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Badillo v. American Tobacco Co.

(Class Action US Dist Ct Nevada 1997 Decertified) Related Cases: Dienno v. Liggett, Christensen v. Philip Morris, Selcer v. R.J. Reynolds Citation: 16 P.3d 435 (30 Jan 2001); 202 F.R.D. 261 (2 Jul 2001)

This class action suit was brought by representative plaintiffs Antonio Badillo, Thomas Franklin, Jack M. Lipsman, Debra K. Otting, Robert Tassiello, Regina Basilio, Robert Murphy, James A. Dilullo, Dennis Honeywell, Vito Dienno, Martin N. Halnan, V. Arlene Christensen, William Joseph, Kimberly Bosley, Norman Selcer, Anne Selcer, Clara Virga, Loretta Brown, Bradley Doud and Early Witting, against American Tobacco Co., American Brands, Brown & Williamson, Brooke Group, Dosal Tobacco, Liggett, Loews, Lorillard, the National Association of Tobacco Distributors, Philip Morris, R.J. Reynolds, Council for Tobacco Research, Tobacco Institute, Tobacco Merchants Association of the United States, and United States Tobacco on October 8, 1997.
The class consisted of nonsmokers and former smokers who were current or former casino workers and had been exposed to second hand cigarette smoke. The plaintiffs alleged that they were exposed to increased risk of tobacco-related diseases as a result of their employment in casinos. The plaintiffs claimed strict liability, negligence, fraud and misrepresentation. The plaintiffs sought medical monitoring.
The case was heard in the United States District Court, District of Nevada (No. CV-S-98-1764PMP(PAL)) before the Honorable Philip M. Pro. The judge consolidated four similar class action suits for the purposes of class certification, and certified several questions to the Nevada Supreme Court.
The Supreme Court of Nevada (16 P.3d 435) answered the questions on January 30, 2001. The court ruled that the state's common law did not recognize a separate cause of action for medical monitoring, but it may be available as a remedy if tied to a cause of action for trespass, nuisance, strict liability or negligence as well as possibly others. The court did have the power to create a new common law cause of action, but declined to do so, given the complexity of the issues surrounding environmental tobacco smoke.
The United States District Court, District of Nevada (202 F.R.D. 261) used the state Supreme Court's ruling to deny the plaintiffs' motion for class certification on July 2, 2001. The court held that the plaintiffs failed to demonstrate a viable cause of action to tie the medical monitoring remedy to. The proposed class was sufficiently numerous, but individual issues of causation, comparative fault, assumption of risk, and others frustrated the commonality and predominance requirements and eliminated any benefit to judicial economy. These elements may have been satisfied if medical monitoring were an independent cause of action. The representative plaintiffs did not satisfy the typicality and adequacy requirements because there was no typical case in the class. The plaintiffs appealed.