In what has become a near legal certainty following plant explosions, train wrecks with chemical spills, and other large-scale accidents, plaintiffs often file suit and seek to certify personal injury and property damage classes under Federal Rule of Civil Procedure 23 or state class action laws. Increasingly, class actions are filed within hours of an incident, well before the smoke clears or the facts are known. In hundreds of environmental tort class actions filed over the past forty years, while the legal lines for certifying environmental tort class actions are not always bright, they are well established—environmental class actions are generally not certified. Of twenty-five or so putative environmental tort class actions filed over the last two years, a majority are still are not certified, but a few courts, employing distinctive views of commonality and predominance, and considering local conditions, certified class actions under unique facts.
Key Class Certification Considerations
The rules for certification of environmental tort class actions are well known. First, a plaintiff must satisfy the four necessary requirements in Rule 23(a): numerosity; commonality; typicality; and adequacy. Second, assuming the Rule 23(a) requirements are met, a plaintiff must then satisfy the requirements of Rule 23(b). For environmental tort class actions, under Rule 23(b)(3), a plaintiff must show that “common issues of law or fact” “predominate over any individual questions” and that “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” In addition to the Rule 23 requirements, numerous courts considering environmental tort class actions also regularly address ascertainability—namely, whether and how the class is defined. In most cases, four issues drive the analysis of environmental tort class actions: (1) whether “common” issues meet the modern definition under Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011); (2) whether common issues “predominate” over individual issues under Rule 23(b)(3); (3) whether the class is “ascertainable;” and (4) whether plaintiffs provide sufficient facts at the pleading stage and offer sufficient proof at the evidentiary stage.
General Rule: Denying Certification of Environmental Tort Class Actions
Of the post-2017 environmental tort class actions, certification was denied in the lion’s share of cases, with courts typically finding a lack of commonality and a lack of predominance to defeat certification. A good example is Lafferty v. Sherwin-Williams Co., 2018 U.S. Dist. Lexis 141549 (D.N.J. Aug. 21, 2018), where plaintiffs sought to certify a class of residential property owners who alleged that a Sherwin-Williams predecessor released paint, varnish, coatings, and related products into areas surrounding Gibbsboro, New Jersey. Alleging a variety of “exposure pathways,” the plaintiffs sought class certification for elevated levels of chemicals, which allegedly resulted in physical injuries, increased risk of disease, and diminution in the value of their properties. The plaintiffs defined the class area as “all persons who have owned or rented property, resided, or worked within the Class Area at any time since January 1, 1930.” Id. at *5. The class area also included all homes and other structures connected to, or within the fate and transport of, one or more of the substances allegedly manufactured or used in the area. For this class, three subclasses were proposed: all persons within the class who had no known medical diagnosis of a contaminant-related bodily injury, including cancer; all persons who had been diagnosed with a contaminant-related bodily injury, including cancer; and all persons who owned or have owned property within the class. Id.
The Sherwin-Williams court turned first to “commonality,” finding that it “requires the plaintiff to demonstrate that the class members have suffered the same injury.” Id. at *12 (citations omitted). The court then focused on predominance, which the court found “more demanding than commonality and requires more than a common claim.” Id. at *13 (citations omitted). Given the claims of historical emissions, the court noted that to certify the class, “individual fact finding is essential to determine whether one of these hazardous substances impacted someone,” and “[t]heir potential exposures, if any, are likely drastically different.” Id. The court concluded, “Conducting such causative inquiries on a class-wide basis would be problematic and wildly inaccurate—individualized proceedings are necessary . . . . We cannot do this for thousands of people and call it a class-action.” Id. at *13–14 (citations omitted). Finding a lack of predominance, the court denied certification. Id. at *15.
Another recent decision denying certification is Modern Holdings, LLC v. Corning, Inc., 2018 U.S. Dist. Lexis 52559 (E.D. Ky. Mar. 29, 2018), where the plaintiffs alleged that the owners of a glass manufacturing plant intentionally or negligently released toxic chemicals during its sixty years of operation. Alleging releases of contaminated air, water, and soil within a five-mile radius of the plant, the plaintiffs defined the class as “all persons who at any time between 1952 and November 27, 2013, resided within the Affected Area or who owned off-Site property within the Affected Area as of November 27, 2013.” Id. at *5. The plaintiffs defined the “Affected Area” as a “parabolic shape extending 4,000 feet to the North of the on-Site [sic] smoke stacks, 12,000 feet to the East, 4,000 to the South, and 3,000 to the West.” Id. at *6.
Citing Dukes, the court found that simply identifying “common” questions was not enough. The court noted, “Commonality requires the plaintiff to demonstrate the class members have suffered the same injury.” 2018 U.S. Dist. Lexis 52559, at *17 (citations omitted). Citing Dukes, and reflecting the growing majority rule, the court found that “[w]hat matters to class certification is not the raising of common questions—even in droves—but rather the capacity of classwide proceedings to generate common answers.” Id. at *23. The plaintiffs failed to show that their listed common questions would elicit common answers leading to classwide relief. Id.
Also dooming certification in Modern Holdings was a lack of typicality. As the court noted, one plaintiff claimed to have diabetes, a bleeding ulcer, gout, and chronic bronchitis, while another plaintiff had trouble breathing and nerve problems. And another plaintiff had “prostate cancer, and another had a brain tumor.” Id. at *28. In short, the court concluded the named plaintiffs had unique medical histories and factual backgrounds, which may affect determinations of causation. Id. at *28–29. Reviewing the property claims, the court noted that while the plaintiffs identified 3,000 distinct parcels, they were not all similarly situated in relation to the defendants’ property. Variations in distance to the alleged source of contamination, as well as distances to other potential sources of contamination, would affect the typicality of the named plaintiffs’ claims.
After discussing various expert affidavits presented by the plaintiffs on health and property issues, the court concluded that “[n]one of this information, however, resolves the fact that individual questions predominate over common questions, or the matter of whether class action treatment is a superior method of resolving these controversies.” Id. at *47. The court elaborated:
The varied nature of the named plaintiffs’ afflictions, their lengths of exposure, the sources through which their alleged exposure occurred, their unique medical histories, inconsistencies between the injuries from which the named plaintiffs suffer and those they complain of, etcetera, all reveal individual issues that predominate over common issues, including statute of limitations concerns, precluding a Rule 23(b)(3) class.
Id. The named plaintiffs each allegedly had been exposed to toxic substances at different times, and in different ways, between 1952 and 2013, a sixty-one year period. Id. And some of the named Plaintiffs suffer from zero of the listed diseases known to result from the listed diseases known to result from the listed toxic substances.” Id. at *47–48. For these reasons, the court denied class certification.
Ascertainability was also a key consideration for the Sherwin-Williams court. 2018 U.S. Dist. Lexis 141549, at *14–15. The court found that a class defined as an “area containing all homes and other structures to or within the fate and transport of one or more of Defendants’ Contaminants,” could not be “ascertainable without individualized investigation and creates an impermissible fail-safe class where the question of whether a person qualifies as a member depends on whether the person has a valid claim.” Id. In other words, “the class itself is rendered impossible to identify without extensive individual fact-finding or mini-trials.” Id. at *15. Rejecting the definition of the class, the court held that the plaintiffs were asking the court to “greenlight a Class Area defined as anywhere there is contamination,” a step the court was not prepared to take. For all these reasons, the court dismissed the case. Id.
Ascertainability was likewise a central issue in Cotromano v. United Techs. Corp., 2018 U.S. Dist. Lexis 73775 (S.D. Fla. May 2, 2018), a case involving historical releases to air, water, and soil from an industrial plant in Palm County, Florida, in an area known as the “Acreage.” The plaintiffs defined the class as “[a]ll persons who on August 24, 2009 (or alternatively on February 1, 2010) owned residential property within the neighborhood in Palm Beach County, Florida known as The Acreage, as defined on the map.” Id. at *30. The putative class representatives were five married couples who owned residential properties in the Acreage, all of whom had a child...
