Class Action Decision in "Hurricane" Toxic Tort

An interesting class action opinion came out this week a suit claiming certain residents of St. Croix suffered personal injury and property damage during a hurricane due to negligent storage of toxic materials. In Henry et al. v. St. Croix Alumina LLC, No. 1:99-cv-00036 ( D.V.I), the District Court decertified a class of plaintiffs seeking past damages, but granted class certification to residents of certain neighborhoods on St. Croix who allege they may suffer injuries or property damages from future exposure to bauxite and red mud released from an aluminum refinery on the island.

The case arose out of the effects of Hurricane Georges, which hit the Virgin Islands in 1998. The plaintiffs filed suit in1999, alleging that during the storm two materials, bauxite and red mud, were distributed around the island. Bauxite is a red colored ore with the consistency of dirt or dust from which alumina is extracted and used to produce aluminum. A by-product of the alumina extraction process is a substance called red mud, which was stored in piles outside the refinery using a method known as dry-stacking.

The court originally granted certification in 2000 of a class defined as all individuals who lived or worked in six communities adjacent to and downwind from the refinery. The district court certified subclasses of plaintiffs seeking recovery for property damages and personal injury and those seeking medical monitoring and punitive damages. See 2000 WL 1679502 (D.V.I. Aug. 7, 2000).

In 2006, the district court decertified all subclasses but held that liability for personal injury and/or property damage, as well as whether punitive damages are appropriate, may be determined on a class-wide basis. Plaintiffs then submitted a trial plan: in Phase 1, plaintiffs would litigate liability and the possibility of a punitive damages multiplier on a class-wide basis, and in Phase II, individual plaintiffs would have the opportunity to prove "individual causation and all damages issues" independently in separate trials.

In late 2007, the district court began to express doubts about the class, noting that the formulation of a workable trial plan was elusive. Of course, a district court retains the authority to modify or decertify completely a class at any time before final judgment.  Fed. R. Civ. P. 23(c)(1)(C); In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 537 (3d Cir. 2004). Indeed, the Advisory Committee Notes on Rule 23 envision modification of a class certification if, upon fuller development of the facts, the original determination appears unsound. Zenith Labs., Inc. v. Carter-Wallace, Inc., 530 F.2d 508, 512 (3d Cir. 1976).

Decertification

In this week’s opinion, the court began by noting that class certification is ordinarily inappropriate in mass tort claims which present questions of individualized issues of liability, because such cases are unlikely to satisfy the requirements of Rule 23(b)(3). In actions for personal injury resulting from a sudden release of toxic chemicals, federal courts have regularly denied class certification for failure to satisfy the predominance requirement of Rule 23(b)(3). Here, even in the seeming mass accident context, whether defendants owed and breached specific duties to the plaintiffs also may not be common questions. The existence and scope of defendants' duties to warn or to protect, for instance, may depend on the exact path the hurricane took and the distance between the refinery and a particular plaintiff's dwelling.  Hurricane Georges buffeted St. Croix for over twenty-four hours, during which time the wind's speed and direction changed several times, as did the rain's severity. It is certainly not a given that the hurricane affected the people and properties in the neighborhoods of the proposed class in the same way over the entire course of the storm.

Readers of MassTortDefense know that courts have rejected classes in these contexts largely for reasons having to do with the concerns over issues of causation. The fact of each class member's personal injury and the causal link between that individual's injury and the spill are questions that cannot be answered meaningfully on a class-wide basis. Noting the general/specific causation distinction, the relevant question can be not whether the substance at issue has the capacity to cause harm, but whether it did cause harm and to whom.

Thus, with respect to personal injury claims, each plaintiff must prove causation. Each will need to prove the duration and nature of his or her exposure to the two released substances, bauxite and red mud. Some plaintiffs may have been exposed to only one substance, while those exposed to both may have been exposed in differing degrees or combinations. The possibly differing levels of toxicity of bauxite and red mud will further complicate matters. Defendants were able to show through discovery that among the seventeen named plaintiffs, the onset, duration, and severity of the alleged injuries varied enormously. Moreover, the possibility of alternative explanations for plaintiffs' injuries is real and can be explored only in light of a given plaintiff's pre-existing medical conditions whose symptoms may have matched the injuries allegedly caused by defendants' conduct.

Regarding property damage, the court found that each plaintiff’s property will be damaged to a different degree, if at all, based on its proximity to the plant site, topography, and the off-site migration or dispersal patterns of the toxic substances. Individual litigants will have to establish injury and causation in order to succeed on the merits. Each plaintiff will have to prove whether the substance that accumulated in and around his or her home or workplace was bauxite, red mud, or some combination of the two.

The court also commented on the plaintiffs’ “stigma” theory. Plaintiffs' expert asserted that the diminution in property value attributable to defendants' conduct is likely uniform across neighborhoods and can be estimated at roughly 30%. He further concluded that homes in the neighborhoods continue to suffer from a "stigma" as a result of the alleged contamination such that even uncontaminated houses show a marked drop in property value. Yet, discovery revealed that his approach excludes dozens of distinct factors that could impact the value of any particular house. So, the questions of causation as well as damages with respect to property damage claims do not predominate as required under Rule 23(b)(3).


Equitable Relief Class
However, the district court took a different approach to plaintiffs’ motion for certification of a new class which seeks only equitable relief, requiring defendants to remove the piles particulates from the island of St. Croix. While 23(b)(2) class actions have no predominance or superiority requirements, the class claims must be “cohesive." Barnes v. Am. Tobacco Co., 161 F.3d 127, 143 (3d Cir. 1998). Courts will deny certification in Rule 23(b)(2) cases in the presence of
disparate factual circumstances. There is case law that a court should be more hesitant in accepting a (b)(2) suit which contains significant individual issues than it should under subsection 23(b)(3). E.g., Santiago v. City of Phila., 72 F.R.D. 619, 628 (E.D. Pa. 1976).

While the court found the demand for injunctive relief to be unclear, it boiled down to two elements: safe containment of the bauxite and red mud as it currently exists on the refinery property; and removal from St. Croix of all bauxite and red mud from wherever it exists on the island. Citing the principle of cohesiveness, courts have granted certification where plaintiffs sought to have a single defendant cease emissions of toxic substances, see, e.g., Olden v. LaFarge Corp., 203 F.R.D. 254, 269 (E.D. Mich. 2001), aff'd, 383 F.3d 495 (6th Cir. 2004), but denied certification where plaintiffs sought individualized remediation in the form of real property cleanup for release of toxic substances, see, e.g., In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liab. Litig., 209 F.R.D. 323, 341-49 (S.D.N.Y. 2002). By contrast, only a handful of district courts have certified classes seeking individualized remediation under Rule 23(b)(2).

In this case, plaintiffs' request for remediation with respect to their real property would force the court to confront a host of heavily individualized factual questions for each parcel, including the nature and extent of contamination as well as the necessity and feasibility of remediation. But by contrast, the alleged nuisance stemming from the storage of possibly toxic substances at the refinery can likely be abated, said the court, with respect to all plaintiffs without separate determinations of individual causation, liability, or damages. A class seeking such relief is cohesive enough and can be the subject of an action under Rule 23(b)(2) -- only insofar as the plaintiffs seek cleanup, abatement or removal of the substances currently present on the refinery property.
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