Environmental Class Action Plaintiffs Achieve Major Victory in Federal Appeals Court

BALTIMORE, July 24, 2018 (GLOBE NEWSWIRE) — In a unanimous opinion, the United States Court of Appeals for the Sixth Circuit has affirmed a lower court’s decision to permit a lawsuit filed by Dayton, Ohio residents for toxic groundwater contamination to proceed as a class action. The ruling helps ensure that plaintiffs who consolidate in a single lawsuit a large number of claims that are economically infeasible to resolve in numerous separate lawsuits, will remain able to isolate and efficiently resolve key issues in complex cases.

“The Sixth Circuit rightly concluded that the district court appropriately certified key issues in this case for class-wide resolution,” said Howard A. Janet, managing partner of Janet, Janet & Suggs, LLC. “This preserves the right of our clients, who are primarily low-income, to present their claims to a jury. The ruling also ensures the parties will not have to litigate the same complex legal and scientific issues hundreds of times, which would be a tremendous waste of scarce judicial resources.” Janet, Janet & Suggs, LLC is the class action law firm that serves as lead counsel for Plaintiffs.

The underlying lawsuit concerns contamination of the McCook Field neighborhood over many years by two large underground toxic plumes containing known and probable human carcinogens. The neighborhood is now a Superfund site. Thirty named plaintiffs, representing owners of approximately 540 residential properties, filed suit in 2008 against Chrysler Motors LLC, Behr Dayton Thermal Products, LLC, Behr America, Inc. (which acquired Chrysler after its bankruptcy), and Aramark Uniform & Career Apparel, Inc. Plaintiffs allege that degreasing operations at a Chrysler automotive plant and dry cleaning operations at an Aramark facility created two overlapping toxic plumes, which Defendants knew about but failed to remediate for many years. As a result, hazardous vapors have risen (and continue to rise) from the plumes into Plaintiffs’ homes, endangering their health and vastly diminishing their property values. Toxic vapors in the McCook Field neighborhood are so severe that Dayton authorities closed a local elementary school for safety concerns. The plumes also have the potential to contaminate Dayton’s entire water supply. (The vapors that the plumes emit contain trichloroethylene (“TCE”), which, according to the EPA, “is carcinogenic to people through all routes of exposure”; and tetrachloroethylene (“PCE,” a/k/a “PERC”), which the U.S. EPA classifies as “likely to be carcinogenic to humans.”)

After extensive, costly document discovery and depositions, Plaintiffs filed a motion for class certification in 2015. The motion asked the district court to permit a jury to decide, on a class-wide basis, whether Defendants were liable for the contamination (pursuant to Federal Rule of Civil Procedure 23(b)(3)). Plaintiffs requested in the alternative that a jury be allowed to resolve, on a class-wide basis, seven key issues in the case (pursuant to Rule 23(c)(4)). These issues, which are central to the claims of every class member, include the responsibility of each Defendant for the plumes, whether it was foreseeable that Defendants’ activities would create the plumes and harm the Plaintiffs, and whether Defendants negligently failed to stop and remediate the contamination.

Judge Walter H. Rice, of the United States District Court for the Southern District of Ohio, denied class certification under Rule 23(b)(3) as to the entire issue of liability, finding that common questions did not predominate over individual ones. But the court granted class certification under Rule 23(c)(4) on the seven important, common issues Plaintiffs identified. Defendants appealed the district court’s Rule 23(c)(4) certification of issue classes. Defendants contended that appellate courts are divided on whether a court may certify a Rule 23(c)(4) issue class if it finds that common question do not predominate over individual ones as to the entire issue of liability. Defendants argued that the Sixth Circuit should adopt the “narrow view” in this alleged debate, and hold that the district court abused its discretion by certifying issue classes under Rule 23(c)(4) after it had denied certification of the issue of liability as a whole.

A unanimous panel of the Sixth Circuit disagreed, and affirmed the district court’s order. Writing for the panel, Judge Jane Stranch emphasized the wide discretion of a district court on whether to certify a class. The panel agreed with the “broad view” of issue certification—the majority position among federal appellate courts. The broad view “permits utilizing Rule 23(c)(4) even where predominance has not been satisfied for the cause of action as a whole.” Under the broad view, courts analyze whether the predominance requirement has been met as to each common issue, rather than as to the entire issue of liability. “Because each issue may be resolved with common proof,” the court held, “and because individualized inquiries do not outweigh common questions, the seven issue classes that the district court certified satisfy Rule 23(b)(3)’s predominance requirement.”

The Sixth Circuit also held that litigating the seven issues on a class-wide basis was a superior method of resolving the case when compared with the alternative—hundreds of separate lawsuits concerning the same fundamental issues. Judge Stranch observed that “the properties are in a low-income neighborhood, meaning that class members might not otherwise be able to pursue their claims. Even if the class members brought suit individually, the seven certified issues would need to be addressed in each of their cases.” Thus, “[r]esolving the issues in one fell swoop would conserve the resources of both the court and the parties.”

The opinion casts doubt on the extent of the division among federal appellate courts on the question of whether the “broad view” or “narrow view” is correct. The court observed that “any potency the narrow view once held [in the Fifth Circuit, where the narrow view originated] has dwindled,” and that the Eleventh Circuit has given only “tenuous” support to the narrow view. The court also rejected as premature Defendants’ argument that litigating the case as an issues class action violated the Seventh Amendment right to a jury.

“This ruling is a key victory on the path to obtaining full justice for our disadvantaged clients, who have suffered the severe negative effects of contamination of their neighborhood by carcinogens over many years,” said Patrick A. Thronson of Janet, Janet & Suggs, LLC, who co-authored the brief submitted on behalf of Plaintiffs. “It is also a positive, meaningful development in class action law as a whole. The decision will help ensure that other plaintiffs and defendants remain able to efficiently resolve key discrete issues in complex cases, saving litigants and courts time and money.”

The lawsuit is captioned Terry Martin, et al. v. Behr Dayton Thermal Products, LLC, et al., case no. 3:08-cv-00326 in the district court, and case no. 17-3663 in the Sixth Circuit.

ABOUT JANET, JANET & SUGGS, LLC (www.JJSjustice.com)

Janet, Janet, and Suggs, LLC (JJS) represents plaintiffs in complex, high stakes litigation in class action, environmental contamination, medical malpractice, sexual abuse, fraudulent business practices, product liability, qui tam, and Federal Tort Claims Act cases.  The firm has successfully resolved claims against some of the nation’s largest corporations, including Honeywell, BP America, The Johns Hopkins Hospital, Penn State University, DuPont, Dow Corning, Baxter Healthcare, Bayer, Wyeth, and the Mayo Clinic, among many others.

JJS has won verdicts and negotiated settlements that collectively exceed $1 billion, working alone or in collaboration with other firms. The class action lawyers at JJS achieved a $190 million settlement in a class action lawsuit against Johns Hopkins Hospital for sexual misconduct by a physician, a $19.5 million settlement in a class action lawsuit against BP America and ARCO for mining contamination in Nevada, and a $10 million settlement in a New Jersey class action lawsuit against Honeywell International for toxic hexavalent chromium contamination. Headquartered in Baltimore, Maryland the firm has a national practice, with offices in nine states.


Howard A. Janet
Janet, Janet & Suggs, LLC
(410) 653-3200


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