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January 14, 2009

Fifth Circuit Applying Mississippi Law Concludes Beryllium Sensitization is Not a Compensable Injury

Harris v. Brush Wellman, Inc., a  Fifth Circuit negligence, product liability, and breach of warranty case applying Mississippi law, arose out of claims by the plaintiffs alleging that Brush's beryllium-containing products sold to the plaintiffs' employers caused personal injuries to the plaintiffs, including beryllium sensitization (“BeS”) and chronic beryllium disease (“CBD”).   Harris was consolidated with an earlier case, Paz v. Brush Engineered Materials, Inc., alleging a medical monitoring claim.  The Paz  plaintiffs' medical monitoring cause of action was dismissed earlier by the district court.  Paz v. Brush Engineered Materials, Inc., 351 F.Supp.2d 580 (S.D. Miss. 2005) (Paz I).    The case was appealed to the Fifth Circuit,  Paz v. Brush Engineered Materials, Inc., 445 F.3d 809, 815 (5th Cir. 2006) (Paz II), which certified the issue of whether Mississippi recognized a medical monitoring cause of action without proof of physical injury to the Mississippi Supreme Court.  The supreme court held that creation of a medical  monitoring cause of action would be contrary to Mississippi common law, which requires proof of an identifiable injury to support recovery in a negligence claim.  Paz v. Brush Engineered Materials, Inc., 949 So.2d 1, 3 (Miss. 2007) (Paz III).  The Fifth Circuit then affirmed the district court's decision.  483 F.3d 383 (5th Cir. 2007). 

A primary  issue in the Harris case was whether beryllium sensitization is a compensable injury under Mississippi law.  The evidence in the case clearly established that "excessive exposure to beryllium provokes a physical change in the body, causing BeS."  The record in the case established that some of the plaintiffs were sensitized to beryllium, and that there was a dispute of material fact concerning whether another plaintiff was so sensitized.  he critical issue, however, was "whether any physiologic change in the body rises to the level of compensable injury pursuant to Mississippi law."  (Emphasis the court's). 

The district court concluded that the plaintiffs did not establish a compensable injury under Mississippi law.   The plaintiffs appealed to the Fifth Circuit, which affirmed the dismissal.

Mississippi permits recovery in cases where future consequences from an injury to a person will occur, if those consequences are established in terms of reasonable probabilities.  The Fifth Circuit concluded, however, that on the record there was no dispute that the rate of progression of BeS to CBD is not known to any degree of reasonable medical certainty.
 
Mississippi law governing negligence, products liability, and breach of warranty claims require an identifiable injury.  The Fifth Circuit thought that the Mississippi Supreme Court's decision on medical monitoring in Paz III provided the best insight into whether BeS would be a compensable injury under Mississippi law.  Relying primarily on that decision, the Fifth Circuit concluded "that the same 'sub-clinical, cellular, and sub-cellular' changes alleged by the Paz plaintiffs" could not "now constitute a legal injury, without completely ignoring the Mississippi Supreme Court's holding in Paz III," and held that BeS is not a compensable injury.

MKS

January 14, 2009 | Permalink

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