1998 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"Barnes v. Amer Tobacco Co" (1998). 1998 Decisions. Paper 262.

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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 courtapproved 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. OwensCorning 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 crossexamination 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 packyear 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 twentypack 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 twoyear 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 timebarred. 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