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Arch [Barnes] v. American Tobacco Co.

(Class Action, US Dist. Ct. E. PA 1996 Decertified) Case name subsequently changed to Barnes v. American Tobacco Co. Class action status ultimately denied by court. Original plaintiffs included: Arch/Barnes/McNally/Potts/Rodweller/Salzman/Slivak/Teagle. Citation: 984 F Supp 830 (ED Pa, 17 June 1997); 176 FRD 479 (ED Pa, 22 Aug 1997); 989 F Supp 661 (ED Pa, 10 Oct 1997); 984 F Supp 842 (ED Pa, 17 Oct 1997); 161 F3d 127 (CA 3, ED Pa, 12 Nov 1998); cert. denied 526 US 1114, 119 S Ct 1760, 143 L Ed 2d 791 (17 May 1999)

This class action suit was brought by representative plaintiffs Steven R. Arch, William Barnes, Ciaran McNally, Catherine Potts, Norma Rodweller, Barbara Salzman, Edward J. Slivak, and John Teagle against American Tobacco Co., R.J. Reynolds, Brown & Williamson, Philip Morris, Lorillard, United States Tobacco, Liggett, the Tobacco Institute, and the Council for Tobacco Research on August 8, 1996.
The class was defined as nicotine-dependent Pennsylvania smokers, their estates and relatives. The plaintiffs sought damages, and medical monitoring and smoking cessation programs as relief. They claimed negligent misrepresentation, negligence, intentional and negligent infliction of emotional distress, breach of express and implied warranties, conspiracy and strict liability. They based their case on the factual allegations that (1) nicotine is addictive, (2) the industry knew this fact but claimed otherwise (3) the industry manipulates the level of nicotine to sustain addiction.
The defense asserted the defenses of consent, comparative negligence, and assumption of risk.
The case was filed in in the Court of Common Pleas of Philadelphia County. On August 27, 1996, the defendants removed the case to federal court. It was heard in the United States District Court for the Eastern District of Pennsylvania (Civil Action No. 95CV-5903). The judge (175 FRD 469) decertified the class on June 3, 1997, on the basis that significant individual issues precluded certification and granted summary judgement for the defense. The judge ruled that medical monitoring may sometimes be an equitable relief, but only where it is implemented under the court's, and not the plaintiffs' supervision.
A Second Amended Complaint was filed in the federal court under Barnes's name in which the plaintiffs restricted their relief sought to medical monitoring for cardiovascular disease, lung cancer and chronic obstructive pulmonary disease. The class was redefined as current Pennsylvania residents who are cigarette smokers as of that date and began smoking before age 19.
The judge (176 FRD 479) conditionally certified this class under the section for injunctive or declarative relief, Rule 23(b)(2) on August 22, 1997, but then (989 F Supp 661) on October 17, 1997, decertified under Rule 23(c)(1), finding individual issues still precluded certification.
Following decertification, the defendants moved for summary judgment. On October 17, 1997, the judge (984 F Supp 842) held that the statute of limitations for medical monitoring applied and the claims accrued when the plaintiffs first became at significantly higher risk than the standard population. He held that the discovery rule, and not the continuing tort doctrine, was applicable. This placed five plaintiffs outside of the permitted window to bring thier claims. He refused to prevent the defendants from asserting legal defenses including comparative negligence, assumption of risk and consent because (1) the plaintiffs were not maintaining fraud claims, (2) the case raises both legal and equitable claims so the unclean hands doctrine does not apply, and (3) the plaintiffs' public policy arguments do not overbear the defendants' right to assert affirmative defenses. He held that there were material fact issues regarding comparative negligence, assumption of risk and consent, but plaintiffs who were not time barred could not prove that the medical monitoring was any different than that recommended for anyone.
The United States Third Circuit Court of Appeals (161 F.3d 127) affirmed the certification order on November 12, 1998. The case was argued before Judges Scirica, Nygaard and Seitz. The judges stated that in order to claim damages for medical monitoring, the plaintiffs need to be able to show (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. Also, in order to be appropriately certified, a class action must not be based on predominantly individual issues. The court found that addiction remained a main contention for the plaintiffs in order for them to prove causation, and was an inherently individual issue. The defense also was entitled to raise affirmative defenses which involved individual issues and precluded certification.


   Arch v. American Tobacco Co.
   Arch (Barnes) v. American Tobacc
   Arch [Barnes] v. American Tobacc