                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                       _____________________________          FILED
                                                    U.S. COURT OF APPEALS
                                                      ELEVENTH CIRCUIT
                                No. 06-12243               April 18, 2007
                       _____________________________ THOMAS K. KAHN
                                                             CLERK
                     D. C. Docket No. 04-00606 CV-RWS-1

NEAL PARKER,
WILBERT CARLTON,
STEPHEN KING,
RAY BURNS,
DEBORAH WATKINS,
LEONARD PONDER,
BARBARA KING,
PATRICIA BURNS,
All individually and as Representative Plaintiffs
on behalf of all other similarly situated,

                                                    Plaintiffs-Appellants,

      versus

BRUSH WELLMAN, INC.
SCHMIEDE MACHINE AND TOOL CORPORATION,
THYSSENKRUPP MATERIALS NA, INC.,
d.b.a. Copper and Brass Sales,
ALCOA, INC.,
MCCANN AEROSPACE MACHINING CORPORATION,

                                                    Defendants-Appellees,

AXSYS TECHNOLOGIES, et al.,

                                                    Defendants.
                _________________________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                _________________________________________

                                  (April 18, 2007)

Before EDMONDSON, Chief Judge, BIRCH and WILSON, Circuit Judges.

PER CURIAM:

      Plaintiffs-Appellants (“Plaintiffs”), a group of 120 current and former

employees of Defendant-Appellee Lockheed Martin (“Lockheed”) and their

families, appeal from the district court’s dismissal of their suit against Defendants-

Appellees Brush Wellman, Inc., Schmiede Machine and Tool Corporation,

Thyssenkrupp Materials NA, Inc. (d/b/a Copper and Brass Sales), Alcoa, Inc., and

McCann Aerospace Machining Corporation (collectively, “Defendants”), in which

Plaintiffs sought to recover damages for personal injuries allegedly sustained due

to Defendants’ manufacture, use, and discharge of beryllium, a hazardous

substance. We affirm the district court’s dismissal of Plaintiffs’ claim for a

medical monitoring fund and of those claims based on allegations of “subclinical”

injury. But, because we conclude that the district court prematurely granted

Defendants judgment on Plaintiffs’ claims of beryllium sensitization, we vacate

that judgment and remand for further proceedings.

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I. BACKGROUND



      Plaintiffs filed this putative class action in a state court. The Complaint

alleges that Defendants are involved in the manufacture, use, or discharge, or all of

these, of beryllium. Plaintiffs contend that they were exposed to respirable forms

of beryllium from certain products used at Lockheed’s Marietta, Georgia, facility.

The Complaint alleges that Defendants either knew or should have known that

beryllium can cause various adverse health consequences and that Plaintiffs’

activities at Lockheed would result in harmful exposure to the substance.

      Plaintiffs assert that, as a result of their exposure, they “have suffered and

will suffer in the future personal injuries in the form of sub-clinical, cellular, and

sub-cellular damage and some have suffered from acute and chronic lung disease,

dermatologic disease, and chronic beryllium disease (“CBD”).” Plaintiffs also

contend that they “have been placed at substantially increased risk of catastrophic

latent disease, such as chronic beryllium disease and cancer,” and “have suffered

and will suffer in the future from fear, anxiety, and emotional upset” because of

their personal injuries and increased risk of disease. The Complaint includes




                                           3
claims for medical monitoring, strict liability, negligence, fraudulent concealment,

civil conspiracy, punitive damages, and attorneys’ fees.

      Lockheed removed the case to federal court pursuant to 28 U.S.C. §

1442(a)(1). Defendants filed various motions to dismiss, motions for judgment on

the pleadings, and motions for a more definite statement. The district court ruled

that those claims relying on “sub-clinical, cellular, or sub-cellular” injuries were

not cognizable under Georgia law, concluding that Georgia only allows tort

recovery for injuries with “manifest physiological symptoms.” The district court

noted that it would enter an order dismissing those “subclinical” claims after

Plaintiffs filed an amended pleading identifying those plaintiffs who had sustained

“actionable tort injuries.” The court similarly granted Defendants’ motions to

dismiss “these ‘subclinical’ Plaintiffs’ claims for increased risk and negligent

infliction of emotional distress” and for medical monitoring.

      Plaintiffs then filed a Substituted Amended Complaint (“Amended

Complaint”), in which they identified five persons “whose injuries have

manifested themselves such that they have been detected by physical examination

and/or laboratory test.” Plaintiffs also repeated their allegation that all Plaintiffs

had “sustained subclinical, cellular, and subcellular effects that constitute physical

injuries.” In response, Defendants moved to enforce the district court’s earlier


                                           4
order, arguing that the five specified plaintiffs alleged only beryllium

sensitization, which is not an actionable injury even when detected by clinical

tests. Because both parties submitted expert affidavits, the district court, with the

consent of the parties, treated Defendants’ motion as a motion for summary

judgment. The court granted Defendants’ motion, concluding that, even accepting

the Plaintiffs’ expert’s opinion, beryllium sensitization constituted no actionable

injury under Georgia law. Because Plaintiffs had put forth no other claims, the

court dismissed the case.



                            II. STANDARD OF REVIEW



      Defendants argue that the district court dismissed only the medical

monitoring claim in Count I before the summary judgment stage, but the district

court’s opinion specifically stated that the court was granting Defendants’ motion

to dismiss on the “subclinical” claims. The later order therefore only dealt with

the claims of the five plaintiffs who further alleged beryllium sensitization. We

review the rulings in the first order under Fed. R. Civ. P. 12(b)(6), which governs

motions to dismiss for failure to state a claim, and review the ruling in the second

order under Fed. R. Civ. P. 56, which applies to motions for summary judgment.


                                          5
      We review a district court’s dismissal of a claim under Rule 12 de novo,

accepting the well-pleaded factual allegations in the complaint as true and

construing them in the light most favorable to the plaintiff. Aldana v. Del Monte

Fresh Produce, N.A., Inc., 416 F.3d 1242, 1246 (11th Cir. 2005). A dispositive

Rule 12 motion may be granted only if “it appears beyond doubt that the plaintiff

can prove no set of facts in support of his claim which would entitle him to relief.”

Id.

      We also review the district court’s grant of summary judgment de novo,

viewing the record and drawing all reasonable inferences in the light most

favorable to the nonmoving party. Hall v. United Ins. Co. of America, 367 F.3d

1255, 1262 (11th Cir. 2004). Summary judgment is proper only if no genuine

issue of material fact exists and the movant is entitled to judgment as a matter of

law. Id.

      The parties acknowledge that the legal questions presented in this case are

governed by Georgia law. “In rendering a decision based on state substantive law,

[we] must decide the case the way it appears the state's highest court would.

Where the state's highest court has not spoken to an issue, [we] must adhere to the

decisions of the state's intermediate appellate courts absent some persuasive

indication that the state's highest court would decide the issue otherwise.”


                                          6
Chepstow Ltd. v. Hunt, 381 F.3d 1077, 1080 (11th Cir. 2004) (alterations in

original) (internal quotation marks and citation omitted).



                                  III. DISCUSSION



                     A. Plaintiff’s “Subclinical” Injury Claims



      Plaintiffs contend that the district court erred in concluding, as a matter of

law, that allegations of subclinical damage could not support an award of damages

for personal injury and emotional distress. Plaintiffs argue that, under Georgia

law, the question of whether the alleged subclinical damage constitute a physical

injury is one of fact that cannot be resolved on the pleadings. We disagree.

      To recover for personal injuries under Georgia law, a plaintiff must show

that he has suffered “injury to life or limb or damage to other property.” Pickren

v. Pickren, 593 S.E.2d 387, 388 (Ga. Ct. App. 2004). Georgia similarly allows

recovery of damages for emotional distress upon a showing of “(1) a physical

impact to the plaintiff; (2) the physical impact cause[d] physical injury to the

plaintiff; and (3) the physical injury to the plaintiff cause[d] the plaintiff’s mental

suffering or emotional distress.” Lee v. State Farm Mut. Ins. Co., 533 S.E.2d 82,


                                           7
85 (Ga. 2000). Thus, to the extent that Plaintiffs’ allegations of subclinical

damage are insufficient to support a claim for physical injury, they are also

insufficient to support a claim for emotional distress.1

       In the leading Georgia case dealing with exposure to a toxic substance, the

Court of Appeals indicated that a personal injury plaintiff must present evidence

of “actual disease, pain or impairment of some kind.” Boyd v. Orkin

Exterminating Co., Inc., 381 S.E.2d 295, 298 (Ga. Ct. App. 1989), overruled on

other grounds, Hanna v. McWilliams, 446 S.E.2d 741 (Ga. Ct. App. 1994). In

Boyd, homeowners sued a pest control company for negligently applying

insecticide inside their home, which resulted in the exposure of themselves and

their children to harmful levels of toxic substance. Boyd, 381 S.E.2d at 296. At

trial, the plaintiffs presented evidence demonstrating the presence of elevated

levels of toxin metabolites in their children’s blood. They also adduced medical

expert testimony stating that the elevated levels, in themselves, constituted an

“injury” and that the children would require periodic monitoring to determine

  1
    Plaintiffs’ reliance on the HIV-exposure case Johnson v. American Nat’l Red Cross, 578 S.E.2d
106 (Ga. 2003), in support of their emotional distress claim is misplaced. Plaintiffs argue that they
have stated a claim for fear of future disease because they have alleged “actual” exposure to a
disease-causing agent and a “channel of communication” through which exposure took place. But
Johnson did not address whether a the plaintiff had sufficient physical injury to recover emotional
distress damages; the court merely concluded that a failure to show actual exposure was fatal to the
plaintiff’s claim. And the earlier case of Russaw v. Martin, 472 S.E. 2d 508, 510 (Ga. Ct. App.
1996) – on which Johnson relied, see Johnson, 578 S.E.2d at 109-10 -- indicates that even those
suing for emotional distress due to HIV exposure must allege and prove a physical injury.

                                                 8
whether they were developing health problems associated with the toxic exposure.

Id. But, the appellate court upheld the directed verdict for the defendant,

concluding that “there was no evidence that the appellants had sustained any

specific injury.” Id. at 297-98.

        Here, the district court read Boyd to “apparent[ly] reject[] subclinical effects

as actionable ‘injuries.’” We agree. According to the Boyd appellate opinion, the

trial evidence in Boyd consisted of medical testimony that the presence of the

elevated levels of toxin metabolites, by itself, was an injury; the medical testimony

did not show that those metabolites “had caused or would eventually cause actual

disease, pain or impairment.” Id. at 298. Likewise, Plaintiffs here have alleged

that the subclinical and cellular damage from their exposure, by itself, is an injury.

But Plaintiffs have not alleged that this subclinical damage has resulted in an

identifiable physical disease, illness, or impairing symptoms. And to the extent

that Plaintiffs allege that their subclinical condition will eventually cause – or will

at least increase their risk of developing – future disease, pain, or impairment,

Plaintiffs concede that they do not seek current compensation for this anticipated

harm.2 Instead, Plaintiffs rest their personal injury claims on the contention that


    2
      In this manner, Plaintiffs are similarly situated to the claimants in Boyd, who introduced
evidence that the elevated toxin levels, while not impairing the children’s present health, increased
their risk of developing cancer. Boyd, 381 S.E.2d at 298. But even if Boyd can be read to allow
recovery where the subclinical effects of exposure are shown to increase – to a “reasonable degree

                                                 9
their allegations of subclinical and cellular damage are sufficient to allege a

current physical injury under Georgia law; because we reject this argument,

Plaintiffs’ claims for personal injury and emotional distress must fail.3

        And because Plaintiffs’ allegations of subclincial damage are insufficient to

state a current physical injury, Plaintiffs are not entitled to recover the

“quantifiable costs of periodic medical examinations” as future medical expenses.

See Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492, 1504 (11th Cir. 1985)




of medical certainty” -- the risk of manifest disease or impairment, see id. at 298, Plaintiffs concede
that they do not seek recovery for this “enhanced risk.”
   3
     We are aware that some courts have allowed tort claims based on allegations of subclinical or
cellular “injury” in exposure cases, in some cases treating such an allegation as one of latent disease.
See, e.g., Weirlein v. United States, 746 F.Supp. 887, 901 (D. Minn. 1990), vacated in part on other
grounds, 793 F.Supp. 898 (D. Minn. 1992); Barth v. Firestone Tire & Rubber Co., 661 F.Supp. 193,
196 (N.D. Cal. 1987); Brafford v. Susquehanna Corp., 586 F.Supp. 14, 17-19 (D. Colo. 1984).
        But we think that, in Georgia, the more persuasive position is that an allegation of subclinical
damage does not satisfy Boyd’s requirement of an actual “disease” or “impairment,” even if it is a
predictor of future disease. See, e.g., Rainer v. Union Carbide Corp., 402 F.3d 608, 618-22 (6th Cir.
2005) (concluding that, under Kentucky law, allegations of “subcellular damage” were insufficient
to satisfy the requirement of “bodily injury” for recovery under the Price-Anderson Act where
plaintiffs lacked “present physical illness” but introduced evidence that “chromosomal damage is
directly linked with an increased likelihood of cancer”); Schweitzer v. Consol. Rail Corp., 758 F.2d
936, 942 (3rd. Cir. 1985) (“We believe . . . that subclinical injury resulting from exposure to asbestos
is insufficient to constitute actual loss or damage to a plaintiff’s interest required to sustain a cause
of action under generally applicable principles of tort law.”); Laswell v. Brown, 683 F.2d 261, 269
(8th Cir. 1982) (concluding that allegations of exposure to an “unusually high risk of disease in
genetically passed cellular” damage was insufficient to state a claim where the complaint was
“conspicuously void of . . . allegations that the children have sustained . . . damage other than the
exposure to a higher risk of disease and cellular damage” (emphasis added)); cf. Eagle-Picher Indus.,
Inc. v. Liberty Mut. Ins. Co., 682 F.2d 12, 19-20 (1st Cir. 1982) (examining various definitions of
“injury” and “disease” and concluding that insurance policies could not be construed to cover
subclinical changes that did not cause impairment “until, if ever, they accumulate to become
clinically evidence or manifest”).

                                                   10
(allowing recovery of future medical expenses that are reasonably certain to be

incurred as a result of plaintiff’s current physical injury). Plaintiffs have failed to

point us to any Georgia authority that allows recovery of medical monitoring costs

in the absence of a current physical injury, and Boyd suggests that Georgia would

not recognize such a claim.4 See Boyd, 381 S.E.2d at 298 (affirming partial

summary judgment to defendants where plaintiffs “merely produced medical

testimony that the children would require monitoring in the future to determine

whether they developed health problems due to their exposure to the chemicals”).

The district court therefore correctly dismissed Plaintiffs’ claim for a medical

monitoring fund in Count I of the Complaint.



                       B. Plaintiffs’ Beryllium Sensitization Claims



        Plaintiffs also contend that the district court improperly granted summary

judgment to Defendants based on the court’s conclusion that beryllium

sensitization – a clinically-manifest condition -- constituted no actionable injury


    4
     Whether courts should recognize a medical monitoring cause of action in the absence of a
present physical illness or impairment is not well-settled nationwide. See, e.g., Paz v. Brush
Engineered Materials, Inc., 949 So.2d 1, 6-7 (Miss. 2007) (collecting cases from different
jurisdictions and then declining to recognize medical monitoring actions absent allegations of present
physical injury under Mississippi law, which “requires the traditional elements of proof in a tort
action”).

                                                 11
under Georgia law. Plaintiffs argue that the medical expert affidavits established

that a material issue of fact exists on whether beryllium sensitization is a current

“disease, pain or impairment.” We agree.

      Plaintiffs’ expert, Dr. Maier, opined that beryllium sensitization is “an

abnormal immune response” that is “comparable to an allergy” and “an important

precursor to [CBD].” Dr. Maier indicated that approximately six to eight percent

per year of sensitized persons develop CBD and stated that “[i]t is likely that the

majority of individuals with sensitization will eventually develop CBD.” She also

compared sensitization with HIV and pleural plaques, other immunological

conditions that have a “high risk” of developing into more serious diseases. Dr.

Maier concluded that “it is clear that beryllium sensitization is a marker of injury

to beryllium.”

      In contrast, while Defendants’ expert, Dr. Repsher, agreed that beryllium

sensitization is similar to an allergy, he stated that the condition is a “part of a

normally functioning and healthy immune system” that does not result in any

“structural or functional changes” in the body. Instead, a sensitized person is

merely “capable of having a harmful, allergic-type reaction to beryllium in the

future.” He also opined that the condition “cause[s] no impairment or harm of any

kind” and that a sensitized person may never develop CBD. He disagreed with Dr.


                                           12
Maier’s analogy to pleural plaques and also stated that sensitization appears to be

reversible, as some people who test positively for the condition later test negative.

      In sum, the parties’ experts disagree on whether the beryllium sensitization

is a current disease or impairment and on the probability that the condition will

later develop into CBD. These issues are questions of fact that should be

answered by a jury, and summary judgment was therefore improper.



                                IV. CONCLUSION



      We conclude that Plaintiffs’ allegations of injury in the form of subcellular,

subclinical, and cellular harm are insufficient to survive Defendants’ motions to

dismiss on their claims for damages for personal injury and emotional distress.

We also decide that the district court correctly determined that Georgia law does

not currently allow for recovery of medical monitoring costs. But we conclude

that Plaintiffs’ expert testimony creates a genuine dispute of material fact on

whether beryllium sensitization is a current physical impairment; summary

judgment was therefore inappropriate on the claims of the five plaintiffs identified

as being sensitized. For these reasons, the district court’s rulings are affirmed in




                                          13
part and vacated in part; and the case is remanded for further proceedings

consistent with this opinion.

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




                                        14
