The federal court in the FEMA Trailer MDL has denied class certification to a class of plaintiffs alleging that they were harmed by formaldehyde exposure after residing in Federal Emergency Management Agency trailers following Hurricanes Rita and Katrina. See In re FEMA Trailer Formaldehyde Products Liability Litigation, MDL No.1873 (E.D. La., class certification denied 12/29/08).
The plaintiffs had filed claims against the United States and several manufacturers alleging that they were exposed to high levels of formaldehyde contained in emergency housing provided to them by FEMA. The plaintiffs proposed six subclasses, including four subclasses for residents divided by state (Louisiana, Alabama, Texas, and Mississippi), a medical monitoring (“future medical services”) subclass, and an economic loss subclass.
More on the medical monitoirng in a later post. Today, the focus is the current injruy claims.
Judge Engelhart found that the proposed subclasses did not meet the requirements of Federal Rule of Civil Procedure 23(a) or 23(b)(3).
Interestingly, the court found that the plaintiffs had not met the commonality requirement of 23(a), usually not a demanding test. Plaintiffs alleged that common questions existed relating to why and how formaldehyde exposure occurred, what level of formaldehyde exposure was experienced, and who was exposed to the formaldehyde. Plaintiffs, as is typical, claim that defendants’ conduct or fault was a central and common issue. Plaintiffs argued that common issues of fact also relate to the scientific nature and behavior of formaldehyde. On the other hand, defendants argued that there is no commonality because plaintiffs lived in different units, and the court agreed. This case did not involve one single product that is alleged to have caused plaintiffs damage. Instead, plaintiffs have alleged that dozens of different manufacturing defendants have manufactured products that have caused them harm. The court found that the question of defendants’ conduct or fault in the failure to exercise reasonable care is clearly not a common issue because there are dozens of defendants who have manufactured numerous different products that have allegedly caused harm to plaintiffs. In that regard, a determination of fault as to one defendant will not answer the question as to any other defendant. Last, a determination relating to the scientific nature and behavior of formaldehyde is not common as to all class members as the true issue relates to the specific level of formaldehyde that each plaintiff experienced in his/her unit and the resulting symptoms allegedly suffered by that particular plaintiff.
A second significant part of the analysis focused on 23(a)’s requirement of typicality. defendants noted that the proposed class representatives claim a myriad of symptoms and conditions, including unconsciousness, convulsions, nephritis, and hypothermia. Indeed, the Plaintiff Fact Sheet (“PFS”) designated a total of 47 alleged formaldehyde-related symptoms, ranging from low blood pressure to miscarriage and stillbirth. Plaintiffs have diverse medical histories, symptoms, and alleged exposures. Typicality is not satisfied where plaintiffs’ claims and defenses will be dominated by individual evidence. Thus, this MDL involves factual variations as to each plaintiff and proposed class representative which spawn individual issues relating to injury and causation as to each individual. Each plaintiffs’ claims and alleged injuries will require an examination of individual evidence, precluding the satisfaction of the typicality requirement for class certification. For example, plaintiffs admitted that a child’s lungs react differently to formaldehyde exposure than an adult’s lungs. Plaintiffs’ counsel also admitted that temperature, humidity, and ventilation affect and contribute to differences in formaldehyde levels in the units.
Turning to Rule 23(b)(3), the court found common issues did not predominate and the class method was not superior: this MDL involves hundreds of models of trailers, produced by dozens of different manufacturers. Moreover, even units of the same make and model, made by the same manufacturer, can differ in regards to what components parts were used and when it was manufactured. Further complicating this aspect of these claims, exposure to formaldehyde (at certain levels) is fairly common in today’s society and the chemical is produced by the human body itself. Each plaintiffs’ potential formaldehyde exposure and any resulting health effects vary according to several different factors. Each plaintiff’s habits vary greatly, resulting in the necessity for individualized inquiries delving into the use of heating and air conditioning, and also window or door use (important to how ventilated a particular unit was). Some
plaintiffs are exposed to sources of formaldehyde and eye/nose/throat irritants unrelated to that said to be found in the units (resulting from contact with air pollution, pesticides, pets, cleaning agents, mold, bacteria, and viruses).
Further, as for the alleged injuries to the plaintiffs themselves, the court said that each one has suffered an individual physical injury that is specific to that particular individual, precluding the predominance of issues relating to the plaintiffs themselves. Also, the personal injury claims among plaintiffs vary greatly.
The Court concluded that plaintiffs’ claims will, to a significant degree, be individualized with respect to causation and will include individual issues of exposure, susceptibility to illness, and types of physical injuries. Hence, no class action.