Brush Wellman obtains Mississippi Supreme Court and Fifth Circuit rulings dismissing putative class action alleging exposure to beryllium
Clients Brush Wellman Inc.
Jones Day defended Brush Wellman Inc., a manufacturer of beryllium and beryllium-containing products, in a putative class action, by workers at the Stennis Space Center and their family members, who brought medical monitoring claims in the Southern District of Mississippi alleging that they had been exposed to airborne beryllium and were at risk of contracting chronic beryllium disease. The trial court granted Brush's motion to dismiss.
On appeal, the Fifth Circuit found that Mississippi law was silent on medical monitoring claims, and certified to the Mississippi Supreme Court the question whether Mississippi allows for such claims in exposure cases not involving existing injury. The Mississippi Supreme Court answered this question in the negative. It wrote that "the possibility of a future injury is insufficient to maintain a tort claim. Exposure to a potentially harmful substance does not in itself constitute a personal injury.... Therefore, the plaintiffs have a claim for harm which is not compensable under Mississippi law." Based on this answer, the Fifth Circuit affirmed the district court's dismissal of the action.
Paz v. Brush Engineered Materials Inc. et al., 949 So.2d 1 (Miss. 2007); No. 05-60157 (5th Cir. March 29, 2007)