William R. Rhodes; Russell H. Miller; Valori A. Mace v.  E.i. Du Pont De Nemours and Company

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 WILLIAM R. RHODES; RUSSELL H.
MILLER; VALORI A. MACE,
Plaintiffs-Appellants,
v. No. 10-1166 
E.I. DU PONT DE NEMOURS AND
COMPANY,
Defendant-Appellee. 
Appeal from the United States District Court
for the Southern District of West Virginia, at Parkersburg.
Joseph R. Goodwin, Chief District Judge.
(6:06-cv-00530)
Argued: January 25, 2011
Decided: April 8, 2011
Before NIEMEYER, DUNCAN, and KEENAN,
Circuit Judges.
Affirmed in part; dismissed in part by published opinion.
Judge Keenan wrote the opinion, in which Judge Niemeyer
and Judge Duncan joined.
COUNSEL
ARGUED: Robert A. Bilott, TAFT, STETTINIUS & HOL-
LISTER, LLP, Cincinnati, Ohio, for Appellants. Charles

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Glaston Cole, STEPTOE & JOHNSON, LLP, Washington,
D.C., for Appellee. ON BRIEF: John B. Nalbandian, Aaron
M. Herzig, Heidi H. Trimarco, TAFT, STETTINIUS & HOL-
LISTER, LLP, Cincinnati, Ohio; J. Steven Justice, TAFT,
STETTINIUS & HOLLISTER, LLP, Dayton, Ohio; R. Edi-
son Hill, Harry G. Deitzler, HILL, PETERSON, CARPER,
BEE & DEITZLER, PLLC, Charleston, West Virginia; Larry
A. Winter, WINTER, JOHNSON & HILL, PLLC, Charles-
ton, West Virginia, for Appellants. Jennifer Quinn-
Barabanov, Patricia B. Paredes, STEPTOE & JOHNSON,
LLP, Washington, D.C., for Appellee.
OPINION
KEENAN, Circuit Judge:
This case arose under the district court’s diversity jurisdic-
tion and involves the contamination of a public water supply
in Parkersburg, West Virginia. We consider whether the
plaintiffs, individuals who consumed the water but have not
become ill as a result, demonstrated an injury sufficient to
survive summary judgment on certain West Virginia common
law tort claims. We also review the district court’s rulings
denying class certification of those claims under Federal Rule
of Civil Procedure 23(b). Finally, we decide whether the
plaintiffs, who obtained voluntary dismissals in the district
court of their individual claims for medical monitoring, have
standing to pursue an appeal of the district court’s denial of
class certification of those claims. For the reasons that follow,
we dismiss the plaintiffs’ claim challenging the district court’s
denial of their class certification request for the medical moni-
toring claims, and we affirm the balance of the district court’s
judgment.
I.
We begin by stating the facts and procedural history rele-
vant to our review of the district court’s summary judgment
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and class certification holdings. The plaintiffs, William R.
Rhodes, Russell H. Miller, and Valori A. Mace, are residents
of the City of Parkersburg in Wood County, West Virginia,
and are customers of the Parkersburg City Water Department
(the Water Department), which supplies water to homes
located in Wood County. E.I. du Pont de Nemours and Com-
pany (DuPont) operates a manufacturing facility in Wood
County. For an extended period of time, DuPont’s plant has
discharged perfluorooctanoic acid (PFOA) into the environ-
ment surrounding the plant. Measurable quantities of PFOA
have been detected in the water that is pumped by the Water
Department into the plaintiffs’ residences. PFOA also has
accumulated in the plaintiffs’ blood and has been detected in
the homes of other customers of the Water Department.
In 2006, the plaintiffs filed a complaint against DuPont in
the Circuit Court of Wood County, West Virginia. The plain-
tiffs asserted six common law claims, individually and on
behalf of a class of customers of the Water Department,
addressing the contamination of their municipal water supply
and the resulting presence of PFOA in their blood. The plain-
tiffs sought damages with respect to claims of negligence,
gross negligence, battery, trespass, and private nuisance. The
plaintiffs also sought injunctive relief to obtain long-term
diagnostic testing (medical monitoring) for latent diseases on
behalf of a class of Water Department customers exposed to
PFOA beginning in 2005. Additionally, the plaintiffs asserted
individual and class claims for medical monitoring, a com-
mon law tort first recognized by the West Virginia Supreme
Court of Appeals in 1991.1
1To sustain a claim for the tort of medical monitoring, a plaintiff must
prove that he or she has been significantly exposed to a proven hazardous
substance through the tortious conduct of the defendant and that, as a
result, the plaintiff has suffered a substantially increased risk of contract-
ing a serious latent disease, which makes it reasonably necessary for the
plaintiff to undergo periodic diagnostic medical examinations different
from what would be prescribed in the absence of the exposure. Bower v.
Westinghouse Elec. Corp., 522 S.E.2d 424, 432-33 (W. Va. 1999). Fur-
ther, medical monitoring procedures must exist that make early detection
of a disease possible. Id. at 433.
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DuPont removed the case to the federal district court,
invoking the court’s diversity jurisdiction. See 28 U.S.C.
§ 1332(a)(1). After conducting a hearing on the plaintiffs’
motion for class certification under Federal Rule of Civil Pro-
cedure 23(b), the district court concluded that the elements of
a medical monitoring tort could not be proved on a class-wide
basis using the type of evidence presented by the plaintiffs.
The district court therefore denied the plaintiffs’ motion for
class certification of their medical monitoring claims. The dis-
trict court further held that the plaintiffs had not met their bur-
den under Rule 23 for certification of a class to pursue
medical monitoring relief based on the plaintiffs’ claims of
negligence, gross negligence, battery, trespass, and private
nuisance (collectively, the traditional common law torts or
tort claims). The district court thus denied the plaintiffs’
motion for class certification of the traditional common law
tort claims.
The plaintiffs later amended their complaint to add individ-
ual and class claims asserting a cause of action for public nui-
sance. The plaintiffs also sought leave to file a second motion
for certification of a class to seek medical monitoring relief
incident to the traditional common law tort claims, except bat-
tery, which they had asserted in their earlier complaint. The
district court denied this request.
DuPont filed motions seeking summary judgment on all the
plaintiffs’ claims. The district court granted in part and denied
in part DuPont’s motions. The district court granted DuPont’s
motions with respect to all the plaintiffs’ traditional common
law tort claims, and the additional claim of public nuisance
(hereafter collectively, the traditional common law tort
claims). Rhodes v. E.I. Du Pont De Nemours and Co., 657 F.
Supp. 2d 751, 762-73 (S.D.W. Va. 2009). Based on that rul-
ing, the district court also denied as moot the plaintiffs’
motion for class certification of the public nuisance claim. Id.
at 778. However, the district court denied summary judgment
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with respect to the plaintiffs’ individual claims of medical moni-
toring.2 Id. at 774-777.
In order to appeal immediately the adverse summary judg-
ment and certification rulings, the plaintiffs filed a stipulation
of voluntary dismissal under Federal Rule of Civil Procedure
41(a)(1) of their individual claims for medical monitoring.
The district court entered final judgment for DuPont, from
which the plaintiffs filed this appeal.
II.
We review the district court’s award of summary judgment
de novo. PCS Phosphate Co. v. Norfolk S. Corp., 559 F.3d
212, 217 (4th Cir. 2009). We apply the same standard as the
district court, under which summary judgment is proper if the
nonmoving party fails to make a sufficient showing of an
essential element of that party’s case. Cray Commc’ns, Inc. v.
Novatel Computer Sys., Inc., 33 F.3d 390, 393 (4th Cir. 1994)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986)). Such a failure of proof renders all other facts imma-
terial. Id. Under that circumstance, the moving party is enti-
tled to summary judgment as a matter of law. Fed. R. Civ. P.
56.
We begin our review of the district court’s summary judg-
ment holdings by considering the plaintiffs’ traditional com-
mon law tort claims. Although these various tort claims
involve distinct elements of proof, the claims all require that
a plaintiff establish that the defendant’s conduct produced
some "injury" to the plaintiff or to the plaintiff’s property. See
Atkinson v. Harman, 158 S.E.2d 169, 173 (W. Va. 1967)
(duty, breach, and injury are essential elements of negli-
2The district court also rejected DuPont’s argument that the plaintiffs’
claims were barred by the statute of limitations. Rhodes, 657 F. Supp. 2d
at 762. The district court ruled that the statute of limitations had not run
because the plaintiffs alleged "continuing" torts. Id. at 760.
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gence); W. Va. Fire & Cas. Co. v. Stanley, 602 S.E.2d 483,
494 (W. Va. 2004) (person liable for battery if he or she acts
intending to cause harmful or offensive contact with person of
another and a harmful bodily contact directly or indirectly
results); Hark v. Mountain Fork Lumber Co., 34 S.E.2d 348,
352 (W. Va. 1945) (trespass is unauthorized entry onto the
land of another and doing damage to or interfering with his
use of his real property); Hendricks v. Stalnaker, 380 S.E.2d
198, 200 (W. Va. 1989) (private nuisance is "substantial and
unreasonable interference with the private use and enjoyment
of another’s land"); Hark, 34 S.E.2d at 354 (individual assert-
ing public nuisance claim in private capacity must assert "spe-
cial injury"). With respect to each of the plaintiffs’ traditional
common law tort claims, the district court concluded that the
accumulation of PFOA in the plaintiffs’ blood, and the
alleged risk of developing certain diseases in the future, did
not constitute an "injury" for purposes of proving each of
these common law claims. In reviewing this holding, we con-
sider the required element of "injury" in the context of each
of these traditional common law torts.
A.
Under West Virginia law, a plaintiff alleging negligence or
gross negligence is required to prove that he or she sustained
an injury caused by the defendant’s allegedly negligent con-
duct. See Atkinson, 158 S.E.2d at 173. Generally, such injury
must already have occurred, although a plaintiff sometimes
may recover for future effects of a present injury that are rea-
sonably certain to occur. See Cook v. Cook, 607 S.E.2d 459,
464 (W. Va. 2004).
In the present case, the plaintiffs concede that they do not
suffer currently from any illness or disease caused by their
exposure to PFOA. Instead, the plaintiffs assert that they are
injured because PFOA has accumulated in their blood. The
plaintiffs maintain that based on the presence of PFOA in
their bodies, they suffer a significantly increased risk of
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developing certain diseases, including liver disease, cho-
lesterol abnormalities, and certain cancers, when compared to
the general population’s risk of developing those diseases.
According to the plaintiffs, this increased risk of disease satis-
fies the "injury" requirement for negligence and gross negli-
gence under West Virginia law. We disagree with this
argument.
The presence of PFOA in the public water supply or in the
plaintiffs’ blood does not, standing alone, establish harm or
injury for purposes of proving a negligence claim under West
Virginia law. In such situations, a plaintiff also must produce
evidence of a detrimental effect to the plaintiffs’ health that
actually has occurred or is reasonably certain to occur due to
a present harm. See Cook, 607 S.E.2d at 464. Because the
plaintiffs did not present such evidence to the district court,
their claims of negligence and gross negligence failed as a
matter of law. See Cray Commc’ns, 33 F.3d at 393. Accord-
ingly, we hold that the district court did not err in awarding
summary judgment to DuPont on these negligence claims.
We next consider the plaintiffs’ claims of battery. In order
to prove a battery under West Virginia law, a plaintiff gener-
ally must demonstrate that the defendant inflicted a harmful
bodily contact on the plaintiff. See W. Va. Fire, 602 S.E.2d at
494. The plaintiffs in this case advance two arguments in sup-
port of their contention that they have suffered a battery under
West Virginia law. They first contend that they have suffered
a harmful bodily contact, within the meaning of Section 15 of
the Restatement (Second) of Torts (the Restatement). Under
Section 15 of the Restatement, a person suffers harmful bod-
ily contact when there is a "physical impairment of the condi-
tion of [the] body, or physical pain or illness." Restatement
(Second) of Torts § 15. Comment "a" to this provision states
that the term "physical impairment" includes any alteration in
the structure or function of any part of the body, even when
such structural change does not cause other harm. Id. cmt. a.
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Relying on comment "a," the plaintiffs maintain that they
have suffered a battery because PFOA has been added to their
blood as a result of DuPont’s release of that chemical into the
environment. The plaintiffs argue that even though they have
not actually suffered any physical harm based on their expo-
sure to PFOA, this "alteration in the structure" of their blood
is an injury sufficient to establish a battery. Alternatively, the
plaintiffs contend that the accumulation of PFOA in their
blood is an injury sufficient to establish a battery under West
Virginia law. See Restatement (Second) of Torts § 18(1)(b).
We disagree with these arguments.
The plaintiffs effectively ask us to expand the tort of bat-
tery under West Virginia law to include any chemical expo-
sure that results in potentially dangerous, detectable levels of
that chemical in a person’s body. The West Virginia Supreme
Court of Appeals has not adopted this view and, in fact,
expressly has required that a plaintiff alleging a battery dem-
onstrate "actual physical impairment." See Funeral Servs. by
Gregory, Inc. v. Bluefield Comm. Hosp., 413 S.E.2d 79, 82
(W. Va. 1991) (mere exposure accompanied by fear of con-
tracting disease is not battery), overruled on other grounds by
Courtney v. Courtney, 437 S.E.2d 436 (W. Va. 1993). Also,
the West Virginia Supreme Court of Appeals has not
embraced the alternative definition of battery advanced by the
plaintiffs, battery based on "offensive contact," as provided in
Section 18 of the Restatement.
In the absence of such action by the highest state court in
West Virginia, our role in the exercise of our diversity juris-
diction is limited. A federal court acting under its diversity
jurisdiction should respond conservatively when asked to dis-
cern governing principles of state law. See Day & Zimmer-
mann, Inc. v. Challoner, 423 U.S. 3, 4 (1975) (per curiam).
Therefore, in a diversity case, a federal court should not inter-
pret state law in a manner that may appear desirable to the
federal court, but has not been approved by the state whose
law is at issue. See id. Mindful of this principle, we decline
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the plaintiffs’ invitation to predict that the West Virginia
Supreme Court of Appeals would adopt the specific provi-
sions of the Restatement advanced by the plaintiffs. Accord-
ingly, under existing West Virginia law, we affirm the district
court’s award of summary judgment to DuPont on the plain-
tiffs’ battery claims.
We next consider the plaintiffs’ claims of trespass. Under
West Virginia law, to constitute a trespass, the defendant’s
conduct must result in an actual, nonconsensual invasion of
the plaintiff’s property, which interferes with the plaintiff’s
possession and use of that property. Hark, 34 S.E.2d at 352.
In this case, the plaintiffs failed to produce evidence showing
that the presence of PFOA in the water supplied to their
homes has damaged or interfered with the plaintiffs’ posses-
sion and use of their property. Because the plaintiffs were
unable to produce evidence supporting this essential element
of a trespass claim, the plaintiffs’ trespass claims failed as a
matter of law, and the district court did not err in awarding
summary judgment in favor of DuPont on these claims. See
Cray Commc’ns, 33 F. 3d at 393.
We turn now to address the plaintiffs’ private nuisance
claims. Under West Virginia law, a private nuisance arises
when a person or entity has created a "substantial and unrea-
sonable interference with the private use and enjoyment of
another’s land." Hendricks, 380 S.E.2d at 200. In contrast,
when a defendant’s conduct "unlawfully operates to hurt or
inconvenience an indefinite number of persons," a public nui-
sance is created. Duff v. Morgantown Energy Assocs., 421
S.E.2d 253, 257 (W. Va. 1992) (quoting Hark, 34 S.E.2d at
354).
The distinction between these two types of nuisance, how-
ever, is not simply a matter of tallying the number of people
affected by a defendant’s allegedly tortious conduct. As the
district court recognized, the proper characterization of a nui-
sance as either private or public depends on the nature of the
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interest affected by the defendant’s conduct. See id. at 257
n.7.
If the only interest that is invaded is an interest shared
equally by members of the public, then the alleged nuisance
is public in nature. See Int’l Shoe Co. v. Heatwole, 30 S.E.2d
537, 540 (W. Va. 1944). Such a circumstance is precisely the
situation presented here, because DuPont’s allegedly tortious
conduct interfered with the general public’s access to clean
drinking water. The fact that the water eventually was
pumped into private homes did not transform the right inter-
fered with from a public right to a private right. See Duff, 421
S.E.2d at 257 n.7. We therefore conclude, as the district court
did, that when a release of pollutants directly affects a munici-
pal water supply and does not interfere with any private water
source, such as a well drilled on private property, the presence
of the pollutants in the public water supply will not support
a private nuisance claim. Thus, we hold that the district court
did not err in entering summary judgment for DuPont on the
plaintiffs’ private nuisance claims. And, for the several rea-
sons stated above, we affirm the district court’s award of sum-
mary judgment to DuPont on the plaintiffs’ individual claims
of negligence, gross negligence, battery, trespass, and private
nuisance. Additionally, as a result of our holding that the dis-
trict court properly awarded summary judgment to DuPont on
the above individual claims, we do not reach the separate
issue of the timeliness of the plaintiffs’ request for class certi-
fication of these claims as that issue is now moot.
B.
We next address the plaintiffs’ public nuisance claims.
Ordinarily, a private citizen is not permitted to bring suit to
enjoin a public nuisance unless he or she has suffered a harm
that is "special." Int’l Shoe, 30 S.E.2d at 540. A "special"
harm is different in kind from any harm born by the popula-
tion at large. See Hark, 34 S.E.2d at 354; Int’l Shoe, 30 S.E.2d
at 540; Curry v. Boone Timber Co., 105 S.E. 263, 264 (W.
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Va. 1920). Thus, when a private citizen’s claim of public nui-
sance is not based on an injury that is "special" in nature, such
claim generally is insufficient as a matter of law. Int’l Shoe,
30 S.E.2d at 540.
In this case, the district court concluded that the plaintiffs
did not satisfy the "special injury" requirement for a claim of
public nuisance. This requirement, that a private individual
seeking to maintain a claim of public nuisance allege an
injury different in kind from that suffered by the general pop-
ulation, is a principle well-established under West Virginia
law. See Hark, 34 S.E.2d at 354; Int’l Shoe, 30 S.E.2d at 540;
Curry, 105 S.E. at 264. This limitation prevents multiple
actions seeking damages for minor injuries suffered by vari-
ous members of the public.
The plaintiffs contend, however, that this concern is unwar-
ranted here because they seek to enjoin a public nuisance on
behalf of a class, rather than on an individual basis for private
injuries suffered. Thus, the plaintiffs urge that we apply Sec-
tion 821C(2)(c) of the Restatement, which has created an
exception to the "special injury" requirement for class actions
brought to abate a public nuisance.
The district court correctly rejected this position advocated
by the plaintiffs. The district court explained, and we agree,
that although the Supreme Court of Appeals of West Virginia
generally has followed the Restatement’s guidance in devel-
oping West Virginia tort law and has recognized the impor-
tant function of public nuisance actions in remedying
environmental contamination, there is "no [West Virginia
statutory or common law] authority [suggesting] a class action
exception to the special-injury rule absent legislative mea-
sures." Rhodes, 657 F. Supp. 2d at 768 n.14.
The plaintiffs maintain, nonetheless, that the district court’s
holding is erroneous because it could unduly restrain the fil-
ing of collective actions to abate public nuisances. We are not
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persuaded by this argument, because it fails to acknowledge
that the Supreme Court of Appeals of West Virginia has not
recognized a class action exception to the "special injury"
requirement. We decline to recognize such an exception in the
first instance because, as we have stated, a federal court in the
exercise of its diversity jurisdiction should act conservatively
when asked to predict how a state court would proceed on a
novel issue of state law. See Day & Zimmermann, 423 U.S.
at 4.
The plaintiffs alternatively maintain, however, that they
have asserted a "special injury" for purposes of establishing
a public nuisance, because they have suffered a personal
injury or property damage that "normally [is] different in
kind" from that suffered by other members of the public. We
find no merit in this argument, because it is not supported
either by the facts alleged in the plaintiffs’ complaint or by
West Virginia law. Moreover, because the plaintiffs allege
that all the water customers exposed to PFOA since 2005
have suffered the same personal injury, the plaintiffs’ own
pleadings refute their contention of "special injury." Accord-
ingly, for all the reasons discussed above, we affirm the dis-
trict court’s entry of summary judgment for DuPont and
denial of class certification on the plaintiffs’ public nuisance
claims.
C.
The plaintiffs separately argue that even if they have failed
to establish an "injury" for purposes of proving the traditional
common law tort claims, they still may obtain medical moni-
toring relief incident to the traditional common law tort
claims by showing that DuPont’s tortious conduct caused
them to suffer an increased future risk of developing certain
diseases. In support of this argument, the plaintiffs contend
that in its Bower decision, the West Virginia Supreme Court
of Appeals relaxed the "injury" requirement for plaintiffs
seeking injunctive relief in the form of medical monitoring.
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Under this asserted interpretation of Bower, the plaintiffs con-
tend, for example, that they may recover medical monitoring
as a remedy for battery without demonstrating a harmful bod-
ily contact, provided that they can show an increased future
risk of developing diseases because of DuPont’s tortious con-
duct.
We disagree with this argument. The decision in Bower did
not relax the standard for establishing an "injury" for proof of
the traditional common law torts. Instead, the Bower decision
recognized an independent tort claim for medical monitoring,
which permits a plaintiff to recover the costs of diagnostic
testing for diseases that may develop in the future as a result
of a defendant’s conduct. Bower, 522 S.E.2d at 431. The "in-
jury" required to prove a medical monitoring claim is a "sig-
nificantly increased risk of contracting a particular disease
relative to what would be the case in the absence of expo-
sure." Id. at 433. Thus, under the decision in Bower, a plain-
tiff seeking medical monitoring as an element of damages for
a traditional common law tort must still prove the required
elements of that tort to obtain medical monitoring relief.
III.
Finally, we address DuPont’s argument that we lack appel-
late jurisdiction to address the merits of the one remaining
issue, namely, the plaintiff’s appeal of the denial of class cer-
tification of their medical monitoring claims. DuPont asserts
that the plaintiffs no longer have standing to advance this
argument on appeal because, by voluntarily dismissing their
individual claims for medical monitoring, the plaintiffs aban-
doned their interest in litigating the certification question. As
a result, DuPont contends, the plaintiffs have no personal
stake in this issue and do not satisfy the requirements for Arti-
cle III standing.
In response, the plaintiffs maintain that litigants routinely
are permitted to dismiss various claims in order to appeal
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other claims and, that under Supreme Court precedent, this
Court can review the denial of class certification for a particu-
lar claim even though no plaintiff presently is advancing indi-
vidual claims asserting that cause of action. The plaintiffs
further argue that by its plain terms, their stipulated dismissal
applied only to their individual medical monitoring claims.
Thus, the plaintiffs contend that they did not abandon their
stake in the certification question.
We begin our analysis by stating some general principles of
standing. Article III of the Constitution limits the jurisdiction
of the federal courts to the consideration of "cases" and "con-
troversies." U.S. Const. art. III, § 2. A case must be brought
by a party with a "personal stake" in the litigation. See U.S.
Parole Comm’n v. Geraghty, 445 U.S. 388, 396 (1980);
United States v. Hardy, 545 F.3d 280, 283 (4th Cir. 2008).
This personal interest must continue throughout the litigation,
including on appeal. Hardy, 545 F.3d at 283. Circumstances
may change while a case is pending, thereby leaving a plain-
tiff without the personal stake necessary to maintain Article
III standing. For example, claims can expire, or parties can
settle or dismiss their claims entirely. In such situations, the
district court or appellate court must dismiss the case for lack
of subject-matter jurisdiction. See, e.g., Distaff, Inc. v. Spring-
field Contracting Corp., 984 F.2d 108, 110-11 (4th Cir.
1993)(stating general rule that plaintiff may not appeal dis-
missal, with prejudice, obtained on his or her own motion).
Application of standing principles is more difficult, how-
ever, when a plaintiff seeks to assert class claims on behalf of
others. Generally, a class representative not only has a "per-
sonal stake" in the substantive claim he or she asserts, but also
a distinct procedural right to represent the interests of simi-
larly situated individuals. Geraghty, 445 U.S. at 402. This
second, representative interest sometimes gives a putative
class representative a sufficient "stake" in the class certifica-
tion question to appeal an adverse certification ruling even
after the putative class representative’s claim is mooted by
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intervening events. See id.; Deposit Guar. Nat’l Bank v.
Roper, 445 U.S. 326, 340 (1980).
Two conditions must be met, however, to retain Article III
jurisdiction. The "imperatives of a dispute capable of judicial
resolution [must be] sharply present," and there must be "self-
interested parties vigorously advocating opposing positions."
Geraghty, 445 U.S. at 403. These requirements ensure that a
putative class representative maintains a sufficiently concrete
interest in the certification question to satisfy the case-or-
controversy requirement of Article III. See, e.g., Roper, 445
U.S. at 336-37, 338 n.9 (putative class plaintiff continually
asserted interest in shifting costs of litigation to class mem-
bers and, thus, had standing to appeal adverse certification
ruling after individual claims were mooted).
To date, the Supreme Court has applied this narrow excep-
tion to the "personal stake" requirement only in cases involv-
ing involuntary dismissals. See Geraghty, 445 U.S. at 403;
Roper, 445 U.S. at 330. The Supreme Court has not addressed
the present issue, namely, whether Article III standing
requirements are satisfied when a putative class representative
who has voluntarily settled or dismissed his or her claims
thereafter appeals a denial of class certification. See Geraghty,
445 U.S. at 404 n.10.
This Court has held that a putative class representative who
voluntarily settles his case and releases all his individual
claims, under language providing for the release of "any and
all" monetary claims "including any claims for . . . compensa-
tion [that he or she] may have as a member/representative of
the putative class," may not thereafter appeal from an adverse
class certification ruling. Toms v. Allied Bond & Collection
Agency, Inc., 179 F.3d 103, 105-06 (4th Cir. 1999). Unlike
the settlement agreement in Toms, however, the language of
the stipulated dismissal before us did not mention the plain-
tiffs’ class claims. Rather, the full text of the dismissal stated,
"Pursuant to Civil Rule 41(a)(1), the parties hereby stipulate
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to Plaintiffs’ voluntary dismissal, with prejudice, of their
remaining medical monitoring claims in this case and stipu-
late that each party shall bear its own expenses, costs and
fees." At the time of this stipulation, only the plaintiffs’ indi-
vidual medical monitoring claims were pending in the district
court. Thus, the term "remaining" necessarily limited the
scope of the dismissal to those individual claims.
Considering this language and the voluntary nature of the
plaintiffs’ dismissal, we must determine whether the plaintiffs
satisfy the Article III standing requirements discussed above.
Other circuit courts addressing this issue have reached differ-
ent conclusions on the question whether a plaintiff may vol-
untarily settle or dismiss his or her individual claims and still
appeal a certification denial. Some courts have held that
standing is maintained when a named plaintiff expressly
reserves the right to appeal a certification denial. See Richards
v. Delta Air Lines, Inc., 453 F.3d 525 (D.C. Cir. 2006)
(express reservation of class claim preserves standing of class
representative to appeal certification denial); Dugas v. Trans
Union Corp., 99 F.3d 724 (5th Cir. 1996) (reservation of right
sufficient to give putative class representative who settles
individual claims standing to appeal denial of class certifica-
tion). But see, Narouz v. Charter Commc’ns, LLC, 591 F.3d
1261 (9th Cir. 2010) (putative representative retains standing
to appeal unless releases interest in class claims in settlement
agreement). Other courts have held that even an express reser-
vation of right is not sufficient to satisfy Article III standing
requirements. See Muro v. Target Corp., 580 F.3d 485 (7th
Cir. 2009) (recitation in settlement agreement that plaintiff
reserves right to appeal denial of class certification not suffi-
cient to create concrete interest in class certification issue that
Roper requires); Anderson v. CNH U.S. Pension Plan, 515
F.3d 823 (8th Cir. 2008) (same).
Although several of these cases held that the language of a
plaintiff’s settlement agreement is determinative of that plain-
tiff’s "stake" in an appeal, we focus our review on the stand-
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ing requirements of Article III. Applying the principles set
forth by the Supreme Court, we conclude that when a putative
class plaintiff voluntarily dismisses the individual claims
underlying a request for class certification, as happened in this
case, there is no longer a "self-interested party advocating" for
class treatment in the manner necessary to satisfy Article III
standing requirements. See Geraghty, 445 U.S. at 403. Thus,
we hold that we lack jurisdiction to decide the issue whether
the district court abused its discretion in denying the plain-
tiffs’ request for class certification of their medical monitor-
ing claims.
IV.
In conclusion, we affirm the district court’s award of sum-
mary judgment to DuPont on all the plaintiffs’ traditional
common law tort claims, namely, the claims of negligence,
gross negligence, battery, trespass, private nuisance, and pub-
lic nuisance. We do not address the separate matter of the dis-
trict court’s denial of class certification of these traditional
common law tort claims as these issues are now moot.
Finally, we dismiss the plaintiffs’ appeal of the district court’s
class certification ruling on their medical monitoring claims
for lack of jurisdiction.
AFFIRMED IN PART;
DISMISSED IN PART
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