Consumer Class Actions and Mass Torts : Class Action Lawyer & Attorney : J. Russell Jackson : Skadden Law Firm : Complex Class Actions : Consumer Class Actions & Mass Torts Law Blog

As a kid, I was a huge fan of Carnac the Magnificent on Johnny Carson's Tonight Show.  In this first post of the new year, I thought I would channel my inner Carnac to make some predictions about what we can expect in the field of consumer class actions and mass torts in 2012.

1.  Wal-Mart v. Dukes will have tremendous impact on consumer class actions and mass torts.  Despite plaintiffs' attempts to limit the opinion solely to employment discrimination cases, the actual holdings in Dukes go to the fundamental core of class actions.  A unanimous Court said you can't deprive a defendant of its substantive right to challenge the elements of individual class members' claims just to make it easier to have a class.  Similarly, a unanimous Court strongly suggested -- even if the 8th Circuit didn't get it -- that Daubert rules matter at the class cert stage.  And a unanimous Court rejected the use of "trial by formula" rather than proof of actual damages.  These holdings are just as important -- if not moreso -- as the Court's articulation of the commonality standard, and you will begin to see the impact of these Dukes holdings in consumer class action cases this year.

2.  So many courts -- primarily in California -- have struggled to get around the clear preemption analysis in AT&T Mobility v. Concepcion that the U.S. Supreme Court is going to have to take up the issue of class arbitration waivers again.  It may not happen by the end of 2012, but too many courts have shot the bird to the Supremes since Concepcion.  Some argue that the decision does not apply to a particular cause of action under a state statute.  Others just find the whole arbitration provision containing a class action waiver void as against public policy.  But the simple fact is that it is nearly impossible to square these opinions with the very clear preemption analysis in Concepcion, and in the right case, the Court is going to have to issue certiorari to say that it really meant what it said.

3.  Courts may struggle for the right standard by which to judge personal jurisdiction, but plain ole stream-of-commerce theory is dead.  A majority of justices made that much plain in J. McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780 (2011).  They just couldn't agree on a new standard.  But we know there must be some purposeful availment in addition to mere awareness that the product might reach the forum.  I believe most courts that find jurisdiction will rely on web presence in the forum as the "plus" factor that shows purposeful availment of the forum's laws.

4.  Prescription medicine plaintiffs will continue to cast their plain old failure to warn claims as "design defect" claims to try to get around the clear bar of the learned intermediary doctrine.  Hopefully, most courts will continue to recognize that medicines are unavoidably unsafe products for which you cannot have a design defect claim.  Indeed, you can't even propose a feasible alternative design, because to do so is to change the product into something else!

5.  Global warming lawsuits seeking to foist on certain industries humanity's collective responsibility for climate change will continue, but the defenses of standing, remoteness, proximate cause and the political question doctrine will continue to be strong defenses.  Because the Supremes dealt only with federal law issues in American Electric Power Co. v. Connecticut, 131 S. Ct. 2527 (2011), courts will still have to work these issues out as matters of state law.  We can expect plaintiffs to win at least one of these cases at a trial court level.  But the sheer magnitude of how far they are attempting to stretch state law should cause appellate courts to be more circumspect.

6.  Product sellers from tobacco to telephones will continue to vigorously defend their commercial speech rights under the First Amendment.  Appellate courts will grapple with these sellers' rights to not be forced to convey government messages about their products where there are other, less intrusive means of achieving the government's purpose.

7.  Plaintiffs will attempt to circumvent the federal preemption for generic medicines recognized in Pliva, Inc. v. Mensing, 131 S. Ct. 2567 (2011), by trying to describe various claims -- such as express warranty claims -- as enforcing voluntarily adopted standards, rather than imposing state law requirements that conflict with federal law.  Plaintiffs will be hard-pressed to succeed on such dubious claims for at least two reasons.  First, the statements they point to will be consistent with what FDA has approved for the label, making plaintiffs' claims conflict with federal law.  And second, it will be very difficult to find statements that were actually material and became part of the basis of the bargain.

8.  The food and beverage industries are going to continue to be a primary target for consumer fraud claims.  Often these suits are fueled by health claims in advertising or on the label.  But increasingly such suits are being brought based on an ingredient in the product.  Although FDA has balked at issuing regulations that fully define when products may be labeled "natural," it has begun enforcement actions against products that use the term and contain synthetic preservatives or other synthetic ingredients.  Expect more of such consumer fraud class actions in 2012.

9.  Although class action suits over head injuries in professional football players may capture the imagination of sports writers and the public, the fact remains that class actions for personal injuries are almost never certified because the individualized issues regarding each class member's alleged injury, causation, and damages predominate over any common issues.  Don't expect 2012 to bring a big class action payday for professional footballers who allege concussion-related harm.

10.  The U.S. Supreme Court's majority and dissenting opinions in Kiobel v. Royal Dutch Petroleum, No. 10-1491, are going to be fascinating reading.  Kiobel, of course, raises the issue of whether legally fictitious entities -- corporations, rather than individuals or Nation-States -- can be sued under the Alien Tort Statute, which dates back to 1789.  The Second Circuit -- looking around the globe to foreign legal precedents -- held that corporations were not subject to ATS suits.  One may imagine that certain Justices who might concur in that result might bristle at relying on foreign legal precedents to get there.  While I'm willing to bet that the result in Kiobel is affirmed, I'll honestly admit that I can't predict what the opinion(s) will look like in reaching that result.

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A recent appellate decision from California is an excellent example of how common issues can fail to predominate even in property-based public nuisance claims.

In Department of Fish and Game v. Superior Court, No. CO66158 (Cal. Ct. App. -- Third Dist. Aug. 2, 2011), various real property and business owners brought a putative class action against the California Department of Fish and Game for its application of poison to Lake Davis to eradicate an invasive species of fish, the northern pike.  The Department allegedly widely publicized its plan to poison the pike, closed all roads providing access to the lake, and posted blinking signs about the lake's closing on Highway 70.  The lake was closed from September 2007 through January 2008, and it was not re-certified as a source of drinking water until May 2008.  By statute, area residents could present claims to a victim compensation claims board for damages.

Plaintiffs sought certification of three subclasses:  (1) all businesses in the area whose timely claims were rejected by the Department's claims board, (2) all real property owners whose timely claims for the decrease in real property values were rejected by the Department's claims board, and (3) all persons or entities whose timely claims for lost tax revenues or lost economic growth were rejected by the Department's claims board.

The Court of Appeal granted mandamus against the trial court's certification of the classes.

The court first analyzed whether common issues actually predominated.  In concluding that they did not, the court rejected the plaintiffs' proffer of expert testimony purporting to support the use of a classwide economic model or formula to calculate the class members' damages.  Instead, it found that every member of the class would be required to litigate a number of substantial questions about his or her right to recover, even after a judgment on the so-called "common" issues pertaining to all class members.

In determining that the issues of liability and damages could not be determined on a collective basis, the court determined that the different situations of the various putative class members caused individual issues to predominate:

[T]he impact of the 2007 poisoning . . . may be different depending on the particular characteristics and location of each individual parcel.  And, in light of the claims asserted byplaintiffs, these differences are more than just a matter of damages, but go to the fundamental issues of liability.

Slip op. at 17.

The trial court had applied the wrong standard for looking at the expert proof in the action, the Court of Appeal explained.  It had looked at the plaintiffs' experts' reports, concluded that they met the plaintiff's burden of establishing predominance, and then shifted the burden to the defendant's experts to disprove predominance.  But the burden at all times should rest with the plaintiff, the Court of Appeal instructed, and a fear of reaching the "merits" should not prevent the trial court from weighing the expert testimony to determine how the case will have to be tried.

In this instance, as the defendants' expert had explained, an across-the-board formula for damages would not properly take into account individual differences among class members:

'The reasons for this conclusion include the varied nature of the industries within the business community of the Lake Davis Area, the different economic pressures and influence felt by different industries, the differing levels of bookkeeping sophistication and record keeping methodologies used by different businesses and individuals, changes in local economic influences specific to individual businesses but unrelated to the treatment of Lake Davis including changes in contractual relationships, competition, and the labor force among others.  Finally, tourism obviously affects businesses differently and reduced tourism would not have a common impact on all businesses owned by proposed class members.' 

Slip op. at 40 (quoting defendant's expert).

The court of appeals then went through each cause of action, identifying the necessary elements of proof and whether those elements could be proven with common evidence or individual evidence.  It noted that "it is not enough simply to prove there was an average loss per parcel of property" because "[a]ll parcels are, more or less, different," and one "must look at the characteristics of each parcel, the reasonable expectations of the owner and the actual loss."  Slip op. at 49.  the court concluded that the issues of duty, causation, and the amount of damages must be determined on an individual basis.

Particularly in light of the US Supreme Court's recent treatment of commonality and expert testimony in Wal-Mart Inc. v. Dukes -- which is not cited in this opinion -- the California court's decision in Department of Fish and Game is a strong example of a state court focusing on how the case actually would be tried and scrutinizing expert testimony about statistical modeling.

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Last month I reported on a group of environmental activists who filed a bushel of global warming lawsuits around the nation asserting that state governments had a duty under a so-called "public trust doctrine" to hold the atmosphere in trust for the children, and thus should implement strict caps on greenhouse gas emissions.

Apparently one of those complaints was filed in the Montana Supreme Court asserting the original jurisdiction of that court.  The Montana Supreme Court ain't buying it.  Last week the court threw out the petition, observing that its original jurisdiction is reserved for very limited circumstances that involve purely legal questions of statutory and constitutional construction, and urgency and emergency factors make the normal appeal process inadequate.  See Barhaugh v. Montana, No. OP 11-0258, Slip op. (Mont. Jun. 15, 2011).  That was not the case here.  The complaint presented a lot of factual questions, such as whether the Legislature has been prevented from taking action to regulate greenhouse gas emissions and Montana's role in creating climate change.

As the court concluded:

We conclude this case does not involve purely legal questions.  This Court is ill-equipped to resolve the factual assertions presented by Petitioners.  We further conclude that Petitioners have not established urgency or emergency factors that would preclude litigation in a trial court followed by the normal appeal process.  Petitioners have failed to establish how emergent factors exist in Montana that require this Court's immediate attention in light of the lack of original jurisdiction in the other forty-nine states.

Slip op. at 2.

One down, scores more to go . . .

So far, this activist's group's nationwide "Atmospheric Trust Litigation" is a bigger flop than Mr. Popper's Penguins.

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I am traveling on the Left Coast for business this week.  And so it was with a certain amount of bemusement that I read this article that came across my Blackberry yesterday.  It explains that an environmental activist group, "Our Children's Trust," has decided to sue a number of states, seeking to force judges into ordering state governments to mandate the reduction of greenhouse gases, with the goal of preventing global warming. 

One of the activists is quoted as saying:

"We should be getting youths in front of the courts, not polar bears," Wood said, referring to a widely publicized attempt to have courts declare polar bears endangered as rising temperatures melt Arctic ice.

So how are these activists using America's youth to paint a compelling picture for judicial regulation of greenhouse gases?  Read this portion of a complaint apparently filed by the organization in New Mexico:

Climate change is adversely affecting [16-year-old] Akilah Sanders-Reed now.  Akilah is a skiing enthusiast and has been skiing regularly for the last 8 years.  Over that time, Akilah has seen a decrease in the snowpack on the slopes of Taos and Santa Fe.  The snowpack on those slopes has been thin and generally not good for skiing.  Akilah plans to continue skiing and to teach her younger brother to ski.  Therefore she is concerned that if the quality and amount of snowpack on the Taos and Santa Fe ski slopes continues to decline, she will have fewer opportunities to ski during the already abbreviated ski season in New Mexico.

Compl. para. 10.

Really?!!!  This is the tragedy that justifies judicial exercise of Executive Branch powers?  No skiing on Spring Break?  Bring back the cute, cuddly Polar Bears whose very existence is threatened, please!

The group's legal strategy seems as flawed as its storytelling.  It is suing the governors of various states on the so-called "public trust doctrine," which they describe as a common law theory.  But it's hardly a cause of action, like public nuisance.  Rather, it is simply a doctrine recognizing the sovereign's ownership interest in the land underlying navigable waters.  Ironically, the whole reason for the doctrine is to preserve the ability of the public to use such waters for commerce.  Our Children's Trust, of course, wants to invoke the doctrine to impede commerce and economic activity, state by state.

The fact that it can't cite in its New Mexico complaint a single New Mexico case applying the doctrine as they request gives you some idea of just what a long-shot their legal theory actually is.  They do nothing in their pleadings to anticipate the defenses that typically have proven fatal to climate change cases.  For example, they do nothing to establish the children's standing to assert a claim.  In public nuisance -- which is an actual cause of action designed to protect interference with the public's right of enjoyment of property -- the right to sue is reserved to the sovereign unless an individual can prove that he or she suffers a special injury that is different in type and degree from that suffered by the general public.  Notably, a bad ski day (if there really is such a thing) wouldn't cut it.

Similarly, defendants have argued that federal statutes and regulations preempt individual common law claims aimed at regulating greenhouse gas emissions.  Notably, even the cases that Our Children's Trust cite in its complaint expressly recognize the preeminence of federal authority.  For example, in Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892), the court observed that the state's rights and obligations under the public trust doctrine were "subject always to the paramount right of Congress to control [the] navigation [of the state's navigable waters] so far as may be necessary for the regulation of commerce with foreign nations and among the States."  Id. at 435.  Likewise, in Montana v. United States, 450 U.S. 544 (1981) -- also cited by plaintiffs -- the court cautioned that:

The State's power over the beds of navigable waters remains subject to only one limitation:  the paramount power of the United States to ensure that such waters remain free to interstate and foreign commerce. 

Id. at 551.

Moreover, the plaintiffs make no allowance in their pleading for defenses such as the political question doctrine, primary jurisdiction, or causation.  Notably, courts and advocates that have considered the climate change question have acknowledged that the issue of greenhouse gas emissions is a global one; emissions from one part of the globe may travel and have effects in other parts of the globe.  Thus, localized emissions caps -- like plaintiffs advocate -- have no real hope of abating the alleged nuisance locally, and local emissions cannot be deemed the substantial cause of alleged local climate change.

Ultimately, all that Our Children's Trust has achieved is making cash-strapped states that have no ability to solve the problem defendants in frivolous litigation that will cost lots of time and money to defend.  And they did so without finding a more compelling mascot than fluffy polar bears.

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Lots of ink has been spilled of late about litigants trying to use the courts to achieve certain results regarding global warming.  And much has been written about nuclear power in the wake of the tragedy in Japan.

So you can imagine that my eyebrows arched as I thumbed through my "to read" pile and discovered a decision from the Connecticut Supreme Court addressing a citizen's challenge to a nuclear plant's plan to increase its power generation, thereby increasing its discharge of radioactive waste and the discharge of warm water into Long Island Sound.  The court's decision is a good reminder that plaintiffs seeking to regulate through litigation often lack the sort of personal and direct injury that give rise to standing to sue.

In Burton v. Dominion Nuclear Connecticut, Inc., No. SC 18603 (Conn. Apr. 19, 2011), the plaintiff sued to prevent the operator of the Millstone Nuclear Power Station in Waterford from implementing its plan to increase its pwer generating capacity in its Unit 3 reactor by 7%.  The Plaintiff alleged that this would both increase the amount of nuclear waste released into the atmosphere, and would generate a warm-water plume in Long Island Sound that would injure the acquatic wildlife. 

(The operator had applied for and received all appropriate permits, with the Nuclear Regulatory Commission issuing a safety evaluation report finding that even with the increased radioactivity, the discharge would remain within federal guidelines and the thermal plume would pose no threat to endangered or threatened species of marine life.  Slip op. at 2.)

The plaintiff sued for a TRO and a permanent injunction in state court, asserting causes of action under the Connecticut Environmental Protection Act, common law public nuisance, "classical aggrievement," and violation of Connecticut's Unfair Trade Practices Act.

The trial court dismissed the claim, and the Connecticut Supreme Court affirmed.

The Connecticut Supreme Court first analyzed whether the plaintiff's claims were preempted by the federal Atomic Energy Act, concluding that one of them was.  As the court explained it, the AEA reserves to the federal government the regulation of the radiological safety aspects of nuclear plants, but reserves to the states their traditional responsibility for regulating utilities.  Thus, the court concluded, the trial court "had no jurisdiction to consider the plaintiff's claim regarding the increase in radioactive waste because the federal government has exclusive regulatory authority over radiation hazards and safety as well as radiological discharges from nuclear power plants."  Slip op. at 4. 

As for the plaintiff's claim about the thermal plume, however, that fell within the state's traditional powers and was not preempted.  Accordingly, the court went on to consider the plaintiff's standing to raise these claims.  The court quickly dispatched the CEPA claim, holding that because she merely challenged the result of the agency's decisionmaking, but did not allege that the discharges would result in pollution that exceeded the amount permitted under the regulatory scheme, she lacked standing to assert a CEPA claim.  The court described this problem as lacking the "substantive heft" required under the CEPA to establish citizen standing.  

Plaintiff relied on a prior case in which she had successfully sued to protect marine life in Long Island Sound.  But the Supreme Court distinguished that case, noting that there she had pled procedural violations by the agency in its decisionmaking process.  Because there were no such allegations in this case, however, and no allegations that the discharge levels would exceed established standards, the court found plaintiff's authority inapposite. Slip op. at 7.

The court then analyzed the public nuisance claim.  It instructed that private individuals have no standing to bring public nuisance claims generally; that power typically is reserved to the state.  The exception is where the individual has sustained injury of a different type and degree from the public at large.  Here, the plaintiff alleged no special injury and, as such, lacked standing to bring a public nuisance claim.  Slip op. at 8.

In Connecticut, the doctrine of "classical aggrievement" operates almost exactly like the special injury requirement of the public nuisance cause of action.  The plaintiff must allege a distinct legal interest in the subject matter of the lawsuit that is different from the general public's, and must show that the agency's decision has specifically injured that interest.  Slip op. at 9.  Because plaintiff could not make that showing, she had no standing to bring such a claim.

Finally, the court considered the plaintiff's Hail Mary theory:  violation of CUPTA.  In reasoning that should resonate beyond the facts of this case, the Supreme Court reiterated that where plaintiffs plead unfair trade practices under CUTPA, they must plead a direct injury caused by the unfair trade practice.  See slip op. at 9 (citing cases holding that the doctrines of remoteness and proximate causation apply to CUTPA claims).  The court concluded:

We concluded that the plaintiff has failed to establish standing to bring her CUTPA claim because she does not allege harm from the increase in the temperature of the thermal plume that is not remote, indirect, or derivative.  Her principal allegation is that the elevated temperature of the water will affect wildlife, fish and other aquatic organisms, which, in turn, will indirectly pose a danger to her health and affect ther ability to enjoy her recreational pursuits of swimming, boating and consuming seafood from Long Island Sound and estuary.  She does not allege, however, precisely how her health will be endangered from the elevated temperature of the thermal plume or how her recreational pursuits will be affected; nor did she present evidence to that effect at the hearing on the motion to dismiss.  Thus, without more specificity, it is impossible to conclude that the harm the plaintiff has alleged is direct.  We therefore conclude that the trial court properly dismissed her claim of unreasonable pollution under CUTPA for lack of standing.

Slip op. at 9 (citation omitted).

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The Fourth Circuit recently issued an opinion reflecting the conservative approach that is required when federal courts sitting in diversity are called upon to predict how the state supreme court would rule on controlling issues of state tort law.

In Rhodes v. E.I.DuPont de Nemours & Co., 2011 WL 1335799 (4th Cir. Apr. 8, 2011), customers of the Parkersburg, West Virginia City Water Department sued the defendant in a putative class action for contaminating the public water supply with perfluorooctanoic acid (PFOA).  Thankfully, none of the class representatives had become ill, but their blood did reflect higher-than-normal levels of PFOA, which they alleged had been associated with an increased risk of liver disease, cholesterol abnormalities, and certain cancers.

The plaintiffs originally asserted a variety of causes of action:  negligence, gross negligence, battery, trespass, private nuisance, and the separate tort of medical monitoring.  The district court held that the medical monitoring claim was not susceptible to classwide proof.  It also denied class certification under the traditional common law tort claims.  Plaintiffs then amended their complaint to add a public nuisance claim. 

Subsequently, the district court granted summary judgment to the defendant on all of the traditional tort claims for lack of injury.  But it denied summary judgment on the individual claims for the "new" tort of medical monitoring.  So that they could appeal immediately, without having to wait for their remaining individual claims to be litigated, the plaintiffs voluntarily dismissed their individual medical monitoring claims.

On appeal, the Fourth Circuit dealt first with the class claims for negligence and gross negligence.   It concluded that they must be dismissed because they require a plaintiff to produce evidence of a health detriment that actually has occurred or "is reasonably certain to occur due to a present harm."  2011 WL 1335799 at *3 (citation omitted).

With respect to the claim for battery, the Fourth Circuit held that the mere presence of PFOA in the plaintiffs' blood was not a battery because it did not cause any "physical impairment."  Id.  Plaintiffs argued that the West Virginia Supreme Court would waive any impairment requirement in such a situation, but the Fourth Circuit refused to engage in such speculation:

The West Virginia Supreme Court of Appeals has not adopted this view and, in fact, expressly has required that a plaintiff alleging battery demonstrate "actual physical impairment."  Also, the West Virginia Supreme Court of Appeals has not embraced the alternative definition of battery embraced by the plaintiffs, battery based on "offensive contact," as provided in Section 18 of the Restatement.

In the absence of such action by the highest state court in West Virginia, our role in the exercise of our diversity jurisdiction is limited.  A federal court acting under its diversity jurisdiction should respond conservatively when asked to discern governing principles of state law.  Therefore, in a diversity case, a federal court should not interpret state law in a manner that may appear desirable to the federal court, but has not been approved by the state whose law is at issue.

Id. at *4 (citations omitted; emphasis added).

Analyzing the trespass claim, the Fourth Circuit concluded that the plaintiffs had failed to produce evidence showing the PFOA in the water had damaged or interfered with the plaintiffs' possession, use or enjoyment of the property.

The court also rejected the private nuisance claim, understanding that the legal interest asserted -- public access to clean drinking water -- was a pubic one, not a private one, and thus incapable of supporting a private nuisance claim.  Id. at *4-*5.

As for the public nuisance claim, the court held that plaintiffs lacked standing because they did not have a "special" injury that was different in both character and degree from the general public.  (Traditionally, the right to assert public nuisance claims was left to the sovereign.  Over time, it developed that individuals also could assert such claims on the public's behalf, but only where they had a "special" injury that could ensure that they would vigorously prosecute the claim.)  Plaintiffs argued that West Virginia would follow the Restatement, which would create an exception to the "special injury" requirement for class action plaintiffs.  The Fourth Circuit held that it was enough for them that the West Virginia Supreme Court had not adopted this approach:  "We decline to recognize such an exception in the first instance because, as we have stated, a federal court in the exercise of its diversity jurisdiction should act conservatively when asked to predict how a state court would proceed on a novel issue of state law."  2011 WL 1335799 at *6 (citation omitted).

The Fourth Circuit next considered the plaintiffs' arguments that they could obtain medical monitoring as an element of relief on their traditional tort claims even if they did not meet the "injury" requirement.  The Fourth Circuit rejected this approach outright, pointing to the West Virginia Supreme Court's decision that created a separate tort of medical monitoring.  In that decision, the court had held that the "injury" necessary to support an independent medical monitoring claim was "a 'significantly increased risk of contracting a particular disease relative to what would be the case in the absence of exposure.'"  Id. at *7 (citation omitted).  It did not re-define "injury" as something less for the traditional torts and, in fact, if it had done so, it would not have needed to create a separate, independent tort of "medical monitoring" in the first place.

The Fourth Circuit then dealt with the final issue on appeal:  whether the plaintiffs' voluntary dismissal of their individual medical monitoring claims precluded them from challenging the district court's decision that the independent "medical monitoring" claim could not be certified as a class action.  After surveying the variety of approaches courts have taken to the question of voluntary dismissals designed to elude the problem of  interlocutory appeals, the court followed basic standing principles to hold that voluntary dismissal of a cause of action barred appeal of the decision not to certify a class on that cause of action:

Applying the principles set forth by the Supreme Court, we conclude that when a  putative class plaintiff voluntarily dimsisses the individual claims underlying a request for class certification, as happened in this case, there is no longer a "self-interested party advocating" for class treatment in the manner necessary to satisfy Article III standing requirements.  Thus, we hold that we lack jurisdiction to decide the issue whether the district court abused its discretion in denying the plaintiff's request for class certification of their medical monitoring claims.

Id. at *9 (citation omitted).

The Fourth Circuit's decision in Rhodes is a strong example of a federal court showing deference to state sovereignty by refusing to invent new tort rules and causes of action that have not been recognized by the state's high court, and by declining to allow people who have surrendered their claims for strategic reasons to continue to assert the aggregated claims of a large number of the state's citizens.

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Yesterday's featured case involved the question of duty.  Sticking with that theme, I thought I'd bring to your attention another duty case, this time in the tort context.

One of the first lessons I learned in Torts class is the notion that foreseeability does not define the scope of the legal duty in tort.  For example, if I negligently caused an auto accident such that the highway patrol had to shut down the Long Island Expressway, it is certainly foreseeable that people in the cars behind me might miss a business meeting, fail to deliver a pizza on time, or miss their own wedding.  But tort law does not impose a duty on me to avoid those consequences for other people, even though they may result in financial loss.  Rather, tort law imposes a duty on me only to avoid negligently causing injury to a person or property.  Without personal injury or property damage, the fact that one of the drivers behind me was inconvenienced (or even financially impacted) simply does not give rise to a legal claim. 

In Sanders v. Norfolk So. Ry. Co., 2010 WL 4386881 (4th Cir. Nov. 5, 2010) (unpublished per curiam affirmance), the Fourth Circuit was squarely faced with the duty question.  (I should note that some of my colleagues were involved in this case.)  A train had derailed in a small town, causing a chlorine leak.  People within a one-mile radius were under a mandatory temporary evacuation order, and people within a two mile radius were under a temporary "shelter in place" order.  (The railroad quickly agreed to a class action settlement for those who were directly impacted.) 

But people who lived within a two-to-five mile radius of the crash site wanted a payday, too, so they filed a putative class action suit.  The defendant moved to dismiss, the trial court granted the motion, and the Fourth Circuit agreed.  The Fourth Circuit explained that:

South Carolina recognizes reasonable limitations on tort liability in negligence actions where the plaintiffs have suffered no personal injury and have no direct relationship with the tortfeasor. . . .

. . . While Appellants may have properly pled that their injuries were foreseeable, foreseeability alone may not give rise to a duty under South Carolina law. . . . 

Here, the only injuries alleged by Appellants are those directly related to their non-mandatory evacuation or temporary retreat from their homes.  While these harms may have been foreseeable by [the defendant], we agree with the district court that they are too remote to warrant a finding of legal duty.

Id. at *2 (citations omitted).

Similarly, the court affirmed the dismissal of the nuisance claims.  Dismissal of the public nuisance claim was proper because the plaintiffs had not alleged that their real or personal property was damaged by the accidental chlorine gas release.  And dismissal of the private nuisance claim was proper because the "release was a singular event and did not continuously keep them out of their homes."  Id. at *3.

Sanders is a reminder that foreseeability is not the equivalent of duty in tort law, and that the duty concept serves to cut off liability for harms that are simply too remote or attenuated from the challenged conduct.

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Senior US District Judge W. Harold Albritton recently issued an opinion in a nuisance case that once again reminds us of the importance of having a class that is capable of objective, ascertainable definition at the outset of the litigation.   See Benefield v. International Paper Co., Civ. A. No. 2:09cv232-WHA, Slip op. (M.D. Ala. Oct. 20, 2010). 

In Benefield, the plaintiffs alleged that the defendant's paper mill had discharged hazardous substances over the course of many years, resulting in property damage to properties within a two-mile radius of the facility.  The class was defined as all people who, as of the date of the filing of the Complaint, owned real property located within two miles of the facility which was contaminated by what was released from the defendant's facility and who suffered as a result a diminution in property value of $100 or more.  Slip op. at 2.  There were a number of exclusions, including people who suffered personal injuries and people who were litigants or class members in other similar cases.

The court denied class certification, beginning its analysis with the problems with the class definition.  Establishing that each property was contaminated would require individualized proof, the court concluded, as would determining whether the property value was diminished by more than $100.  Slip op. at 7-8.  Although the court ultimately concluded -- unlike many other courts -- that the admissibility of expert testimony was not ripe for adjudication at the class certification stage, the court focused on the weaknesses in the plaintiffs' experts' blanket conclusions and ill-conceived methodologies in rejecting the class definition:

In short, while the Plaintiffs have argued, correctly, that this court should not engage in any merits determination in determining whether the class should be certified, the Plaintiffs have asked the court to find facts, based on disputed evidence, to determine who is in the class.  The court concludes, therefore, that it is not administratively feasible for the court to determine whether a particular individual meets the class definition. 

Slip op. at 8 (citation omitted).  The court also noted that the exclusions carved out of the class definition also presented their own problems:  "That [personal injury] exclusion will require a determination of which people within the geographic area who own residential property also have personal injuries caused by releases from the Facility, which itself poses causation issues, and therefore makes the class definition improper."  Id. at 9.

The court went on to consider the standing of one plaintiff, who could not establish by deed or will that he actually had an ownership interest in his property.  The court concluded that he lacked standing to assert claims on behalf of property owners.  (He had asserted some damage to personal property as well, but the court indicated that this presented typicality/adequacy of representation problems, although it might cure his personal standing problem.)

The other plaintiff presented multiple typicality and adequacy problems.  First, he jointly owned his property with his wife, and his wife was the plaintiff in a similar action that had been carved out of the class definition.  Moreover, after filing the class certification motion, plaintiff filed an amended complaint that asserted claims for public nuisance, private nuisance, and fraud.  Yet he did not seek class certification for those claims.  This led the court to conclude that his adequacy was "undermined by the pendency of those claims."  Slip op. at 15 ("because Johnson's claims are factually the same as only some of the putative class, he is pursuing some damages not sought by the entire class, and he apparently seeks to recover on theories not asserted on behalf of the entire class, his claims are not typical, and he is not an adequate class representative").

In analyzing the predominance requirement of Rule 23(b)(3), the court observed that the claims for public nuisance, private nuisance, abnormally dangerous activity, and fraud likely would require "highly individualized determinations."  Slip op. at 19.  Moreover, there were significant individualized damages issues that -- when combined with the individualized causation issues -- counseled against certification.  Id. at 21. 

The court also found the superiority requirement lacking, particularly in light of the other actions already pending.

Benefield is a good reminder that how one defines the class -- and who is excluded from the class -- matters, and can prove fatal to a putative class action.

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Recently another federal court refused to certify a medical monitoring class because it presented too many individual issues.  In Gates v. Rohm and Haas Co., 2010 WL 774327 (E.D. Pa. Mar. 5, 2010), the residents of McCollum Lake Village in Illinois sued the defendant, alleging that its specialty chemicals manufacturing facility contaminated their Village with vinyl chloride, causing a significantly increased risk of developing brain cancer and a drop in property values.  They asserted the following claims:  medical monitoring, public and private nuisance, negligent and intentional trespass, strict liability, negligence, negligence per se, CERCLA, and conspiracy.  They sought class certification under Rules 23(b)(2) and 23(b)(3).  After a three-day hearing, the court denied certification, holding that individual issues predominated.

Although the court found that the numerosity, typicality, and commonality requirements of Rule 23(a) were met, it expressed concern about the adequacy of representation requirement because the class, as defined, ran the risk of precluding people who later developed physical injuries from bringing claims for such injuries under the general rule against claim-splitting.  The court ultimately assumed, without deciding, that the adequacy of representation requirement was met.

In analyzing the medical monitoring claim under Rule 23(b)(3), the court took issue with the failure of plaintiffs' experts to establish a minimum exposure level that applied to the entire class and represented a significant increase in the risk of developing disease.  Plaintiffs experts had earlier admitted that such figures were necessary to establish the need for medical monitoring, but all that they ultimately could deliver were average exposure levels.  They acknowledged that the putative class members' actual exposure levels varied significantly based on how long they spent outside, whether they also worked in the village, etc.  Relying on Rowe v. E.I. DuPont de Nemours & Co., 2008 U.S. Dist. LEXIS 103528 (D.N.J. Dec. 23, 2008), the court rejected the use of exposure levels from risk assessments and concluded that individualized issues predominated and precluded certification of the medical monitoring class.

The court also held that the medical monitoring requested -- annual MRIs in asymptomatic individuals -- were problematic from a class certification perspective; the risks for various individuals (children, people with kidney disease, claustrophobic patients) made it unlikely that "'informed physicians, unaffected by litigation considerations, would recommend routine monitoring' with MRIs in asymptomatic patients such as the proposed class members."  Gates, 2010 WL 774327 at *19 (citation omitted).

The court also rejected class certification under Rule 23(b)(2), holding that for the same reasons the class failed the predominance requirements, it also failed the "cohesiveness" requirement inherent in Rule 23(b)(2).

Finally, the court also rejected the property damage class proposed for certification under Rule 23(b)(3).  For that class, the court concluded that plaintiffs could not prove that each property was exposed to vinyl chloride, and certainly not in the same amounts.  Moreover, the fact of damages and the extent of damages were considerations weighing against a finding of predominance and superiority.

Gates is an example of a court that took its responsibilities seriously, holding three days of class certification hearings and receiving copious amounts of expert testimony on the key issues.  It did not lightly come to the conclusion that the prerequisites of Rule 23 were not met. 

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It's not often that you find a Supreme Court Justice commenting on mass tort class actions.  But on Tuesday, retired Justice David H. Souter sat by designation on the First Circuit and issued an opinion in Gintis v. Bouchard Transp. Co., 2010 WL 617395 (1st Cir. Feb. 23, 2010).  Of course, if you read this blog, you remember Gintis:  it was part of the competing class actions that arose out of an oil spill in Buzzards Bay that I posted about previously.  The District Court ultimately denied class certification of a public nuisance class because the individualized issues of "special injury" and damages predominated over the common issues.

On appeal, Justice Souter reversed the decision below because the trial court did not engage in a rigorous analysis of whether the class certification requirements were met.  As Justice Souter characterized the opinion below, it "listed the elements to be proven by evidence that ultimately must speak to individual claims, and cited one precedent example among cases going different ways."  Id. at *2.

Although Justice Souter did not dictate what the outcome should be on remand, it was clear that he believed a class should be certififed.  Noting the defendant's objection to the use of its records and its challenge to the plaintiffs' expert's appraisal methodology, he posited that the defendant's "arguments in this appeal appear to show that substantial and serious common issues would arise over and over in potential individual cases."  Id. at *3.  He opined that with likely recoveries being between $12,000 and $39,000, and the defense challenging injury, causation, and compensation, this may be one of those cases "that may well go to the very reason for Rule 23(b)(3), mentioned before (i.e., to make room for claims that plaintiffs could never afford to press one by one)."  Id.

You may remember that the District Court's decision had raised an interesting question:  what is the preclusive effect of the state court's refusal to certify a broad class of property owners all over Buzzard's Bay?  (Instead, it certified a much smaller class of property owners from one small town.)  Justice Souter relegated that question to a footnote:  "that judgment has no prelusive effect against these plaintiffs, who were neither parties to the state action nor in privity with those who were."  Id. at n.2.

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Dust off your old property texts and grab your briefcases, ladies and gentlemen!  We're off to the races in private party climate change class action litigation!

Yesterday the U.S. Court of Appeals for the Fifth Circuit became the second federal appeals court in less than a month to reverse a trial court decision that had thrown out a climate change lawsuit for presenting a nonjusticiable political question.  See Comer v. Murphy Oil USA, 2009 WL 3321493 (5th Cir. Oct. 16, 2009). 

(The Second Circuit previously had held that in the absence of comprehensive federal legislation regulating greenhouse gas emissions, states, municipalities and certain private organizations had standing to bring viable federal common law nuisance claims to impose caps on certain companies' greenhouse gas emissions.  See Connecticut v. American Elec. Power Co., 2009 WL 2996729 (2d Cir. Sept. 21, 2009.  A good description of that opinion can be found here.)

Comer is particularly important because it is a private class action for compensatory and punitive damages, not a suit brought by states or municipalities for injunctive relief.  And that means contingency fees.  And thus the promise of copycat lawsuits. 

The plaintiffs in Comer were property owners on Mississippi's Gulf Coast who had suffered property damage in Hurricane Katrina.  Their causation theory sounds a little like the litigator's equivalent to the game "Six Degrees of Kevin Bacon."  Plaintiffs sued a melange of energy, fossil fuel, and chemical companies, alleging that their greenhouse gas ("GHG") emissions contributed to an increase in air and water temperatures, causing a rise in sea levels and adding to the ferocity of Hurricane Katrina, which blew water and debris onto plaintiffs' property, thereby causing property damage.  Plaintiffs asserted a variety of theories under Mississippi common law, including public nuisance, private nuisance, trespass, negligence, unjust enrichment, fraudulent misrepresentation, and civil conspiracy.

The Fifth Circuit held that plaintiffs lacked standing to bring their claims for unjust enrichment, fraudulent misrepresentation, and civil conspiracy, but that they had standing to assert their claims for public and private nuisance, trespass and negligence.  The court further held that this latter group of claims did not present a non-justiciable political question.

The panel was comprised of two Clinton appointees and one Reagan appointee.  The Hon. James L. Dennis wrote the opinion, and Judges Carl E. Stewart and W. Eugene Davis joined in it.  However, Judge Davis (a Reagan appointee) noted separately that the defendants below also had moved to dismiss the claims for lack of proximate cause, and that he would have affirmed the dismissal on that ground.  Nevertheless, because the panel chose not to address grounds that the district court had not relied upon, Judge Davis joined in the panel opinion.  Nevertheless, Judge Davis's statement should give some hope to defendants who worried that the Fifth Circuit's determination that there was enough of a causal connection for standing might preclude successful motion practice in the district court on the issue of proximate cause.  Plaintiffs still have a very tough case to make on causation.

On the issue of the political question doctrine, the Fifth Circuit applied the standard test articulated in Baker v. Carr, concluding that the case did not involve issues:  (i) constitutionally committed to another branch of government, or (ii) that lack judicially discoverable standards for resolution, or (iii) that are impossible to decide without an initial policy decision being made that is not of a judicial character, or (iv) that require adherence to a previously-made political decision.  The Fifth Circuit said that the district court erred by relying on other district court decisions -- including the lower court decision in Connecticut v. American Electric Power -- that had interpreted the Supreme Court's decision in Chevron as requiring federal courts in air pollution cases to balance social and economic interests like a legislative body.  The Fifth Circuit reasoned that such an approach would make all air pollution cases non-justiciable political questions and would be contrary to how transboundary water disputes are determined.  It also would be contrary to the "long line of cases" holding that the Clean Air Act and Clean Water Act do not preempt state common law claims, the court said.

The Comer Court locked arms with the Second Circuit -- at least on the political question doctrine -- explaining:

Although we arrived at our own decision independently, the Second Circuit's reasoning [in Connecticut v. American Power] is fully consistent with ours, particularly in its careful analysis of whether the case requires the court to address any specific issue that is constitutionally committed to another branch of government.

On the issue of standing, the court divided plaintiffs' causes of action into 2 groups:  those that relied on a causal link between GHG emissions and Hurricane Katrina, and those that did not.  As to the first group, which included public and private nuisance, trespass and negligence, the only real standing element in dispute was whether plaintiffs' alleged injury was fairly traceable to the defendants' actions.  The court was careful to explain that the fact that the complaint may not adequately plead a cause of action under state law does not destroy jurisdiction, and that the Article III "fairly traceable" standard is not the equivalent of proximate cause under state law.  Clearly, the court was leaving open the very real possibility that, on remand, the district court would hold that plaintiffs' complaint fails to state a claim under state law. 

In reaching the decision that the "fairly traceable" standard had been met by plaintiffs' convoluted causation theory, the Fifth Circuit clearly felt constrained by the Supreme Court's decision in Massachusetts v. EPA, which seemed to accept "as plausible the link between greenhouse gas emissions and global warming" and the fact that "rising ocean temperatures may contribute to the ferocity of hurricanes."  Comer Slip op.  As the Comer court concluded, "the [Supreme] Court accepted a causal chain virtually identical in part to that alleged by plaintiffs" when it held in Massachusetts v. EPA that to meet the "fairly traceable" standard, the states merely had to show a contributing cause, not the primary cause, of their injuries.  Id.

As for standing in the Comer plaintiffs' second group of causes of action -- fraudulent concealment, unjust enrichment, and civil conspiracy -- the court employed the doctrine of "prudential standing" to conclude that plaintiffs lacked standing to bring these claims.  Plaintiffs' unjust enrichment claim was premised on the petrochemical companies artificially inflating the price of petrochemicals, impacting the public at large.  The fraudulent concealment theory was premised on the defendants knowing about global warming, but issuing misinformation to decrease public awareness of the phenomenon.  And the civil conspiracy claim was premised on the defendants misleading the government into not regulating GHG emissions.  Each of these theories had at its core a "generalized grievance more properly dealt with by representative branches [of government] and common to all consumers of petrochemicals and the American public," the Comer court observed.  In this way, these causes of action were very different from private claims for property damage.  As such, the court concluded that, for the second set of claims, plaintiffs lack standing under the doctrine of prudential standing, which:

encompasses "the general prohibition on a litigant raising another person's legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in representative branches, and the requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked."

Comer Slip op. (citation omitted).

It seems clear that the Comer decision will provide some encouragement to plaintiffs' lawyers who dream of scoring a lucrative victory in climate change litigation.  But when one examines the opinion closely, it is clear that such cases still are plagued with significant causation problems that will present early and frequent opportunities for defendants to move for dismissal or summary judgment.  Neither Comer nor the Second Circuit's decision in Connecticut v. American Electric Power solve these fundamental causation problems for plaintiffs.

Yesterday I also received the district court decision in Native Village of Kivalina v. ExxonMobil Corporation, Case No. C 08-1138 SBA, Slip op. (N.D. Cal. Sept. 30, 2009), in which the court held that the village's federal common law claim for nuisance failed for lack of Article III standing and was barred under the political question doctrine.  Point of Law describes the decision here.  If I have any thoughts to add after comparing Comer and Kivalina, I'll post them later this weekend.

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The judicial branch is one of three branches of government, and although it has considerable powers, it has inherent limitations, too.  The doctrine of standing -- requiring an injury and causation as a prerequisite to judicial intervention -- is grounded on the practicalities of institutional competence and a recognition that courts do not have the tools to be effective legislators and regulators.

In Rhodes v. E.I. DuPont de Nemours & Co., 2009 WL 3080188 (S.D. W. Va. Sept. 28, 2009), the court was faced with summary judgment motions that raised those fundamental questions of institutional competence.  In Rhodes, the Defendant was alleged to have periodically released perfluroctanoic acid ("PFOA") from its plant in Wood County, West Virginia.  Plaintiffs claimed that the PFOA contaminated the water supply in the Parkersburg Water District, and they brought a class action asserting negligence, gross negligence, private nuisance, public nuisance, trespass, battery, and medical monitoring.  Plaintiffs alleged that they had no present physical injury; rather, they claimed to have an increased risk of disease.

Before conducting its analysis, the court observed that "[i]ssues of institutional competence . . . caution against judicial involvement in regulatory affairs" because "[c]ourts are designed to remediate, not regulate."  Id. at *1.

The court first analyzed whether the plaintiffs had Article III standing to bring their claims where the only injuries alleged were increased risk of disease.  After summarizing the case law, the court noted that "[e]ven courts that express doubt as to whether injuries premised on increased risk constitute an injury-in-fact acknowledge that such claims are cognizable in the context of environmental harms and toxic exposures."  Id. at *4.  The court thus concluded that plaintiffs had standing to bring their claims.

With respect to the merits of the summary judgment motions, the court first looked at negligence.  The court determined that plaintiffs had provided sufficient evidence to create a material fact question on causation in their expert reports.  (The court refused to rule on the motion to strike the reports because of the timing of their filing.)  But it held that the plaintiffs had not alleged injury sufficient to support their negligence claims.  Unlike for standing, negligence requires proof of either a present injury or "'reasonably certain' future injury."  Id. at *11.  Because plaintiffs could not prove that their potential future injuries were "reasonably certain" to occur, their negligence claim for damages failed.

Next, the court analyzed nuisance law.  It held that plaintiffs' private nuisance claim failed because the complaint did not allege an interference with the private use and enjoyment of land, but rather alleged interference with the public water supply.  (The contamination did not reach the groundwater beneath the plaintiffs' property.)  Id. at *11-*12. 

And it held that the public nuisance claim failed because the plaintiffs did not meet the special standing requirement applicable to such claims.  Ordinarily, the government is the one to file and prosecute a public nuisance claim.  West Virginia -- and most other states -- requires that private plaintiffs who seek to assert a public nuisance claim must establish that they have suffered a "special injury" different in type and degree from the segment of the public impacted by the public nuisance.  The court observed that the plaintiffs here only suffered an increased risk of disease, which is the same type of injury allegedly suffered by the other consumers of the municipal water supply.  Thus, they failed to meet the "special injury" standing requirement for public nuisance.  Id. at *13.

The court granted summary judgment on the trespass claim because there was no "invasion" of plaintiffs' property that interfered plaintiffs' use and enjoyment.  The PFOA was not alleged to have actually reached plaintiffs' property.

The court also granted summary judgment on the battery claim because plaintiffs have not alleged a present physical injury, and thus have failed to meet the element of "harmful contact."  The court opined that "[a]bsent any such demonstration that their contact with PFOA caused them harm, or that the PFOA present in their blood has altered the structure or function of some body part, the plaintiffs cannot sustain their battery claim based on the mere presence of PFOA in their blood."  Id. at *16.

But the court refused to grant summary judgment on the medical monitoring claim.  Under the decision in Bower v. Westinghouse Electric Corp., 522 S.E.2d 424 (W. Va. 1999), a medical monitoring plaintiff must prove that:

(1) he or she has, relative to the general population, been significantly exposed; (2) to a proven hazardous substance; (3) through the tortious conduct of the defendant; (4) as a proximate result of the exposure, plaintiff has suffered an increased risk of contracting a serious latent disease; (5) the increased risk of disease makes it reasonably necessary for the plaintiff to undergo periodic diagnostic medical examinations different from what would be prescribed in the absence of exposure; and (6) monitoring procedures exist that make the early detection of a disease possible.

522 S.E.2d at 432-33.

The court discussed the trend after Bower generally rejecting medical monitoring claims, but then applied Bower to conclude that the negligence allegations and the evidence of increased risk of disease created a disputed issue of fact regarding the medical monitoring claim.  Rhodes, 2009 WL 3080188 at *19-*21.  Thus, although plaintiffs lacked an injury sufficient to assert a negligence claim, they could proceed to trial on the medical monitoring claim.

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A recent decision from a federal district court in Massachusetts raises interesting issues regarding the effect of rulings in competing class actions.  In Gintis v. Bouchard Transportation Co., 2009 WL 95661 (D. Mass. Jan. 15, 2009), a tugboat and barge had strayed off course while navigating a shipping canal.  They collided with a reef, resulting in up to 98,000 gallons of oil being spilled into Buzzards Bay, contaminating real property all along the bay and requiring cleanup.

Buzzards Bay property owners had sued the defendants in both state and federal court in Massachusetts.  The state court had declined to certify a class of propertyowners from across the bay, finding that the named representatives from the town of Mattapoisett could not adequately represent the interests of a baywide class.  The state court ultimately did, however, certify a class of Mattapoisett residents.

In federal court, both the plaintiffs and defendants sought to use the state court decision offensively, urging that the order merited collateral estoppel effect.  The defendants sought to hold plaintiffs to the state court's determination that a baywide class was not certifiable.  The plaintiffs sought to hold defendants to the state court's determinations on the individual elements of Rule 23.

The court in Gintis rejected both assertions of collateral estoppel.  The court acknowledged that the Seventh Circuit has held that a court's denial of certification can be conclusive against absent proposed class members.  Id. at *2 (citing In re Bridgestone/Firestone, Inc. Tires Prods. Liab. Litig., 333 F.3d 763, 768 (7th Cir. 2003)).  But that can only be the case where the absent class members were adequately represented by class counsel.  Because the state court had held that the named plaintiffs there could not adequately represent other bay propertyowners, the state court's decision denying certification of a baywide class could not have collateral estoppel effect.

The court in Gintis similarly rejected the plaintiffs' attempt to give nonmutual offensive collateral estoppel effect to the state court's conclusions about predominance, superiority, and other elements of Rule 23.  It reasoned that plaintiffs could not easily have joined the earlier state court action, and further it would be fundamentally unfair to apply collateral estsoppel to defendants because the state court's determinations on the elements of Rule 23 were made based on assumptions about a much smaller and manageable Mattapoisett-only class.

Having dispensed with the collateral estoppel arguments, the district court proceeded to analyze whether the proposed class of more than 1,000 property owners from around the bay should be certified.  The plaintiffs argued that there were good grounds to certify the class for at least liability and causation determinations, leaving the calculation of damages to be determined subsequently on an individual basis. 

The court ultimately held that the predominance and superiority requirements were not satisfied because determining liability and causation on the public nuisance theory would require the same kind of individualized inquiry that a damages determination would require:

[T]he proposed class members would have to show that there has been an "unreasonable interference with a right common to the general public" and some "special injury of a direct and substantial character."  A showing of "unreasonable" interference and "special," "direct," and "substantial" injury would require an examination into the individual characteristics of the proposed class members' properties and the extent of contamination.

Id. at *5.  In reaching this conclusion, the court relied heavily on the decision in Church v. General Electric Co., 138 F. Supp. 2d 169 (D. Mass. 2001), in which a court refused to certify a class to determine whether PCB contamination constituted public nuisance and trespass for riparian landowners.

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