By Perry Cooper
Behr America Inc., Chrysler Motors LLC, and Aramark Uniform & Career Apparel Inc. must face class claims by neighbors for contaminating their groundwater, the Sixth Circuit affirmed July 16.
The land owners may pursue seven issues on a class basis without proving that common questions predominate over individual issues for the case as a whole, Judge Jane Branstetter Stranch wrote for the U.S. Court of Appeals for the Sixth Circuit.
The decision widens a three-way split among the federal appeals courts over whether Federal Rule of Civil Procedure 23(c)(4) may be used to certify an issues class where predominance hasn’t been satisfied, defense attorney Scott Burnett Smith told Bloomberg Law.
Smith, partner at Bradley Arant Boult Cummings in Huntsville, Ala., said the case was wrongly decided. The plaintiffs’ claims are “quintessentially individualized” because the court will have to look into whether vapors from the alleged pollution entered each person’s home, he said.
“Treating Rule 23(c)(4) as an alternative way to certify improper ‘issue classes’ will inevitably lead to more blackmail settlements, especially within Sixth Circuit states like Michigan and Ohio, where many old industrial sites are located,” Smith said.
But a plaintiffs’ attorney said the overwhelming majority of federal courts have abandoned the Fifth Circuit’s strict rule requiring predominance for issue certification. Some courts in Florida follow the rule but even courts in the Fifth Circuit have rejected it, Douglas J. McNamara with Cohen Milstein Sellers & Toll PLLC in Washington told Bloomberg Law.
A professor of complex litigation called the Sixth Circuit’s approach “a pragmatic, workable view” that could be important for mass torts.
The decision “continues to move the courts in a direction that would facilitate the greater use of issue classes to deal with mass-tort cases that have, at least over the past two decades, tended to escape class certification,” Elizabeth Chamblee Burch of University of Georgia Law School in Athens told Bloomberg Law.
The case stems from years of contamination from automotive and dry cleaning facilities in the low-income McCook Field neighborhood of Dayton, Ohio. The operations released tricholoethene and tetrachloroethylene into the groundwater, which now pollute their properties, residents allege.
The trial court determined Ohio law regarding injury and causation prevented the suit from meeting the predominance requirement for class certification.
But it certified seven questions about the defendants’ role in the contamination and whether it caused the plaintiffs’ injuries for class adjudication.
“All seven of these issues are questions that need only be answered once because the answers apply in the same way to each property owner within the plumes,” the appeals court said. Individualized issues of proximate cause and damages can be resolved with separate procedures.
Judges Ronald Lee Gilman and John M. Rogers joined the opinion.
Brannon & Associates; National Legal Scholars Law Firm P.C.; and Janet, Jenner & Suggs LLC represented the property owners.
Honigman, Miller, Schwartz & Cohn LLP represented Behr. Thompson Coburn LLP represented Chrysler. Lowenstein Sandler LLP represented Aramark.
The case is Martin v. Behr Dayton Thermal Prods. LLC, 2018 BL 250691, 6th Cir., No. 17-3663, 7/16/18.
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