Louisiana Court Affirms Denial of Certification of Class Alleging 40 Years of Exposure to Radioactive Dust
A recent decision from the Louisiana Court of Appeals demonstrates once again why personal injury claims simply cannot be tried as class actions. In Pollard v. Alpha Technical Services Inc., 2010 WL 323576 (Jan. 28, 2010), plaintiffs alleged that for more than forty years, industrial property in Harvey, Louisiana had been used to clean oilfield pipes of scale or crust that had built up in the interior of the tubing. This scale or crust was alleged to be barium sulfate -- later identified as radium sulfate -- and other radioactive materials. Plaintiffs alleged that "toxic dust" from the industrial property was deposited in their residential neighborhood, causing "various diseases and illnesses, including prenatal complications, various types of cancer, neurological disorders, impairment of kidney function," and impairment of liver function. Id. at *2.
The trial court conducted a class certification hearing and determined that the putative class failed to meet the class certification prerequisites. Plaintiffs appealed, and the Court of Appeals determined that, for the most part, the trial court had not abused its discretion in its analysis.
I say "for the most part" because the Court of Appeals did hold that the trial court abused its discretion in finding that the numerosity requirement was not satisfied. Plaintiffs estimated the potential class to be between 2,000 and 4,000 people. The trial court determined that 3,748 people already had indicated their intention to opt out. Id. at *5. The plaintiffs argued that there can be no opt outs until a certified class exists and absent class members can evaluate whether to participate. The Court of Appeals agreed, holding that "the trial court was manifestly erroneous in finding that the plaintiffs failed to satisfy the numerosity requirement." Id. at *6
But the Court of Appeal affirmed the trial court's remaining conclusions. It found no abuse of discretion in the trial court's conclusion that the commonality requirement had not been satisfied:
There is no controlling issue subject to proof on a class-wide basis. The differences in amounts and lengths of exposure, the personal history, habits and supposed illnesses of each particular claimant and the differences in operations and locations and customers of the five pipe-cleaning defendants, taken together and taken separately, mean that Plaintiffs cannot identify any common issue that can be resolved with respect to putative class members.
Id. at *7.
Similarly, the trial court was correct in concluding that the typicality requirement was not met:
The class representatives' claims are widely divergent from those of the putative class members. . . . Some class representatives claimed no medical condition whatsoever, implicitly conceding that none could have been caused. . . . Others claim widely varying problems, ranging from loss of smell to skin rashes to nosebleeds to hammer-toe to miscarriages to cancer.
Id.
And the trial court was correct in holding that the named class representatives could not adequately represent the absent class members because of the differences in their injuries. Id. at *8.
The trial court also was correct in holding that the proposed class definition failed to properly identify at the outset who was in the class. The trial court noted the inconsistencies and errors made by Plaintiffs' expert in modeling air dispersion and trying to establish times, spatial boundaries, and exposure levels for defining the class. The trial court found that the proposed class definition "could potentially include anyone who once drove through the area," and it could not be saved by defining the class as persons who suffered injury from exposure because that would require a merits-based determination to be made in mini-trials at the outset just to decide who was in and out of the class. Id. at *9. The Court of Appeals agreed, but observed that if the other problems with the class had not been so insurmountable, it might have been inclined to remand so that plaintiffs could more narrowly define the class. However, given the other fatal problems with the class, the court simply affirmed the trial court's conclusion on the class definition as well. Id. at *11.
