Last Friday, the Sixth Circuit upheld a $250,000 sanction award levied against the attorneys representing a large group of plaintiffs in an Ohio federal environmental contamination suit, on the basis that plaintiffs’ medical monitoring claims were objectively unreasonable.   The case – Baker et al. v. Chevron U.S.A., Inc. et al., Nos. 11-4369, 12-3995 (6th Cir., Aug. 2, 2013) – was on appeal from the Southern District of Ohio, which had granted Chevron’s motion for sanctions after plaintiffs had failed to meet the legal and factual burdens for establishing a medical monitoring claim under Ohio law.  Federal Rule of Civil Procedure 11 (“Rule 11”) provides litigants with a mechanism to attack claims that are “not well grounded in fact . . . [and/or] not warranted by existing law or a good faith argument for extension, modification, or reversal of existing law.”  Generally, Rule 11 sanctions are limited to those circumstances where an attorney’s conduct was unreasonable under the circumstances. 

The Baker case involves environmental contamination caused by Chevron’s crude oil refinery located near the Village of Hooven, Hamilton County, Ohio.  Over decades of operation, the refinery released hazardous air emissions and approximately 8 million gallons of gasoline into the surrounding soil and groundwater, which later formed a plume that migrated under neighboring properties.  The main chemical of concern for human health at the site was benzene, a known human carcinogen at sufficient levels of exposure, but which is also a fairly common chemical present in vehicle exhaust, cigarette smoke, glue, and paint.   

The Baker plaintiffs included approximately 200 former and current neighbors of Chevron’s refinery, who alleged that Chevron’s operations, including air emissions from the facility as well as soil vapors from the contaminated groundwater plume, caused them to suffer personal injuries and property damages.  Plaintiffs initiated the mass suit against Chevron despite the fact that both the EPA and the Ohio Department of Health had already concluded that the contamination did not present any health risks to residents or workers in the local community.

Of the 200 plaintiffs, 118 individuals asserted claims for medical monitoring damages, alleging that their exposure to benzene through the groundwater plume and soil vapors placed them at an increased risk for contracting a serious disease.  Only seven plaintiffs asserted that they were actually suffering from a physical injury as a result of benzene exposure, including one plaintiff with Hodgkin’s disease and breast cancer, two plaintiffs with monoclonal gammopathy/multiple myeloma, and one plaintiff with acute myelogenous leukemia.   

The District Court dismissed the medical monitoring claims because plaintiffs had failed to identify any illness for which they were at an increased risk for contracting as a result of their benzene exposure.  Plaintiffs also failed to demonstrate they were exposed to benzene at a level or dose that would reasonably place them at an increased risk of contracting a disease.  Furthermore, plaintiffs’ suggested medical monitoring plan was akin to a general healthcare and wellness plan, rather than a specific monitoring program targeted at addressing a disease specifically attributable to benzene exposure. 

The Sixth Circuit upheld the dismissal of the medical monitoring claims, noting that none of plaintiffs’ experts reports presented scientifically reliable information to tie benzene exposure to any of the claimed diseases, that plaintiffs had not presented any scientific evidence to rule out non-benzene causes for these diseases, and because there was no scientific information on record to demonstrate benzene exposure would put the remaining plaintiffs at a significantly increased risk for contracting the same or other diseases.  The court noted that “[w]ithout reliable, individualized proof that each of the 118 plaintiffs were exposed to contaminants sufficient to cause an increased risk of a specified disease, there is no evidence that a reasonable physician would order medical monitoring because that doctor would have no idea which disease he would be screening for or treating.”

The Sixth Circuit also affirmed the dismissal of plaintiffs’ property damage claims – groundwater damage and indirect subsurface trespass – because none of the plaintiffs actually used their groundwater (a requirement under Ohio law) as the entire Village of Hooven was on a municipal supply, and because plaintiffs had failed to show that the groundwater plume and soil vapors caused a substantial physical damage or a substantial interference with the use and enjoyment with their property. 

Chevron asserted that Rule 11 sanctions were appropriate in this case because plaintiffs’ counsel continued to pursue the medical monitoring claims despite having conceded during a discovery conference that they had no evidence to establish causation for the personal injuries or medical monitoring claims under the applicable legal standards.  In ruling on Chevron’s motion for sanctions, the District Court stated that “[b]ecause it is so well-established . . . that a toxic tort claimant needed proof of specific causation, i.e. dose, counsel’s complete failure to adduce proof of dose had to be the product of a deliberate decision and cannot be blamed on inadvertence or on a reasonable misinterpretation of the case law.”  The Sixth Circuit agreed, and held that plaintiffs’ counsel were objectively unreasonable in arguing that they were not required to present individualized exposure data to support their medical monitoring claims – a position which was not supported by clear Ohio case law – and also because they had failed to demonstrate that any plaintiffs were suffering from an actual increased risk of contracting a disease as a result of their benzene exposure.

Whether the Sixth Circuit’s approval of Rule 11 sanctions will have a deterring effect on future medical monitoring claims remains to be seen. 

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