George Paz v. Brush Engineered Materials Inc; Brush Wellman Inc; Wess-Del Inc; the Boeing Company

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________________
No. 05-60157
______________________
GEORGE PAZ; BARBARA FACIANE; JOE LEWIS; DONALD
JONES; ERNEST E. BRYAN; GREGORY CONDIFF; KARLA
CONDIFF; ODIE LADNER; HENRY POLK; ROY TOOTLE;
WILLIAM H. STEWART, JR.; MARGARET ANN HARRIS;
JUDITH A. LEMON; THERESA LADNER; YOLANDA PAZ,
Individually and on behalf of all others
similarly situated
Plaintiffs-Appellants
v.
BRUSH ENGINEERED MATERIALS INC; BRUSH WELLMAN
INC; WESS-DEL INC; THE BOEING COMPANY
Defendants-Appellees
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CONS/W 05-60388
GEORGE PAZ; ET AL
Plaintiffs
v.
BRUSH ENGINEERED MATERIALS INC; ET AL
Defendants
United States Court of Appeals
Fifth Circuit
F I L E D
March 29, 2007
Charles R. Fulbruge III
Clerk

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JOSEPH P. HARRIS; MARGARET ANN HARRIS; TERRY R.
LEMON; JUDITH A. LEMON; MARLIN MORAN; RODNEY
SORAPURU; HERMELINDA SORAPURU; ALVIN PITTMAN,
SR.
Plaintiffs-Appellants
v.
BRUSH ENGINEERED MATERIALS INC.; ET AL
Defendants
WESS-DEL INC
Defendant-Appellee
_______________________________________________
Appeals from the United States District Court
for
the Southern District of Mississippi, Biloxi
________________________________________________
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
For the reasons previously assigned in Paz v.
Brush Engineered Materials, Inc., 445 F.3d 809
(5th Cir. 2006), we reversed the district court's
dismissal of the appellants' claims against Wess-

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Del for lack of personal jurisdiction, but because
the district court's dismissal of the plaintiffs'
case under Rule 12(b)(6) raised an important
question of state law which the Mississippi courts
had not resolved, we certified a question to the
Mississippi Supreme Court before finally disposing
of this appeal. The question certified was
"[w]hether the laws of Mississippi allow for a
medical monitoring cause of action, whereby a
plaintiff can recover medical monitoring costs for
exposure to a harmful substance without proving
current physical injuries from that exposure?"
The Mississippi Supreme Court has now answered
that question. See Paz v. Brush Engineered
Materials, Inc., 2007 WL 14891 (Miss. 2007). The
court, inter alia, stated: "This Court has
continuously rejected the proposition that within
tort law there exists a cause of action or a

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general category of injury consisting solely of
potential future injury. Therefore, in response
to the question from the Fifth Circuit as to
whether Mississippi recognizes a medical
monitoring cause of action without a showing of
physical injury this Court has previously refused
to recognize such an action and in accordance with
Mississippi common law continues to decline to
recognize such a cause of action." Id. at *6.
The Court also discussed a number of exceptions or
qualifications to this general rule that do not
apply in the instant case. Id. at *2-3.
Accordingly, we conclude that this case is
controlled by the general rule announced by the
Mississippi Supreme Court and requires that we
affirm the district court's judgment on that
basis.
Thus, although we previously concluded that

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the district court erred in dismissing the case
for lack of personal jurisdiction and maintain our
reversal of that ruling, we now conclude, in light
of the Mississippi Supreme Court's answer to the
certified question, that the district court
reached the correct result in granting the
defendants’ Rule 12(b)(6) motion to dismiss. For
these reasons, we affirm the district court’s
judgment on that ground.

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