Plutonium Class Action in Supreme Court

The U.S. Supreme Court last week invited the Solicitor General to weigh in on the issues in a significant class action, in which the plaintiffs allege plutonium contamination. Merilyn Cook, et al. v. Rockwell International Corporation, et al., No. 10-1377 (U.S.).

The plaintiffs were more than 15,000 property owners near the former Rocky Flats Nuclear Weapons Plant in Colorado.  In 2006, a jury found against defendants Dow and Rockwell.  In 2008, the federal trial court ordered the companies to pay a total of $926 million in damages. The 10th Circuit reversed.

At issue now is whether state substantive law controls the standard of compensable harm in suits under the Price-Anderson Act, or whether the Act instead imposes a federal standard; and, secondly, whether, if a federal standard applies, a property owner whose land has been contaminated by plutonium must show some physical injury to the property beyond the contamination itself in order to recover.

The court of appeals had concluded that plutonium contamination by itself was not adequate under the Act. In particular, property owners’ fears that the plutonium might damage their health was not a sufficient basis to award damages.

The case raises the all-too-familiar scenario of trial courts dispensing with traditional elements of a cause of action in order to proceed with class litigation. Plaintiffs alleged that defendants were  responsible for plutonium emissions that diminished their property values. But they did not prove any present physical injury to person or property, or loss of use of property, on a class-wide basis. Rather, they vigorously --and successfully-- urged the district court to dispense with any such injury requirement. The district court allowed petitioners to recover based solely on a risk of injury to person or property, even if unverifiable or scientifically unfounded.

 

Federal Appeals Court Vacates Class Action Verdict In Radiation Case

Last week, a federal appeals court vacated a $926 million judgment against Rockwell International  and Dow Chemical over alleged plutonium contamination. See Cook v. Rockwell International Corp., No. 08-1224 (10th Cir., 9/3/10).

The owners of properties near the former Rocky Flats Nuclear Weapons Plant (“Rocky Flats”) filed a proposed class action against the facility’s operators under the Price-Anderson Act, alleging trespass and nuisance claims arising from the alleged release of plutonium particles onto their properties. Rocky Flats, located near Denver, Colorado, was established by the US in the 1950s to produce nuclear weapon components. The government contracted with Dow to operate the facility from 1952 to 1975, and then with Rockwell from 1975 to 1989.

Some radiation cases seem to last longer than the half-life of uranium.  The complaint here was filed in 1990.  A class was certified in 1993. After over fifteen years of litigation, the district court conducted a jury trial between October, 2005 and January, 2006, resulting in a jury verdict in favor of the plaintiff class, which numbered about 15,000.

This appeal ensued, and a main issue was the jury instructions (we leave for another day the preemption and PAA statutory issues). In accordance with the district court’s construction of Colorado law, the jury instructions did not require plaintiffs to establish either an actual injury to their properties or a loss of use of their properties. With respect to the nuisance claims, the district court instructed the jury that plaintiffs could establish defendants’ conduct interfered with the use and enjoyment of the class properties by proving defendants’ conduct exposed plaintiffs to “some increased risk of health problems” or caused conditions “that pose a demonstrable risk of future harm" to their property area.  As to plaintiffs’ trespass claims, the district court instructed the jury that plaintiffs were not required to show that plutonium is present on the class members' properties at any particular level or concentration, that they suffered any bodily harm because of the plutonium, or that the presence of plutonium damaged these properties in some other way.

First, the nuisance theory. Under Colorado law, a plaintiff asserting a nuisance claim must establish an interference with the use and enjoyment of his property that is both “substantial” and “unreasonable.”  A jury may find the presence of radioactive contamination creates an actual risk to health and thereby interferes with a plaintiff’s use or enjoyment of his land if the contamination disturbs the plaintiff’s comfort and convenience, including his peace of mind, with respect to his continued use of the land.  But, said the court,  a scientifically unfounded risk cannot rise to the level of an unreasonable and substantial interference. To the extent plaintiffs here relied on anxiety from an increased risk to their health as an interference with the use and enjoyment of their properties, that anxiety must arise from scientifically verifiable evidence regarding the risk and cannot be wholly irrational. No reasonable jury could find that irrational anxiety about a risk that cannot be scientifically verified tips this balance so as to render the interference "unreasonable."  So the charge was wrong to the extent it permitted any subjective anxiety to suffice for an unreasonable interference.

The court of appeals then turned to the trespass theory.  And here, the issue turned on whether the plaintiffs' claim was a traditional trespass theory or a so-called "intangible trespass."  The parties agreed that to prevail under a traditional trespass claim, a plaintiff must establish only a physical intrusion upon the property of another without the proper permission from the person legally entitled to possession. A plaintiff need not establish any injury to his legally protected interest in the land or damage to the land itself.  Unlike a traditional trespass claim, however, the court made clear that an intangible trespass claim requires an aggrieved party to prove physical damage to the property  caused by such intangible intrusion. 

So is the invasion of plutonium particles onto real property a traditional or intangible trespass claim?  The cases suggest that “intangible” is something that is impalpable, or incapable of being felt by touch. Noise intrusion and electromagnetic fields emitted by power lines are examples of the intangible. Neither can be perceived by any of the senses.   Here,  plaintiffs had to concede that the plutonium particles allegedly present on their properties are impalpable and imperceptible by the senses. Although the particles in question have mass and are "physically present" on the land, because the particles are impalpable, the trespass alleged here must be tried as an intangible trespass.

Consequently, the instructions on this point were also in error, and on remand, plaintiffs will be required to prove the plutonium contamination caused “physical damage to the property” in order to prevail on their trespass claims.

Interestingly, because the district court’s class certification analysis failed to consider whether
plaintiffs could establish various elements of their claims, properly defined, the 10th Circuit also reversed the district court’s class certification ruling. Upon remand, the district court will have to  revisit the class certification question to determine whether plaintiffs can establish the proper elements of their claims on a class-wide basis.  Obviously, the need to show unreasonable interference and physical damage may each create predominating individual issues.

 

Federal Court Denies Medical Monitoring Class Action

A federal district court recently denied class certification in toxic tort litigation alleging that a chemical plant's long-term airborne release of vinyl chloride had risked their health and lowered property values. Gates v. Rohm and Haas Co.,  2010 WL 774327 (E.D. Pa. 3/5/10).

Plaintiffs alleged that vinyl chloride released from Rohm & Haas’s specialty chemicals manufacturing facility in Ringwood, Illinois contaminated the groundwater in and around McCollum Lake Village, as well as the air in the Village. Plaintiffs allege that between 1968 and 2002, the vinyl chloride evaporating from the shallow plume blew over the Village, contaminating the air in the Village and causing some Village residents to breathe varying amounts of it. Plaintiffs claimed that the levels of vinyl chloride in the Village air are higher than the background level. 

They asked the court to certify two classes: (1) a medical monitoring class, and (2) a property damage class.  On the latter, although plaintiffs alleged that the Village’s water and air have been contaminated, plaintiffs sought class certification only on the “outdoor air” theory. On the former class, the parties disputed whether, and the extent to which, exposure to vinyl chloride is associated with brain cancer in humans. Plaintiffs alleged that exposure to vinyl chloride placed Village residents at a higher-than-normal risk of contracting brain cancer, requiring periodic monitoring. In support of the medical monitoring program, plaintiffs submitted the report of an expert who opined that a class-wide medical monitoring regime using MRI's was medically reasonable given the alleged exposure to vinyl chloride.

Plaintiffs moved for certification of their property class under Rule 23(b)(3) and for certification of their medical monitoring class under both Rule 23(b)(2) and (b)(3). Rule 23(b)(2) permits certification where “the party opposing the class has acted or refused to act on grounds generally applicable to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Rule 23(b)(3) permits class actions where “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).

The Third Circuit has clarified the legal standard for class certification and the district courts’ attendant duties in In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305 (3d Cir. 2008).  The decision to certify a class calls for findings by the court, not merely a threshold showing by a party, that each requirement of Rule 23 is met.  Proper analysis under Rule 23 requires rigorous consideration of all the evidence and arguments offered by the parties.  Weighing conflicting expert testimony at the certification stage is not only permissible; it may be integral to the rigorous analysis Rule 23 demands. The court may not decline to resolve a genuine legal or factual dispute because of concern for an overlap with the merits. See also Hohinder v. United Parcel Service, Inc., 574 F.3d 169 (3d Cir. 2009).

As is typical, the battleground was the predominance and cohesiveness requirements of the rule.  (The court found that the individual issues that defeat the predominance requirement of Rule 23(b)(3) also defeat the cohesion requirement of Rule 23(b)(2)).

Regarding the elements of a medical monitoring claim, the court noted that whether vinyl chloride is a hazardous substance, whether a responsible monitoring procedure exists that makes the early detection of the disease possible, and whether the prescribed monitoring regime is different from that normally recommended in the absence of the exposure, did not here appear to present individualized questions in the context of this case.  (However, they can present individual issues in other cases depending on the substance, exposure, and risk.)

Next was the exposure element of the claim, with the key question being whether each plaintiff in the proposed class was exposed to a level greater than the normal background level. Plaintiffs must demonstrate that common proof may be used to determine whether each and every Class Member was exposed to a minimum level of vinyl chloride by Rohm and Hass that exceeds the applicable background levels.  While admitting individual exposure will vary depending on factors such as the time spent in the Village, plaintiffs asserted that class treatment is appropriate because there is a common minimum average daily exposure rate over time for any point within the Village. However, a rigorous analysis of plaintiffs’ expert evidence revealed that it does not reflect that all class members were exposed to vinyl chloride at a minimum level above  background, or that this determination could be made with common proof. Plaintiff's expert's  methodology  employed an averaging technique, making certification is inappropriate. Suffice it to say, an average is an average is an average. It is, in essence, a convenient fiction made up of numbers that are higher and lower than the average; it does not reflect whether every putative class member was exposed to vinyl chloride at a level above background, let alone at a level that carries a significantly increased risk of a latent disease. Exposures in the Village would vary  from year to year, such that a putative class member’s exposure would depend on the particular year or years in which he or she lived there. Individual class members’ locations and lifestyles potentially could result in significant differences in exposure, making Plaintiffs’ calculation of an “average exposure” even less useful. The time that each Village resident spent indoors, as opposed to outdoors, and the time that each individual spent away from the Village at work, away at school, on extended vacations, for example, are other factors that raise significant individual issues with respect to exposure levels. The evidence reflected that the putative class members’ habits, work schedules, and school schedules may have caused significant variations in the time that class members actually spent in the Village.

Of course, said the court, plaintiffs are not charged with the duty of calculating the precise exposure of any given individual, much less all of them, in order to secure class certification. However, plaintiffs must demonstrate that they can use common proof to demonstrate that each individual was exposed to a level above background levels. This, they had not done.

On the significant risk element, the court noted that it was impossible to tell from plaintiffs’ presentation of the average level of exposure to vinyl chloride - which itself is based on an average of certain vinyl chloride levels that were detected in certain test spots - whether every class member has a significantly increased risk of contracting a serious latent disease.  The first problem is that the level used by plaintiffs, derived from a regulatory figure, was not developed with an appropriate methodology for calculating a danger point for purposes of a medical monitoring claim. The value identified by plaintiffs only reflected the level of vinyl chloride at and below which a mixed population is safe, in the opinion of a public health agency. It did not, however, demonstrate the opposite, i.e., that any extra levels above the level are significantly harmful to necessitate medical monitoring.  Such a regulatory risk assessment cannot and does not support an opinion that each individual class member has experienced a significantly increased risk of disease.  The value may be appropriate as a prophylactic safety marker, perhaps for regulatory use, to minimize potential risks and protect the groundwater and air of a mixed population of individuals; however, it ought not be used as a predictive measure of actual risks for every individual in that population.  Precautionary measures to keep the general population safe are a fundamentally distinct form of relief from the medical monitoring cause of action. 

The court then turned to the question of whether the prescribed monitoring regime (that is, serial MRI exams) was reasonably necessary according to contemporary scientific principles. The court recognized that a medical monitoring program cannot be left open for the class members to fashion at will, but must consist of a specific form of monitoring different from what class members would ordinarily receive from regular physicals.  Plaintiffs argued  that serial MRIs are reasonable for the proposed class, but that in any event, the scheme could be modified after certification or allow individuals to tailor it to their particular circumstances (for example, a CAT scan for people who cannot tolerate MRIs).

The court had two problems with this argument.  One issue was what we may call the "more harm than good" calculus.  A blanket prescription for serial MRIs in asymptomatic individuals, coupled with the risks and drawbacks of serial MRI procedures, only strengthened the denial of class certification. For instance, the proposed class includes all residents of the Village, including children. The administration of MRIs to young children presents certain challenges because the children must lie still in the MRI machine for long periods of time. Conducting MRIs on children may require administering drugs to sedate or anesthetize them, a process that may prompt side effects of its own. The contrast agent used may pose risks for patients with kidney disease, for whom it can lead to nephrogenic systemic fibrosis, a potentially fatal condition; therefore, gadolinium is not recommended for use with such patients. In addition, medical monitoring in general, and MRIs in particular, can lead to stress and other adverse psychological consequences, and may induce claustrophobia in some patients.

The second problem with plaintiffs' flexible approach to their plan (i.e., that individual differences and medical needs can be accommodated through the use of CAT scans, open MRI machines, and other neurological exams. later), is that the determination of which accommodation, if any, is appropriate for which patient necessarily involves individual questions that cannot be determined on a class-wide basis. Moreover, the problems with the monitoring scheme can not be alleviated by a decision to just “deal with it later” at the summary judgment stage. Although the court may alter a monitoring scheme after the certification stage of the litigation has passed, that does not mean that problems with a monitoring plan can be ignored at the certification stage.

Turning to the property damage class, plaintiffs focused on "liability" as a common issue.  But the court found that even assuming that the fact of contamination was provable by common proof here, liability alone could not be proven with common proof. Common evidence may offer one potential source of the contaminants, but many other explanations may exist that are specific to a particular property. See Fisher v. Ciba Specialty Chems. Corp., 238 F.R.D. 273, 307 (S.D. Ala. 2006); see also Thomas v. FAG Bearings Corp., 846 F. Supp. 1400, 1404 (W.D. Mo. 1994).This can be especially true in this case, where differing levels of potential contamination over time affected different portions of the Village to different extents, depending on location, all of which must be compared to
the background level.

Finally, the court’s concerns about the number, complexity, and scope of issues that are plaintiff-by-plaintiff determinations also went to the superiority issue. Even if the court were to certify alleged common issues, the subsequent separate proceedings necessary for each plaintiff would undo whatever efficiencies such a class proceeding would have been intended to promote. Even more problematic, because a jury may be called upon to weigh the potential impact from Rohm and Haas’s actions on a particular property against those of another source of contamination, the “second” jury could well wind up re-considering the evidence of Rohm and Haas’s actions presented in the class proceeding.