United States: Eleventh Circuit Holds That Beryllium Sensitization May Be Cognizable “Injury”

As previously reported, see In Re Products Liability at 13 (July 2006), a federal trial judge in Georgia ruled in March of last year that beryllium sensitivity is not a compensable injury under Georgia law. On April 18, 2007, the Eleventh Circuit Court of Appeals vacated that determination, finding that a genuine dispute of material fact existed on whether beryllium sensitization constitutes "a current disease or impairment and on the probability that the condition will later develop into" chronic beryllium disease.

The named plaintiffs commenced this putative class action on behalf of otherwise asymptomatic individuals seeking recovery for "sub-clinical, cellular, and sub-cellular damages" supposedly caused by exposure to respirable beryllium associated with the manufacture or use of products containing beryllium in the course of work at a Lockheed Martin Corporation facility in Georgia. Id. at *1. Plaintiffs also claimed that they had "been placed at substantially increased risk of catastrophic latent disease, such as chronic beryllium disease [("CBD")] and cancer," and "have suffered and will suffer in the future from fear, anxiety and emotional upset" due to their increased risk of injury. Id. Plaintiffs’ complaint included claims for medical monitoring, strict liability, negligence, negligent infliction of emotional distress, fraudulent concealment, and civil conspiracy. Id.

In March 2005, on defendants’ motion to dismiss and for judgment on the pleadings, the district court ruled that Georgia law did not recognize sub-clinical, cellular, or sub-cellular injuries as actionable, holding that it only allowed tort recovery for injuries with "manifest physiological injuries." Id. The district court also granted defendants’ motion to dismiss plaintiffs’ claims for increased risk, negligent infliction of emotional distress and medical monitoring. As a consequence, the district court ordered plaintiffs to provide a more definite statement of their claims by segregating out those plaintiffs who actually sustained actionable tort injuries. Id.

Plaintiffs instead filed an amended complaint reiterating their belief that the former effects constituted legally cognizable injuries, and identified five individuals with "injuries . . . detected by physical examination and/or laboratory test." Id. at *2. Defendants responded with a motion to enforce the district court’s prior order and also argued that "the five specified plaintiffs alleged only beryllium sensitization, which is not an actionable injury even when detected by clinical tests." Id.

In support, defendants submitted the affidavit of a Dr. Repsher, a pulmonary physician specializing in environmental and occupational lung diseases, who opined that beryllium sensitization is similar to an allergy and is "part of a normally functioning and healthy immune system" that does not involve in any "structural or functional changes" in the body. Id. at *4. Instead, a sensitized person is merely "capable of having a harmful, allergic-type reaction to beryllium in the future." Id. Dr. Repsher also opined that the condition "cause[s] no impairment or harm of any kind" and that a sensitized person may never develop CBD. He also stated that sensitization appears to be reversible, as some people who test positively for the condition later test negative. Id.

Plaintiffs responded with an affidavit from a Dr. Maier, an expert on beryllium medicine, who opined that beryllium sensitization is "an abnormal immune response" that is "comparable to an allergy" and "an important precursor to [CBD]."Id. Dr. Maier stated that approximately six to eight percent of sensitized persons per year develop CBD and further opined that "[i]t is likely that the majority of individuals with sensitization will eventually develop CBD." Id. Dr. Maier compared beryllium sensitization with HIV (as a "precursor" to AIDS) and asbestos-related pleural plaques, both immunological conditions with a "high risk" of developing into more serious diseases. Id. Dr. Maier concluded that "it is clear that beryllium sensitization is a marker of injury to beryllium." Id.

Because both parties submitted expert affidavits, the district court, with the parties’ consent, treated defendants’ motion as a motion for summary judgment. The court granted defendants’ motion and dismissed the case, concluding that, even accepting plaintiffs’ expert’s opinion, "beryllium sensitization constituted no actionable injury under Georgia law. "Id. at *2. Plaintiffs’ appeal followed.

On appeal, plaintiffs argued that the district court committed two errors of law — first, by dismissing plaintiffs’ claims grounded on alleged sub-clinical injuries and second, by dismissing plaintiffs’ claims based on beryllium sensitization.

Sub-clinical Injuries Not Cognizable. The Eleventh Circuit affirmed the district court’s dismissal of plaintiffs’ claims based on sub-clinical injuries and the alleged emotional harm flowing therefrom, stating that "under Georgia law, a plaintiff must show that he has suffered injury to life, limb or damage to other property" and that damages for emotional distress can only be awarded "upon a showing of . . . [a] physical injury to the plaintiff [that] caused the plaintiff’s mental suffering or emotional distress." Id. at *3 (internal citations omitted). Noting that "a personal injury plaintiff must present evidence of ‘actual disease, pain or impairment of some kind,’" id. (quoting Boyd v. Orkin Exterminating Co. Inc., 381 S.E.2d 295, 298 (Ga. Ct. App. 1989)), and that plaintiffs failed to allege "an identifiable physical disease, illness or impairing symptoms," the court ruled that "plaintiffs’ claims for personal injury and emotional distress must fail." Id. It also affirmed the district court’s dismissal of plaintiffs’ claim for medical monitoring because "plaintiffs . . . failed to point . . . to any Georgia authority that allows recovery for medical monitoring costs in the absence of a current physical injury." Id. at *4.

Beryllium Sensitization May Be Cognizable. Plaintiffs also argued that the district court improperly granted summary judgment to defendants based on the district court’s conclusion that "beryllium sensitization — a clinically-manifest condition — constituted no actionable injury under Georgia law." Id. Specifically, plaintiffs argued that the medical expert affidavits submitted by Drs. Repsher and Maier established the existence of a material issue of fact on the question of "whether beryllium sensitization is a current ‘disease, pain or impairment.’" Id. Noting that the parties’ experts disagreed on whether beryllium sensitization is a current disease or impairment as well as on the probability that the condition will later develop into CBD, the court remanded, holding:

Id. at *5.

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