It is well-known in toxic tort and environmental legal circles that plaintiffs have inherent difficulties when seeking to certify a class of “injured” plaintiffs. Individualized issues of causation, exposure, and damages pervade just about all cases — and courts have long recognized this. Our blog posted recently on the medical monitoring PFOA class action in upstate New York that was certified in early July 2018 (i.e., Burdick v. Tonoga). That case is a clear outlier as it may be the first class action certified based on flawed reasoning concerning the level of a particular chemical in class members’ blood. But just a couple of weeks ago, we again saw a unique toxic tort class certification — this time at the Sixth Circuit Court Appeals, which affirmed an Ohio federal court’s certification of an “issue class” under FRCP 23(c)(4).
These recent decisions appear to be at odds with precedent and toxic tort litigation principles that have traditionally made it difficult to certify these types of actions. So, are we in the midst of a changing toxic tort class action landscape and should we expect more class certifications than we have seen in the past? The answer might be yes.
In most toxic tort cases that plaintiffs seek to certify under FRCP 23(b)(3), the primary issue is whether questions of law or fact that are common to class members predominate over questions affecting only individual members. A “predominance” requirement is not met if individual questions far outweigh questions common to the class. For background, the U.S. Supreme Court defines an individual question as one “where members of a proposed class will need to present evidence that varies from member to member, while a common question is one where the same evidence will suffice for each member to make a prima facie showing …” Tyson Foods v. Bouaphakeo (2016).
In the Sixth Circuit’s recent decision in Martin v. Behr Dayton Thermal Prods., the court found that critical issues like causation, injury, and damages, could be postponed to follow-on proceedings. This ruling gives ammunition to plaintiffs’ counsel who seek to certify classes by sidestepping the common proof needed to show defendant’s liability to any individual class member. In Martin, residents of a neighborhood in Dayton, Ohio, sued defendants based on allegations that they had contaminated groundwater beneath the plaintiffs’ properties with carcinogenic volatile organic compounds (commonly referred to as VOCs). The risk alleged was that the contamination could cause vapor intrusion into the plaintiffs’ homes. The federal district court properly rejected the plaintiffs’ attempt to certify under FRCP 23(b)(3), but certified a number of so-called “common issues” under FRCP 23(c)(4). Under this “broad” view of that section of the FRCP, the court explained that the class did not need to satisfy the “predominance” requirement found under FRCP 23(b)(3).
Like the class certification in the upstate New York case, the Sixth Circuit’s certification is significant. Aside from following other circuit courts, like the Second Circuit, in holding that the predominance requirement did not have to be met under Rule 23(c)(4), the case is one of the few toxic tort disputes that has been certified under the “issue class” section of Rule 23. But really significant here is that the court is saying that a toxic tort issue class can be certified even if fundamental questions of liability remain. Therein lies the trouble.
It’s no surprise then that four companies have filed a petition for rehearing en banc (i.e., the entire appeals court) in an effort to get the court to reverse its decision. The companies, understandably, criticized the decision for its failure to require “rigorous predominance and superiority analyses” and thus opening the “virtual class action floodgates, as it is easy to identify a single common issue in nearly any case.” The companies wrote that the Sixth Circuit’s decision “will encourage more filings of marginal class claims that…impose enormous litigation costs on defendants and the federal courts.”
The plaintiffs almost always prefer to seek class certification for the management and cost benefits that accompany it.
Obviously, the ability to get class-wide determinations based on just a few of the plaintiffs, the substantial amount of fees and damages that follow class certifications, as well as the ease in not having to litigate on a case-by-case basis, are all reasons why plaintiffs covet class actions. The foregoing recent class certifications will provide further precedential power in seeking class certs. It will be important for defendants that are faced with class-happy toxic tort plaintiffs to continue to develop facts that support individualized assessments (as opposed to common questions), and to emphasize the fundamental individual issues of causation, injury and damages. It’s also important for defense counsel to squeeze plaintiffs on their precise plans to resolve these key issues.
These recent decisions might be the beginning of a budding trend in toxic tort class certifications – will these decisions be outliers for long? We’ll continue to monitor these cases, their progeny, and others that implicate these important issues in toxic tort and environmental litigation.