Class Certification in Environmental Toxic Tort Cases
Like prior cases, the most recently decided class certification opinions provide little consistent direction to litigants for framing future battles over class certification. The opinions do, however, reflect some of the difficulties inherent in class property damage claims.
Precisely Defined Class Critical For Plaintiff To Meet Rule 23 Requirements
Chief Judge John G. Heyburn II of the United States District Court for the Western District of Kentucky refused to certify a class of residents in areas surrounding a Barton Brands, Ltd. distillery seeking relief for “fallout and noxious odors.” The class proposed was defined as “owners or residents of single family residences within two miles of the distillery who owned or resided beginning on July 11, 2003.” Judge Heyburn found the class definition, an overriding concern in environmental mass tort cases, to be insufficient. The Memorandum Opinion was issued on November 20, 2007.
Although the factors listed in Rule 23(a) and (b) do not expressly mention class definition, the judge stated that a precisely defined class in which the named plaintiffs are members is an essential prerequisite for maintaining a class action. Slip op. at 4. Many courts treat class definition as a threshold issue because a flawed class definition will adversely affect the Rule 23(a) and (b) analysis. Slip op. at 7. At a minimum, plaintiffs must provide a logical reason for drawing the boundaries as they propose. Id. They need to provide the court with evidence establishing a connection between the defendant’s conduct and the proposed class area. Slip. op. at 6.
In this particular case, the plaintiffs offered no evidence that “the airborne contaminants spread in a uniform fashion in all directions from Defendant’s facility for a distance of up to two miles, or that the contaminants complained of by proposed class members bear a relationship to defendant.” Slip op. at 7-8. To meet this burden, plaintiffs could have provided test results for any substances that they claim fell on their properties or analysis of where the emissions of defendant’s plant spread once they leave Defendant’s smokestack, but they provided no such evidence. Slip op. at 9. Under the circumstances, Judge Heyburn was understandably troubled by “the lack of evidence that something occurred to distinguish the members of the [proposed] class from the general public.” Slip op. at 9.
Because of the problems with the proposed class definition, Judge Heyburn could not determine how many of the 5,864 proposed class members really were class members and therefore whether the numerosity requirement of Rule 23(a)(1) was satisfied. Slip op. at 11. Similarly, without a better class definition, Judge Heyburn could not determine how many of the proposed class members were similarly affected and whether the typicality requirement of Rule 23(a)(3) was satisfied. Slip op. at 12.
The “infirmities” in the class definition also affected the Rule 23(b) analysis. Absent evidence that the cause of the entire class’ damages could be determined on a class wide basis, the court concluded plaintiffs failed to satisfy the requirement in Rule 23(b) that common questions of law and fact predominate.
Three Judge Appellate Court Panel Issues Three Separate Opinions On Class Certification
Dow Chemical Company requested the Michigan Court of Appeals to review class certification in Henry, et al. v. Dow Chemical Co., No. 266433, a property damage case alleging dioxin releases. Class certification was affirmed in a divided decision issued on January 24, 2008. Each of the three appellate court judges issued a separate opinion.
The trial court certified a class consisting of property owners on February 1, 2002 within the one hundred year flood plain of the Tittabawasee River in Saginaw County, Michigan without an evidentiary hearing. Approximately 2000 people were said to be members of the class.
The per curiam opinion noted that the trial court’s decision should be evaluated against a “clearly erroneous” standard. Slip op. at 7. However, such an evaluation was difficult. There was no evidentiary hearing, and the parties presented conflicting documentation. The trial court made no factual findings and relied on case law to support its decision. Consequently, the appellate court could not conclude that the trial court had clearly erred. Slip. op. at 8.
The per curiam opinion continued in dicta to criticize Dow for taking what it called an “all or nothing” approach. As an alternative, the per curiam opinion suggested defendants in these cases should seek to limit class certification to particular issues or forms of relief or even to discovery. Slip op. at 12. Finally, the per curiam opinion suggests defendants should seek to limit class definition to owners of property with more than “zero to a little amount of dioxin level.” Slip op. at 13.
The concurring opinion notes that “with regard to damages, individual questions predominate over common questions and that the damages phase, should liability be established, must be dealt with on a case-by-case basis.” Slip concurring op. at 1. For that reason, the concurring judge would have directed the trial court to bifurcate the proceedings into a class action with respect to liability and individualized proceedings with respect to damages.
The dissenting judge would have reversed the trial court because individual issues of liability, causation and damages predominated. Individual issues included: variation in Dow’s activities over time; lack of uniformity in type, amount and timing of discharges; variation on flooding in terms of areas and cycle; changing environmental laws and waste discharge methodology. Slip dissenting op. at 2. In addition, the trial court would need to consider individual proof for each plaintiff of dioxin exposure levels, causation, injury-in-fact, damages and/or defenses. Slip dissenting op. at 5.
