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

If I had any competency at all with computers, I would have some background music for this post:  the 1980 hit "One in a Million You" by Larry Graham (former bassist for Sly and the Family Stone and the father of the slap bass style of playing).

Featured today is the Sixth Circuit's recent decision in Hirsch v. CSX Transportation, Inc., No. 09-4548 (6th Cir. Sept. 8, 2011), in which some residents of Painesville, Ohio brought a class action against a railroad for damages allegedly resulting from a train derailment and three-day fire during which 1,300 people were evacuated from homes within a half-mile radius of the crash.  The class brought claims for nuisance, strict liability, trespass, negligence and medical monitoring.  The trial court granted a motion to dismiss the first three claims, but allowed discovery to go forward on the negligence claim and medical monitoring remedy.

CSX had stipulated to a breach of duty when the train derailed, so the only remaining elements of a negligence claim were proximate cause and injury.  The defendant moved for summary judgment, which the trial court granted.  Plaintiffs had at least four experts to advance their theory that class members had been exposed to dioxin from the fire at levels above the EPA's threshold of acceptability, thereby increasing their cancer risk by one in a million.

The Sixth Circuit affirmed the grant of summary judgment.  It began by noting the procedural posture of the case.  The defendants had not challenged the admissibility of plaintiffs' expert testimony under Daubert.  Rather, the district court had granted summary judgment based on the defendant's challenge to the sufficiency of the expert evidence.  As the court noted, "[e]ven where an expert's evidence is ruled admissible under the Daubert standards, a district court remains free to decide that the evidence amounts to no more than a mere scintilla."  Slip op. at 4-5.

Plaintiff's expert opined that although the class members had not sustained any physical injury to date, their relative risk of developing cancer had been increased by one chance in a million.  The Sixth Circuit held that this slight increase in cancer risk was not enough for a reasonable physician to order a medical surveillance program.

Even the "one-in-a-million" opinion was based on speculation about the amount of exposure to dioxin, as well as its source.  (Dioxin occurs naturally and exists in the environment at background levels.)  The court explained:

[W]e are left with a report speculating (based on speculation) that the Plaintiffs might have been exposed to quantities of dioxin somewhere in the ballpark of 43.9 ppt, and that their risk therefore might (or might not) be somewhere around 50% of a one in a million additional risk of developing cancer. . . .

. . . If something has a one-in-a-million chance of causing cancer, then it will not cause cancer in 999,999.  For some perspective, the National Safety Council estimates a person's lifetime risk of dying in a motor vehicle accident as 1 in 88.  The lifetime risk of dying in "air and space transport accidents" is roughly 1 in 7,000.  The risk of being killed by lightning is roughly 1 in 84,000, while the risk of being killed in a "fireworks discharge" stands at around 1 in 386,000.  These risks--of death, not disease--are all much smaller than what the plaintiffs allege in this case:  lifetime odds of developing cancer at 50% of 1 in 1,000,000.  To even approach that number, we can look at the average person's risk of dying from bathtub drowning in any given year (1 in 840,000).

Slip op. at 6-7 (citations omitted).

The Sixth Circuit concluded that "the Plaintiffs have alleged only a risk that borders on legal insignificance, have failed to produce evidence establishing even this hypothetical risk with any degree of certainty, and have demanded a jury trial based upon their expert's review of this evidence and conclusory statement of the relevant legal standard."  Slip op. at 8.  Accordingly, it affirmed the summary judgment for the defendant.

The Hirsch opinion provides a couple of excellent resources for risk information.  One is the National Safety Council's "Injury Facts," and the other is the Harvard Center for Risk Analysis.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Increasingly, foreign plaintiffs want to use US courts to adjudicate disputes that arose overseas.  The Texas Court of Appeals' decision in Lalila v. Parker Drilling Co., 2009 WL 618248 (Tex. App. -- Houston [1st Dist.] Mar. 12, 2009), is a good example of a court's use of the doctrine of forum non conveniens to control its docket and avoid adjudication of such disputes.

In Lalila, 766 Bangladeshis sued a number of defendants in Texas state court over two gas well explosions in Tangratila, Bangladesh, asserting causes of action in negligence, nuisance, trespass, and conversion.  The Texas defendants moved to dismiss for forum non conveniens.  The trial court granted the motion, which the appellate court reviewed for abuse of discretion.

Texas is one of the few states to have codified the rules relating to forum non conveniens.  That statute provides that if an act or omission occurring in Texas was a proximate or producing the injury, then forum non conveniens dismissal is not available.  The court noted, however, that both proximate and producing cause require "causation in fact," which "means the defendant's act or omission was a substantial factor in bringing about the plaintiff's injury, which would not otherwise have occurred."  The court reviewed the various acts that plaintiffs alleged occurred in Texas (design of the rig and parts, negligent supervision of the gas well project), concluding that plaintiffs' complaint never connected them up to the injuries suffered in Bangladesh in such a way as to meet the "causation in fact" requirement.

The court then proceeded to evaluate Bangladesh as a forum.  The court rejected plaintiff's criticism of the courts as corrupt, saying the evidence was based on hearsay from only three Bangladeshi attorneys.  The court gave little weight to the fact that Bangladeshi courts do not have a class action procedure, noting that it has joinder and is a judicial system based on English common law that has the types of torts asserted by Lalila.

The court also noted the legal inability and prohibitive costs of bringing witnesses from Bangladesh and translating their testimony, as well as the fact that the vast majority of evidence resides in Bangladesh.  The court concluded that the balance of public and private interests clearly weighed in favor of Bangladesh.  And thus, the court concluded that the trial court did not abuse its discretion in dismissing the case for foreign non conveniens.

• Email This
• Print
• Comments
• Trackbacks
• Share Link