Class Action Defense Cases–Sher v. Raytheon: Florida Federal Court Grants Class Action Status To Class Action Complaint Alleging Toxic Tort Liability For Ground Contamination

Oct 14, 2009 | By: Michael J. Hassen

Class Action Seeking Damages for Diminished Property Values resulting from Release of Chemicals causing Ground Contamination Warranted Class Action Treatment Florida Court Holds

Plaintiffs filed a putative class action against Raytheon alleging that the release of chemicals at a Facility owned by Raytheon caused ground contamination that diminished the property values. Sher v. Raytheon Co., 261 F.R.D. 651 (M.D. Fla. 2009) (Slip Opn., at 1-2, 13-14). According to the allegations underlying the class action complaint, “various industrial activities” were performed at the site which “caused chemicals…including TCE, vinyl chloride and 1, 4-dioxane, to leak into the soil and groundwater at the Facility.” Id., at 2 (footnotes omitted). The class action alleges that the chemicals leaked into the ground and “migrated beyond the boundaries of the Facility and into the surrounding neighborhood,” id., at 2-3. Plaintiffs claim that they were unaware of the ground contamination until a March 2008 news article and newscast. Id., at 4. The federal court explained, “In its current form, the proposed class area consists of over 1,000 property owners and 1,300 parcels of property…. The proposed class area is composed of ten sub-areas or neighborhoods…. There are seventeen different property types within the proposed class area, including various residential (single-family, apartments, condominiums); commercial (stores, shopping center); and institutional uses (schools, a church); as well as vacant land….” Id., at 5. The class action sought monetary damages “for the diminution in the value of their properties that the contamination caused and any restoration costs,” as well as injunctive relief to prevent further contamination. Id., at 13-14. Plaintiffs moved the district court to certify the litigation as a class action, id., at 1. Defense attorneys opposed class action treatment primarily on the ground that “common issues cannot predominate when the Court will have to make individualized inquiries as to causation and damages for each property owner.” Id., at 14. The defense also argued that “under Plaintiffs’ definition, every property owner would be included even if chemicals from the Facility cannot be detected in their groundwater.” Id. The district court granted class action treatment.

We do not here summarize the federal court’s discussion of the named plaintiffs or the various experts. See Sher, at 5-13. The district court began its analysis by noting that the definition of the class “is an overriding concern in environmental or mass toxic tort cases” and that “many courts treat ‘class definition’ as a threshold issue.” Id., at 17. This requirement necessitates that plaintiffs “‘distinguish[] members of the proposed class from the general public based upon’ the defendant’s alleged actions against them.” Id. (citations omitted). Plaintiffs argued that their proposed class definition was proper “because it includes a particular group (real property owners), that were harmed during a particular time frame (beginning on March 29, 2008), in a particular location (over Defendant’s groundwater plume) and in a particular way (groundwater contamination).” Id., at 18. Defense attorneys countered that “the geographic boundaries delineated on the Property Map arbitrarily identify a subset of the general public than a distinct class of persons affected by Defendant’s alleged activities” and that the putative class subsumes within its sweep “every property owner in the proposed class area – including countless persons whose properties show no detection of chemicals from the Facility.” Id. The federal court concluded that the class definition was sufficiently definite. Id., at 18-20.

After confirming that plaintiffs had standing to prosecute the class action, see Sher, at 21-22, the court turned to the class action requirements of Rule 23(a). It readily found that the numerosity and commonality had been met. Id., at 22-25. The court also had no difficulty in concluding that the adequacy requirement had been met, see id., at 28-30. The typicality requirement was challenged on several grounds – lack of standing, myriad factual differences between named plaintiffs and putative class members, and existence of unique defenses to claims by named plaintiffs. Id., at 26. But the district court rejected these arguments, see id., at 27-28. Accordingly, it concluded that the Rule 23(a) requirements had been met.

The district court rejected plaintiffs’ effort to certify a Rule 23(b)(2) class, concluding that the class action primarily sought monetary relief. See Sher, at 30-32. But the court concluded, after a detailed analysis, that the predominance test of Rule 23(b)(3) had been met. See id., at 32-38. Specifically, the court rejected defendant’s effort to transform the class certification question into a “battle of the experts,” see id., at 38-39, finding that “Defendant has lost sight of the class wide commonalities and unique circumstances present in this litigation that allow Plaintiffs to demonstrate compliance with Rule 23(b)(3)’s predominance requirement,” id., at 38. In essence, defendant’s focus on the experts’ testimony was inappropriate because it “delves too far into the merits of Plaintiffs’ case.” Id., at 39. And with respect to the superiority prong of Rule 23(b)(3), the district court agreed with plaintiff that a single action was preferable to numerous individual actions. Id., at 41-43. The court also rejected defendant’s argument that plaintiffs’ inability to present a coherent trial plan was fatal to class certification as it demonstrated that the trial would be unmanageable. Id., at 43. Accordingly, the district court granted plaintiffs’ motion for class action certification. Id., at 44.

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