BIO LAB INC v. TARTT (2026)

This case is before this Court on two certified questions from the United States District Court for the Northern District of Georgia. We set out those questions in full below. The general issue presented for our consideration is whether, under Georgia law, equitable relief in the form of an injunction establishing a medical-monitoring program is a legally cognizable remedy. The injured parties say that their specifically requested equitable remedy, an injunction ordering the creation of a medical-monitoring fund, is cognizable and appropriate. The defendants counter that, in the absence of allegations of present physical injury, the district court is precluded from granting the injured parties’ requested relief. For the reasons explained below, we conclude that, regardless of the scope and form of equitable relief specifically requested by a plaintiff, the availability of an equitable remedy in a given case turns on whether the plaintiff suffered a legally cognizable injury and whether that injury meets the well-settled criteria for entitlement to equitable relief under Georgia law. We decline, however, to apply these principles in the context of the facts of this case for reasons explained below. And we further conclude that the proper form and scope of an injunction in a diversity case brought in federal court is likely a question of federal law on which it would be inappropriate for us to opine absent a clear holding by the federal courts that the form and scope of equitable remedies available to a federal court presiding over a diversity case are defined by the underlying state law. So, we provide limited answers to the questions.

1. Background

In September 2024, a fire occurred at the Bio-Lab chemical plant in Rockdale County, releasing a substantial “toxic chemical plume” and prompting an evacuation order for over 17,000 people living near the facility. Hundreds of Rockdale County residents subsequently visited emergency rooms and clinics complaining of symptoms associated with exposure to smoke from the fire, which contained toxic chemicals like hydrogen cyanide. In response to the fire, a putative class of plaintiffs (the “Plaintiffs”) — residents and businesses near the chemical plant — filed suit in the United States District Court for the Northern District of Georgia against entities connected with the fire, including defendant Bio-Lab, several parent companies who allegedly operated the Bio-Lab plant directly, and the controlling shareholder of Bio-Lab's parent company (collectively, the “Defendants”).

The Plaintiffs’ complaint raised negligence, trespass, nuisance, and strict liability claims, but those claims were not based on a present physical injury resulting from the fire. Instead, the Plaintiffs asserted that their exposure to the smoke resulted in, among other things, an increased risk of disease or illness and a present need for medical monitoring to ensure timely detection of any adverse health consequences associated with their exposure. In addition to monetary damages, the Plaintiffs sought equitable remedies, specifically requesting, as relevant here, injunctive relief in the form of a court-created, Defendant-funded medical monitoring program.

Medical monitoring generally refers to periodic diagnostic testing to assess whether a plaintiff exposed to toxic substances is becoming or has become ill or impaired. See, e.g., Restatement (Third) of Torts: Miscellaneous Provisions § 1_0 cmt. c, Tentative Draft No. 3 (2024); George W.C. McCarter, Medical Sue-Veillance: A History and Critique of the Medical Monitoring Remedy in Toxic Tort Litigation, 45 Rutgers L. Rev. 227, 230 (1993). It is typically sought in the absence of an immediate manifestation of harm, covers the period between exposure and manifestation, and is distinct from compensation for present bodily harm, the enhanced risk of harm, and fear or apprehension of future harm. Restatement (Third) of Torts: Miscellaneous Provisions § 1_0 cmt. c, Tentative Draft No. 3 (2024). It is primarily concerned with early detection of not yet manifested harm for the purpose of mitigating or addressing said harm following exposure to a toxic substance. McCarter, 45 Rutgers L. Rev. at 229–30.¹

The Defendants moved to dismiss that request for equitable relief, arguing that, under Georgia law, the requested remedy is unavailable in the absence of allegations of present physical injury. In ruling on the motion to dismiss, the district court surveyed existing case law but, understandably given the dearth of Georgia case law on medical monitoring in connection with mass torts, was “left with considerable uncertainty as to whether Georgia law permits medical monitoring as a tort remedy absent a current physical injury.” Discerning no clear answer to that question, the district court opted to seek our input and certified the following questions to this Court ² :

(1) Under Georgia law, can a plaintiff exposed to toxic substances which may cause future disease obtain equitable relief in the form of medical monitoring costs absent an allegation of present physical injury; and

(2) If so, what standard must the plaintiff meet to obtain such relief?

1. 2. Analysis

We appreciate the district court's invitation to weigh in on the issues of Georgia law raised in this case. As noted above, the district court wants to know whether equitable relief may take the form of an injunction creating a defendant-funded medical monitoring program when a plaintiff does not allege present physical injury. And, if the answer to that question is “yes,” the district court wants to know what a party must show to obtain that equitable relief. One reading of these questions strikes us as particularly fact-bound to the extent they ask whether a plaintiff with certain characteristics bringing certain claims can obtain a certain kind of equitable relief. That seems like the ultimate question posed by the Defendants’ motion to dismiss, and we would not presume to answer that question on the district court's behalf. So, we do not adopt that reading of the questions.

Instead, we read the district court's questions as implicating two broader legal issues with relevance beyond the specific facts of this case: First, under what circumstances is equitable relief available? And second, when equitable relief is available, what is the appropriate form and scope of that relief? As explained below, Georgia law provides guiding principles for the circumstances in which equitable relief is available. And, we believe, federal law likely governs the appropriate form and scope of equitable relief when such relief is warranted under state law.

(a) We turn first to the availability of an equitable remedy. As the district court recognized (and as discussed further below), in a federal diversity case like this one, the availability of equitable relief is governed generally by state law (subject to traditional federal limits on the equity power). See, e.g., Zaki Kulaibee Establishment v. McFliker, 771 F.3d 1301, 1310–11 (11th Cir. 2014); Sonner v. Premier Nutrition Corp., 971 F.3d 834, 843–44 (9th Cir. 2020); Vital Pharms., Inc. v. Alfieri, 23 F.4th 1282, 1297–98 (11th Cir. 2022) (W. Pryor, CJ, concurring). So we begin with a review of some principles of Georgia law necessarily implicated by this case.

Under Georgia law, “a party invoking the power of a court to craft an equitable remedy,” or a legal remedy for that matter, “must first identify some legally cognizable ‘wrong’ or ‘injury’ that needs to be remedied.” Williford v. Brown, 299 Ga. 15, 18, 785 S.E.2d 864 (2016) (punctuation omitted). Georgia law recognizes numerous cognizable harms, including, among others, physical injury, see Gardei v. Conway, 313 Ga. 132, 139, 868 S.E.2d 775 (2022); Harvey v. Merchan, 311 Ga. 811, 815, 860 S.E.2d 561 (2021), the invasion of property rights, see Williams v. Harris, 207 Ga. 576, 579, 63 S.E.2d 386 (1951), or the government's violation of a statutorily created public duty, see Sons of Confederate Veterans v. Henry County Bd. of Comm'rs, 315 Ga. 39, 64–65, 880 S.E.2d 168 (2022). See also Collins v. Athens Orthopedic Clinic, 307 Ga. 555, 563, 837 S.E.2d 310 (2019) (holding that, at motion to dismiss stage, allegations of “imminent and substantial” harm are sufficient to allege cognizable injury).

Of course, whether a plaintiff has suffered a legally cognizable injury is a separate question from whether that plaintiff is entitled to some form of relief — legal or equitable — as a result of that injury. See Davis v. Passman, 442 U.S. 228, 239, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) (“[T]he question whether a litigant has a ‘cause of action’ is analytically distinct and prior to the question of what relief, if any, a litigant may be entitled to receive.”). We have recognized that, as a general matter, if a plaintiff establishes in a given case that his legal rights were violated — that is, he proves he suffered a cognizable injury — he is entitled to a remedy. See Walmart Stores East, LP v. Leverette, 321 Ga. 854, 859, 917 S.E.2d 702 (2025). And this is true regardless of whether the plaintiff establishes actual damage as a result of the violation of his legal rights. See id. at 862, 917 S.E.2d 702 (noting that nominal damages allow “a plaintiff to maintain an action to establish and vindicate her rights without having to prove damages”); Wasserman v. Franklin County, 320 Ga. 624, 631–32, 911 S.E.2d 583 (2025) (discussing violations of private rights that did not require proof of actual harm and could be vindicated by nominal damages award and noting distinction between an injury, i.e., “a legal injury,” and damages, i.e., “real-world harm suffered by a party”); Williams, 207 Ga. at 579, 63 S.E.2d 386 (“The law infers some damage from the invasion of a property right; and if no evidence is given of any particular amount of loss, it declares the right by awarding what it terms nominal damages.” (quotation marks omitted)).

Establishing entitlement to equitable relief, however, requires more than showing just a cognizable legal injury. As a threshold matter, the litigant seeking to invoke equity also must show the absence of an adequate remedy at law. Hunt v. Richmond County Bd. of Educ., 292 Ga. 497, 498, 739 S.E.2d 306 (2013); OCGA § 23-1-4 (“Equity will not take cognizance of a plain legal right where an adequate and complete remedy is provided by law[.]”). In other words, when existing legal means of redress would fully vindicate a litigant's rights, the litigant is not entitled to an equitable remedy. See Hunt, 292 Ga. at 498–500, 739 S.E.2d 306; Merchant Law Firm v. Emerson, 301 Ga. 609, 615, 800 S.E.2d 557 (2017) (affirming dismissal of claim for injunctive relief where plaintiff had adequate remedy at law).

Likewise, “[b]are fears of injury will not authorize” equitable relief. Cathcart Van & Storage Co. v. Atlanta, 169 Ga. 791, 793, 151 S.E. 489 (1930) (“A court of equity should not exercise its extraordinary powers where there is no grave danger of impending injury.”). See also Lue v. Eady, 297 Ga. 321, 329, 773 S.E.2d 679 (2015) (“Courts of equity will not exercise the power of injunctive relief to allay mere apprehensions of injury, but only where the injury is imminent and irreparable and there is no adequate remedy at law.”); Hunt, 292 Ga. at 500, 739 S.E.2d 306 (“[T]he mere apprehension of injury does not support the grant of an injunction.”). Rather, where a plaintiff seeks an equitable remedy for a threatened legal injury, that injury must be imminent, not remote, before equitable relief is authorized. See City of Willacoochee v. Satilla Rural Elec. Membership Corp., 283 Ga. 137, 138, 657 S.E.2d 232 (2008).

In addition to those limits, equity follows law. OCGA § 23-1-6. That is, “a trial court may not utilize its equitable powers to afford relief contrary to the law.” Cooksey v. Landry, 295 Ga. 430, 434, 761 S.E.2d 61 (2014). See also, e.g., DOT v. Am. Ins. Co., 268 Ga. 505, 509, 491 S.E.2d 328 (1997) (equitable relief “is not available when the grant thereof would violate the express provision of a statute”).

With these principles in mind, we return our focus to the specifics of the district court's question: whether equitable relief is available under the circumstances present in this case, that is, where the plaintiffs were exposed to toxic substances which may cause future disease but allege no present physical injury. This question, as our prior discussion shows, is answered with a two-part analysis. First, whether the Plaintiffs have alleged the existence of a cognizable injury, and second, whether that cognizable injury (if it exists) meets the requirements for remediation through equitable relief. And that analysis must be undertaken in the context of this case's procedural posture. See Collins, 307 Ga. at 560–62, 837 S.E.2d 310.

As noted above, this case is at the motion-to-dismiss stage, so resolving the issue of whether equitable relief is available will first involve a thorough and intensive evaluation of whether the Plaintiffs’ complaint includes sufficient factual allegations to demonstrate both a legally cognizable injury and the necessity of equitable relief to remedy that injury. But this Court, when answering questions certified to us by a federal court, does not “reach the merits of the underlying case; instead, we answer the questions posed to us only in a general sense, not as applied to the facts and circumstances of this ongoing litigation[.]” PNC Bank, Nat. Assn. v. Smith, 298 Ga. 818, 819 n.4, 785 S.E.2d 505 (2016). Thus, we respectfully decline to answer the district court's questions to the extent that it calls on us to decide the ultimate issues raised by the Defendants’ motion to dismiss. Rather, we leave it to the district court to apply the principles detailed above to the facts alleged in this case.

(b) That brings us to the second issue raised by the district court's questions: when equitable relief is available, what is the appropriate form and scope of that relief? Unlike the question of entitlement to equitable relief (something we agree with the district court that state law governs), the form of equitable relief that a federal court sitting in diversity may grant may (we believe) be largely a question of federal law. See Guaranty Trust Co. v. York, 326 U.S. 99, 106, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945); Perfect Fit Indus. v. Acme Quilting Co., 646 F.2d 800, 805–07 (2d Cir. 1980); Vital Pharms., 23 F.4th at 1297 (W. Pryor, CJ, concurring) (“Guaranty Trust and other precedents postdating Erie suggest that the award of equitable relief in diversity cases remains governed by traditional equitable principles and not by state law.”). We acknowledge that this is a surprisingly thorny issue. See generally 19 Charles Alan Wright et al., Federal Practice and Procedure § 4513 (rev. 3d ed. 2026); Vital Pharms., 23 F.4th at 1293–99 (W. Pryor, CJ, concurring); Michael T. Morely, The Federal Equity Power, 59 BC L. Rev. 217 (2018) (discussing unsettled equity choice-of-law issues in federal diversity cases). But we think the best reading of the relevant decisional law — which is not exactly a beacon of clarity — is that the appropriate form and scope of equitable relief must be determined as a matter of federal law. Allow us to explain.

The leading United States Supreme Court case on this issue, Guaranty Trust, is “not as clear as might be desired.” 19 Wright & Miller § 4513. It ultimately held that when a state statute of limitation bars recovery, the federal equity power cannot overcome that barrier to afford relief that would be unavailable for an equitable claim in state court. 326 U.S. at 110, 65 S.Ct. 1464. But, along the way, Guaranty Trust suggested both that the federal equity power remains separate and distinct from state law and that a federal court sitting in diversity and applying equity should be nothing more than the functional equivalent of another state court of the state in which it sits. See, e.g., id. at 105–06, 108–09, 65 S.Ct. 1464. The Court also suggested that “rights” are governed by state law, while “remedies” are governed by federal law. See id. at 106–07, 109, 65 S.Ct. 1464. So Guaranty Trust hardly resolves all the complex issues implicated by the interplay of state and federal equity law in diversity cases.

While the precise interplay between federal and state equity law in diversity cases remains unsettled, commentators and courts have drawn some general principles from Guaranty Trust and subsequent decisions applying that case. For example, “permanent injunctions ․ in general may be granted in a diversity case only if authorized by the relevant state law[.]” 19 Wright & Miller § 4513.³ See also, e.g., Vital Pharms., 23 F.4th at 1297 (W. Pryor, CJ, concurring) (concluding that “the extent of a court's power to award a permanent injunction” would likely depend on state law); System Operations, Inc. v. Scientific Games Dev. Corp., 555 F.2d 1131, 1143 (3d Cir. 1977) (“New Jersey law defines all the rights and liabilities of the parties including the question whether special damages need be shown or alleged. This is true both as to the action for damages, and as to the prayer for permanent injunctive relief.” (citations omitted)). But a leading treatise concludes that state law “clearly cannot commit the federal courts to grant [equitable] relief ․ contrary to restraints imposed by the Constitution or an Act of Congress.” 19 Wright & Miller § 4513. Similarly, some courts have concluded that state law cannot abrogate the longstanding federal “inadequate-remedy-at-law” prerequisite for equitable relief. See, e.g., Sonner v. Premier Nutrition Corp., 971 F.3d 834, 844 (9th Cir. 2020). See also Guaranty Trust, 326 U.S. at 105–06, 65 S.Ct. 1464 (“Equitable relief in a federal court is of course subject to restrictions: ․ a plain, adequate and complete remedy at law must be wanting[.] ․ That a State may authorize its courts to give equitable relief unhampered by any or all such restrictions cannot remove these fetters from the federal courts.”).

Conversely, “federal courts are free to follow the practices and procedures authorized under the Federal Rules [of Civil Procedure] or an Act of Congress, despite the fact that a particular practice or procedure might not be available in a state court and might be viewed as ‘remedial.’ ” 19 Wright & Miller § 4513. Further, federal discretion in equity is at its zenith when state remedial law is “silent or opaque.” Id. And, crucially, some have interpreted Guaranty Trust to mean that “[s]tate law does not govern the scope of the equity powers of the federal court[,] ․ even when state law supplies the rule of decision.” Perfect Fit Indus., 646 F.2d 800 at 806 (emphasis added). In Perfect Fit Industries, for example, the Second Circuit affirmed a district court order enjoining the defendant in a New York unfair competition claim to recall offending products from customers—even though no New York state court had ever ordered such a recall.⁴ Id. at 806–07. The district court properly applied New York law to evaluate the claim for injunctive relief, id. at 802, but New York law did not limit the district court's power to exercise its broad equitable discretion to order the recall, id. at 805–06.

Against this backdrop, we are persuaded that, in a federal diversity case, a plaintiff's entitlement to equitable relief is likely governed generally by state law (subject to traditional federal limits on the equity power), see, e.g., Zaki Kulaibee Establishment, 771 F.3d at 1310–11; Sonner, 971 F.3d at 844; Vital Pharms., 23 F.4th at 1297–98 (W. Pryor, CJ, concurring), while the precise nature or scope of that relief is likely entrusted to the discretion of the federal district court exercising its equitable powers, which are not created or conferred by state law, see, e.g., Perfect Fit Indus., 646 F.2d at 806–07; Guaranty Trust, 326 U.S. at 106, 65 S.Ct. 1464 (“[A] federal court may afford an equitable remedy for a substantive right recognized by a State even though a State court cannot give it.”).⁵ In other words, federal courts sitting in diversity retain authority under federal law to fashion an equitable remedy suitable to the circumstances of a particular case—especially when state law is unclear.

So—as we understand the current state of the admittedly ambiguous law—“a federal court, although limited by state jurisprudence on the question of whether the injunction remedy may be granted, is free ․ to decide for itself what the scope and content of that injunction should be as befits the historically discretionary character of equity jurisprudence.” Wright & Miller § 4513 (explaining Perfect Fit Indus., 646 F.2d at 806). See also Sonner, 971 F.3d at 841–43 (holding that federal court must apply “traditional equitable principles before awarding restitution” under state law and collecting similar cases). State law provides the basis for relief; it does not necessarily constrain the scope of that relief. And that seems especially true where, as here, state law supplies no clear answer as to the availability of a specific form of injunctive relief. See Perfect Fit Indus., 646 F.2d at 806.

We therefore decline to opine on whether the specific form of equitable relief sought by the Plaintiffs here is appropriate. Doing so, we think, could have the effect of limiting the district court's discretion to fashion appropriate equitable relief under the circumstances of this case. Assuming for the sake of argument that Plaintiffs show they are entitled to injunctive relief, it would be for the district court — not this Court — to fashion an appropriate injunction in the first instance.⁶ Concluding otherwise, in our view, would raise concerns about the balance of power between state and federal courts.

We also think passing on this issue would be premature at this stage of the litigation. The Plaintiffs might be unable to establish entitlement to equitable relief at all, much less injunctive relief in the form of medical monitoring. In that case, whatever we say about the scope of a medical monitoring injunction would be anticipatory. See GEICO Indem. Co. v. Whiteside, 311 Ga. 346, 346 n.1, 857 S.E.2d 654 (2021); CSX Transp., Inc. v. City of Garden City, 279 Ga. 655, 658 n.5, 619 S.E.2d 597 (2005). We therefore respectfully decline to address whether Plaintiffs are entitled to a medical monitoring injunction, at least at this stage.

Of course, if the district court or another federal court disagrees with our assessment, determines that Georgia law is dispositive as to the proper form and scope of an injunction granted to Plaintiffs, and certifies that question to this Court, we might then address the issue. That is to say, if a federal court determines that equitable relief is appropriate (or properly asserted) and that the form and scope of the equitable remedy fashioned by a district court sitting in a diversity jurisdiction case is governed by the applicable state law, then the question of whether the remedy of an injunction creating a medical monitoring fund is within the power of equitable remedies in Georgia would be potentially dispositive of the case. But we remain of the opinion that, in this case's current procedural posture, this issue is properly addressed in the first instance — if at all — by the district court.⁷

Certainly, the district court might choose in the first instance to limit the scope of appropriate equitable relief based on its understanding of Georgia law. It might conclude (again, assuming Plaintiffs demonstrate entitlement to equitable relief) that an injunction ordering medical monitoring would be inappropriate under Georgia law. But we see no reason to make that determination on the district court's behalf, especially when it would at this stage be anticipatory. So we express no view on whether the Plaintiffs can ultimately obtain injunctive relief in the form of medical monitoring.

Certified questions answered in part and declined in part.

FOOTNOTES

1.   Courts disagree on whether medical monitoring is best considered a cause of action or a remedy. See Restatement (Third) of Torts: Miscellaneous Provisions § 1_0 cmt. m, Tentative Draft No. 3 (2024) (“Some courts characterize medical monitoring claims as discrete freestanding causes of action. ․ Other courts characterize medical monitoring claims as a remedy for other (sometimes unidentified) causes of action.”). See also Sadler v. PacifiCare of Nev., 130 Nev. 990, 998, 340 P.3d 1264 (2014) (noting that some jurisdictions have “concluded that the cost of medical monitoring may be recovered[ ] either as an independent claim or as a remedy for an established tort”). We need not resolve this dispute in order to partially answer the questions as framed by the district court.

2.   The district court's questions were certified to this Court pursuant to Supreme Court Rule 46, which provides in relevant part:When it appears to the Supreme Court of the United States, any federal appellate or district court, or any state appellate court that there is involved in any proceeding before it a question regarding the laws of this State which is determinative of that proceeding and there are no clear controlling precedents in the appellate decisions of this State, such court may certify such a question of the laws of Georgia to this Court for instructions.

3.   “It goes without saying that an injunction is an equitable remedy.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 311, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982).

4.   Although Perfect Fit Industries did not call the injunction imposed a “permanent injunction,” its description of the injunctive relief ordered supports that it was permanent in nature. See 646 F.2d at 804 (“The order thus enjoined Acme from using the offending trade dress immediately and directed Acme to surrender to Perfect Fit's counsel all offending J-boards and other materials in its possession and to send the recall letter to each of Acme's customers by June 3, 1980.”).

5.   Some courts refer to this distinction, as the Supreme Court did in Guaranty Trust, as rights (governed by state law) and remedies (governed by federal law). See, e.g., Davilla v. Enable Midstream Partners L.P., 913 F.3d 959, 972–73 (10th Cir. 2019) (concluding that “the practice of borrowing state rules of decision does not apply with equal force to determining appropriate remedies, especially equitable remedies, as it does to defining actionable rights”). But regardless of how it is formulated, there is a difference between the substantive entitlement to some equitable remedy and the precise nature and scope of that remedy.

6.   Again, we express no view on whether Plaintiffs could make such a showing. We merely observe the consequences of that hypothetical showing.

7.   We think it worth noting that, under Georgia law, our superior courts are vested with considerable discretion to craft an appropriate equitable remedy. Indeed, the equity power is “extraordinary.” Cathcart Van & Storage Co., 169 Ga. at 793, 151 S.E. 489. It “seeks always to do complete justice,” OCGA § 23-1-7, and “considers that done which ought to be done,” OCGA § 23-1-8. Georgia equity power confers “broad discretion to fashion an equitable remedy based upon the exigencies of the case.” Barngrover v. City of Columbus, 292 Ga. 486, 489, 739 S.E.2d 377 (2013) (emphasis added). And because the equity power is vested exclusively in Georgia superior courts and the State-wide Business Court, OCGA § 23-1-1, Georgia appellate courts review the exercise of equitable power only for the abuse of discretion, Barngrover, 292 Ga. at 489, 739 S.E.2d 377. See also Srisovana v. Cambodian Buddhist Society, 269 Ga. App. 600, 602, 604 S.E.2d 637 (2004) (an appellate court “will not disturb the [superior] court's holdings both as to fact and as to the proper form of injunctive relief unless the record shows an abuse of discretion, a total absence of fact to support its conclusion, or an erroneous application of the law”). With respect to the grant of injunctive relief, like that requested in this case, we have emphasized that such relief “should be crafted in a manner that is the least oppressive to the defendant while still protecting the valuable rights of the plaintiff,” which necessarily implicates the specific facts of the case. State Farm Mut. Auto. Ins. Co. v. Mabry, 274 Ga. 498, 510, 556 S.E.2d 114 (2001). See also Expedia, Inc. v. City of Columbus, 285 Ga. 684, 691, 681 S.E.2d 122 (2009) (affirming grant of injunctive relief but holding that injunction was “overreaching” under the facts of the case and directing superior court to limit the scope of the injunction).

Bethel, Justice.

All the Justices concur, except Peterson, C.J., and LaGrua, J., disqualified.