable direction from the Pennsylvania

Supreme Court that it would apply laches rather than the

statute of limitations.

As the District Court found, plaintiffs could have brought

their claim at law or in equity depending on the type of

relief sought.

_________________________________________________________________

30. Plaintiffs point to the following language. In Simmons, the court

found that "recovery for medical monitoring is appropriate and just" and

that though plaintiffs' experts had recommended medical monitoring,

plaintiff had "unfortunately" not sought the relief in the lawsuit. Id. at

240. In Redland, the Court opined that "a medical monitoring trust fund

is a more appropriate remedy than lump sum damages in mass exposure

toxic tort cases. However, because the Redland Plaintiffs are seeking only

a medical monitoring trust fund, we offer no opinion whether lump sum

damages are recoverable under HSCA." Redland, 696 A.2d at 142-43

n.6.

47

If plaintiffs seek relief that is a disguised request for

compensatory (damages, then the medical monitoring

claim can only be characterized as a claim for

monetary damages. In contrast, if plaintiffs seek the

establishment of a court-supervised medical

monitoring program through which the class members

will receive periodic medical examinations, then

plaintiffs' medical monitoring claims can properly be

characterized as a claim seeking injunctive relief.

Arch, 175 F.R.D. at 483. Plaintiffs themselves apparently

believed their claim for medical monitoring seeks a legal

remedy since both their original and first amended

complaints requested money damages.

Because plaintiffs could have brought their medical

monitoring claim at law or in equity, the statute of

limitations, not the doctrine of laches, applies. "[I]t is well

established that equity will frequently follow the statute of

limitations which controls analogous proceedings at law.

This is especially, if not invariably, true if the cause of

action is not exclusively cognizable in equity, which is the

situation here . . . ." Ebbert v. Plymouth Oil Co., 34 A.2d

493, 495-96 (Pa. 1943). Similarly, in Algrant v. Evergreen

Valley Nurseries, Ltd., 126 F.3d 178, 181 (3d Cir. 1997)

(citations omitted), we stated: "It is settled . . . that where

legal and equitable claims coexist, equitable remedies will

be withheld if an applicable statute of limitations bars the

concurrent legal remedy." Because plaintiffs could have

sought an award of damages, their decision to pursue a

claim for a medical monitoring fund instead cannot deprive

defendants of the statute of limitations defense. Statutes of

limitations are primarily designed to assure fairness and

"promote justice by preventing surprises through the revival

of claims that have been allowed to slumber until evidence

has been lost, memories have faded, and witnesses have

disappeared. The theory is that even if one has a just claim

it is unjust not to put the adversary on notice to defend

within the period of limitation and that the right to be free

of stale claims in time comes to prevail over the right to

prosecute them." Order of R.R. Telegraphers v. Railway

Express Agency, Inc., 321 U.S. 342, 348-49 (1944); see also

Carey v. Kerr-McGee Chem. Corp., 999 F. Supp. 1109 (N.D.

48

Ill. 1998) (holding medical monitoring claims barred by two-

year tort statute of limitations).

In predicting what statute of limitations the Pennsylvania

Supreme Court would apply, we look to the theories of

liability that underlie a medical monitoring claim. Under

Redland, a plaintiff must prove that he was exposed to a

proven hazardous substance as a result of the defendant's

negligence. See Redland, 696 A.2d at 145-46. In

Pennsylvania, a two-year statute of limitations applies to

negligence actions. See 42 Pa. Cons. Stat. Ann. S 5524. As

noted, plaintiffs also allege intentional exposure to a

hazardous substance and strict liability for manufacturing

a defective product. To the extent that strict products

liability or an intentional tort can act as the underlying

theory of liability for a medical monitoring claim, the

applicable statute of limitations would still be two years.

See 42 Pa. Cons. Stat. Ann. S 5524.31

Next we must decide when plaintiffs' claims accrued.

Generally, a plaintiff "is under a duty to use all reasonable

diligence to be properly informed of the facts and

circumstances upon which a potential right of recovery is

based and to institute suit within the prescribed statutory

period." Pocono Int'l Raceway, Inc. v. Pocono Produce, 468

A.2d 468, 471 (Pa. 1983). A claim under Pennsylvania law

accrues at "the occurrence of the final significant event

necessary to make the claim suable." Mack Trucks, Inc. v.

Bendix-Westinghouse Automotive Air Brake Co., 372 F.2d

18, 20 (3d Cir. 1966).

A plaintiff's medical monitoring cause of action accrues

when he has been placed at a "significantly increased risk

of contracting a serious latent disease." Redland, 696 A.2d

at 145. To determine when that event occurred, we refer to

the testimony of plaintiffs' experts. As the District Court

noted, their experts proposed specific dates when plaintiffs

_________________________________________________________________

31. In Redland, the Pennsylvania Supreme Court held that "medical

monitoring" plaintiffs must prove that defendant's negligence caused the

exposure. See Redland, 696 A.2d at 146. We assume without deciding

that the Pennsylvania Supreme Court would allow an intentional tort or

strict products liability to be the underlying theory of liability in a

claim

for medical monitoring.

49

would be entitled to participate in the proposed medical

monitoring program. Under the Petty-Hyers Program, a

plaintiff would be entitled to medical monitoring when he or

she reaches the "twenty pack-year" level. 32

We agree with the District Court that five of the six

named plaintiffs reached that level more than two years

ago. Rodweller had been smoking one to one-and-a-half

packs since 1953 and became a twenty pack-year smoker

in 1970. Salzman had been smoking at least one-and-a-half

packs per day for forty-one years and her claim accrued, at

the latest, in 1976. Slivak had been smoking at least one to

two packs per day for thirty-nine years and his claim

accrued, at the latest, in 1978. Barnes had been smoking

a pack a day since 1970 and his claim accrued in 1990.

Potts had been smoking a pack a day since the early 1950s

and her claim accrued no later than 1975.

Absent an exception to the statute of limitations, the

medical monitoring claims of these five plaintiffs are time-

barred. The "discovery rule" is a "narrow exception to this

general rule," Tohan v. Owens-Corning Fiberglass Corp., 696

A.2d 1195, 1200 n.4 (Pa. 1997), and tolls the statute of

limitations during the "plaintiff's complete inability, due to

facts and circumstances not within his control, to discover

an injury despite the exercise of due diligence." Kingston

Coal Co. v. Felton Mining Co., 690 A.2d 284, 288 (Pa. Super.

Ct. 1997). Under the discovery rule, the statute of

limitations begins to run when the "plaintiff knows, or in

the exercise of reasonable diligence should have known, (1)

that he has been injured, and (2) that his injury has been

caused by another's conduct." Bradley v. Ragheb, 633 A.2d

192, 194 (Pa. Super. Ct. 1993). The plaintiff has the burden

of proving that he exercised reasonable diligence in bringing

his claim. See Cochran v. GAF Corp., 666 A.2d 245, 249-50

(Pa. 1995).

_________________________________________________________________

32. We note that plaintiffs' other expert Dr. Burns proposes that

monitoring begin before a person reaches the 20-pack year level. Dr.

Burns suggests, for example, that a person who has smoked 15-20

cigarettes for 10 years would be entitled to three of the seven proposed

tests. Barnes, 984 F. Supp. at 860. In choosing the 20-pack year level

as the accrual date, we, like the District Court, are erring in

plaintiffs'

favor by choosing a later date.

50

We agree with the District Court that the discovery rule

does not save the claims of these five plaintiffs. Each

plaintiff should have known that cigarettes put him or her

at a significantly increased risk of contracting a serious

latent disease years before this lawsuit was filed. As the

District Court found:

- "Since the 1980s, every doctor seen by Mr. Barnes

for hypertension has told him to stop smoking. . . .

Dr. Brownstein, his doctor in the mid-1980s, took

Barnes' cigarettes and threw them away every time

Barnes came in for a visit. . . . Indeed, Mr. Barnes

stated that at the time of these visits in the 1980s,

he `kn[e]w that cigarettes are no good for you if you

have any type of lung disease. . . . Further, Mr.

Barnes stated that he believed that his father's

death from lung cancer was partially caused by

smoking . . . . Finally, Mr. Barnes testified at

deposition that none of the warnings on cigarettes,

which inform smokers of the risks of smoking,

provided him with any information that he already

did not possess. Based on these facts, it is obvious

Barnes knew that smoking caused him to be placed

at an increased risk of contracting a serious latent

disease by at least the mid-1980s.' "

- "By her own admission, Potts learned `for sure' that

cigarette smoking created an increased risk of

disease in 1966, when the Surgeon General's first

warnings were put on cigarette packages. In

addition, and more importantly, Ms. Potts was

informed by her cardiologist in the late 1980s that

she was at a significantly increased risk of

contracting heart disease, in the form of clogged

arteries, from smoking."

- "As early as 1959 . . . Rodweller was told by a

doctor that smoking would put scar tissue on her

vocal cords and it was in that year that she realized

that `cigarettes affected [her] body. . . .' Since this

time, Ms. Rodweller admits that all of her doctors

have advised her to quit smoking because `[i]t can

make [her] ill' and because `[she] was a good

candidate for emphysema.' "

51

- "In the 1980s, one of Salzman's doctors told her to

stop smoking. The doctor explained, `it's really bad

for you, you can get emphysema, cancer . . . .' In

addition to being told by her doctors that she could

contract these diseases, Ms. Salzman urged her son,

throughout the 1980s, to quit smoking because of

the dangers of smoking."

- "After 1985, Mr. Slivak had read the warnings on

the packages of cigarettes. . . . In addition, in the

early 1980s, Slivak discussed with his family that

smoking may have been the cause of his wife's

cancer. Most importantly, Slivak's doctors connected

smoking to his heart disease."

- With respect to plaintiff McNally, the court

determined that, since she has only been smoking

for approximately 11 years, her claim could not

have accrued until sometime last year. FN 14.

Barnes, 984 F. Supp. 862-63 & n.14.

Plaintiffs argue the claims did not accrue when they were

placed "at a significantly increased risk" of developing

smoking-related illnesses. They claim instead that the

"touchstone of accrual is the suffering of actual,

demonstrable injury, not increased risk" and note that

Pennsylvania courts have "expressly held that a plaintiff

cannot sue for `increased risk.' " Similarly, they argue the

court erred in invoking the discovery rule because there

was no injury to discover since none had occurred. These

arguments lack merit. If, as plaintiffs maintain, they have

suffered no demonstrable injury--or even no injury at all--

then we would have to dismiss the case because it lacks an

Article III case or controversy. See Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61 (1992). The Pennsylvania

Supreme Court has held that the costs of periodic medical

examinations necessary to detect the onset of physical

harm, Redland, 696 A. 2d at 144, are a compensable injury

even in the absence of physical harm. Plaintiffs' argument

begs the question of when that injury accrued. Examining

plaintiffs' claims, the District Court found the injury

accrued when plaintiffs began needing medical monitoring.

The District Court determined this date by looking at the

52

testimony of plaintiffs' own experts. We agree with the

District Court's analysis.33

Citing Page v. United States, 729 F.2d 818 (D.C. Cir.

1984) and Fowkes v. Pennsylvania Railroad Co., 264 F.2d

397 (3d Cir. 1959), plaintiffs contend the "continuing harm"

doctrine should operate to toll the statute of limitations. In

Page, the D.C. Circuit found

It is well-settled that `when a tort involves continuing

injury, the cause of action accrues, and the limitation

period begins to run, at the time the tortious conduct

ceases.' Since usually no single incident in a

continuous chain of tortious activity can `fairly or

realistically be identified as the cause of significant

harm,' it seems proper to regard the cumulative effect

of the conduct as actionable. Moreover, `since one

should not be allowed to acquire a right to continue the

tortious conduct,' it follows logically that statutes of

limitations should not run prior to its cessation.

Page at 821-22 (citations omitted). There, the court applied

the continuing tort doctrine to a claim by an army veteran

that the army subjected him to harmful drugs.

In Fowkes, we found the plaintiff's claim under the

Federal Employers' Liability Act was not barred by the

three-year statute of limitations under a continuous harm

theory. We noted

`If the relation is continuous, as in that of master and

servant, and the default is likewise continuous until

the cumulative effect produces disability in the form of

occupational disease, total or partial, the master's

failure to perform his duty . . . is regarded as a single

wrong continuing so long as the employment

_________________________________________________________________

33. We acknowledge this statute of limitations analysis leads to some

"odd conclusions." For instance, with respect to Mr. Barnes' claim, we

have held that it accrued in 1990 under the 20 pack-year rule but that

he "discovered his injury five years before it accrued, in the mid-1980s

when his doctor threw away his cigarettes." But the source of this

seeming incongruity is our decision to err in favor of the plaintiffs in

calculating the accrual date. In calculating Barnes' accrual date, we used

the 20-pack-year level. This is the latest date suggested by plaintiffs.

53

continues. Such wrong must therefore be redressed by

action brought within . . . (the statutory period) from

the time when the employment terminates.'

Fowkes, 264 F.2d at 399 (citation omitted).

In Kichline v. Consolidated Rail Corp., 800 F.2d 356 (3d

Cir. 1986), however, in declining to apply the continuing

harm doctrine to a FELA claim, we limited the applicability

of Fowkes. In doing so, we specifically rejected the position

now advanced by plaintiffs. We noted that in Fowkes, the

"jury found specifically that the plaintiff was unaware that

the physical condition for which he sought damages had

existed for more than three years before the suit had been

filed." Kichline, 800 F.2d at 359. We then stated: "We

understand Fowkes to mean that continuing conduct of

defendant will not stop the ticking of the limitations clock

begun when plaintiff obtained requisite information. On

discovering an injury and its cause, a claimant must

choose to sue or forego that remedy." Id. at 360.34 Unlike

this case, the discovery rule was not applicable in Fowkes

because plaintiff did not know about his injury. But here,

as we have discussed, there is unrefuted evidence that

plaintiffs knew or should have known about their injury

more than two years before filing suit. Under Kichline, the

clock began to run when plaintiffs obtained the requisite

information.

2. Ciaran McNally

The District Court also granted summary judgment

against the sixth named plaintiff, McNally, finding she

failed to demonstrate a need for medical monitoring. 35 The

_________________________________________________________________

34. While plaintiffs are correct that in Kichline we distinguished Page as

an "intentional conduct case," Kichline, 800 F.2d at 360, we did not

adopt Page as the rule in intentional tort cases. We believe our

unequivocal adoption of the discovery rule in Kichline disposes of

plaintiffs' argument. We further note that Page, unlike this case,

involved

involuntary exposure to a hazardous substance.

35. Before reaching this issue, the District Court concluded defendants

were not entitled to summary judgment on the issues of McNally's

comparative negligence, assumption of risk, and consent. The District

Court found genuine issues of material fact exist with respect to each

defense. See Barnes, 984 F. Supp. at 868-70.

54

District Court found (1) under the Burns Program, McNally

is only entitled to participate in the first level of the

proposed monitoring program which includes regular

physical examinations, cardiovascular risk assessment, and

an EKG; (2) McNally only requested cardiovascular risk

assessment and annual physical examinations and not

EKGs; and (3) annual physical examinations and

cardiovascular risk assessment are routinely recommended

to all persons even in the absence of exposure. The court

concluded that because McNally only seeks monitoring for

two tests that would be recommended for her even if she

did not smoke, "[a]ny increase in Ms. McNally's incremental

risk of incurring the harm produced by the allegedly

hazardous substances in cigarettes would not warrant a

change in the medical monitoring that would be prescribed

for her. Indeed, in the absence of exposure, it would be

recommended that she receive the tests she seeks under

her medical monitoring claim." Barnes, 984 F. Supp. at

870-72. Therefore, the court reasoned, she cannot satisfy

the sixth element of Redland because she cannot establish

that "the prescribed regime is different from that normally

recommended in the absence of the exposure." See id.36 We

_________________________________________________________________

36. The parties' briefs and the record demonstrate a great deal of

confusion and disagreement on this issue. The dispute centers around

what kind of monitoring program McNally requested and what kind of

program plaintiffs' expert recommended for her.

Dr. Burns made contradictory statements with respect to the

appropriate program for McNally. In describing the different levels of

monitoring, Dr. Burns recommended three tests for smokers at McNally's

level (at least 25 years old and at least 10 years of smoking): (1) an

EKG,

(2) a cardiovascular risk factor assessment, and (3) a physical

examination. But later in his affidavit Dr. Burns specifically stated

McNally "should initially receive [cardiovascular risk assessment] and

[physical examination]." He did not mention the EKG. Moreover, in

plaintiffs' response to defendants' first set of interrogatories, McNally

indicated she would only need cardiovascular risk factor assessment and

physical examination and did not mention an EKG.

McNally claims for the first time on appeal that Dr. Burns' report

contains a typographical error. She claims paragraph 7 of the report

inadvertently stated that only a cardiovascular risk factor assessment

and a physical examination would be prescribed for her, and forgot to

mention the EKG. She argues this error was "carried through" to the

55

agree with this reasoning and the District Court's decision

to grant summary judgment against McNally.

IV.

For the foregoing reasons, we will affirm the judgment of

the District Court.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

_________________________________________________________________

interrogatory and contend the District Court erred by failing to recognize

and resolve a resulting "tension" between the interrogatory answer,

which neglected to mention the EKG, and the more general statement in

Dr. Burns' second report that EKGs should be administered to persons

25 or older who have smoked 10-15 cigarettes per day for 10 years.

Defendants claim McNally waived this argument because she did not

raise it below. We agree with defendants that this argument is waived.

Alternatively, plaintiffs contend that Dr. Burns, in his expert report,

stated that both tests--cardiovascular risk factor coupled with physical

examination--were different from that normally prescribed and therefore

satisfied the sixth element of Redland. We do not agree with plaintiffs'

analysis of Dr. Burns' testimony. Dr. Burns said: "Cardiovascular risk

factor assessment and a physical examination are measures that are

recommended for all individuals to identify modifiable causes of heart

disease including smoking. They are useful in preventing disease only for

those who have an identifiable and modifiable risk factor. All smokers

have an identifiable and modifiable risk factor, and the risk of disease

increases synergistically when smokers have additional risk factors.

Therefore, smokers have a particularly urgent need for this screening in

comparison to the general population and will have a potential benefit

that is substantially greater than the general population of smokers."

Plaintiffs argue this statement supports the position that these tests

were different from that normally prescribed for the general population.

But as defendants contend, Dr. Burns' report indicates these are

"measures recommended for all individuals." We also note Dr. Burns'

deposition statement that "most organizations recommended screening

for cardiovascular risk factors at almost any interaction with the health

care system regardless of age."

56