Ebert et al v. General Mills, Inc.
Filing
161
MEMORANDUM OPINION AND ORDER. Plaintiffs Amended Motion to Certify Class 93 ) is GRANTED and the class as proposed is certified, subject to the explicit identification of the beginning and ending dates of liability. The class definition must expli citly exclude individuals who have a physical injury as a result of Defendant's conduct. Plaintiffs reserve the right to maintain later actions for personal injuries. Future individual claims by class members for bodily injury or medical monit oring are not precluded if they could not have been brought at this time. Defendant General Mills, Inc.s Motion to Exclude Expert Testimony and Opinions of Dr. David Ozonoff 119 is GRANTED IN PART and DENIED IN PART as follows: The Court declines to exclude Dr. Ozonoffs opinions relating to environmental contamination in the proposed Class Area and the public health risk to the population in the proposed Class Area, but does exclude Dr. Ozonoffs opinions relating to the real estate market. Defendant General Mills, Inc.s Motion to Exclude Expert Testimony and Opinions of Dr. Lorne G. Everett 124 is DENIED. (Written Opinion.) Signed by Judge Donovan W. Frank on 02/27/2015. (RLB)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Karl Ebert, Carol Krauze, and
Jackie Milbrandt, individually and
on behalf of all persons similarly situated,
Civil No. 13-3341 (DWF/JJK)
Plaintiffs,
v.
MEMORANDUM
OPINION AND ORDER
General Mills, Inc.,
Defendant.
Edward J. Manzke, Esq., and Shawn M. Collins., Esq., The Collins Law Firm PC;
Michael D. Hayes, Esq., and Norman B. Berger, Esq., Varga Berger Ledsky Hayes &
Casey; and Anne T. Regan, Esq., and J. Gordon Rudd, Jr., Esq., Zimmerman Reed,
PLLP; and Mark H. Thieroff, Esq., Siegel Brill, P.A., counsel for Plaintiffs.
Benjamin W. Hulse, Esq., Corey Lee Gordon, Esq., Emily A. Ambrose, Esq., and
Jerry W. Blackwell, Esq., Blackwell Burke PA; and Jeffrey Fowler, Esq., O’Melveny &
Myers LLP; and Mark J. Carpenter, Esq., Carpenter Law Firm PLLC, counsel for
Defendant.
INTRODUCTION
This matter is before the Court on the following motions: (1) Plaintiffs Karl Ebert
(“Ebert”), Carol Krauze (“Krauze”), and Jackie Millbrandt’s (“Millbrandt”), all
individually and on behalf of all persons similarly situated (together, “Plaintiffs”),
Amended Motion to Certify Class 1 (Doc. No. 93); (2) Defendant General Mills, Inc.’s
1
Plaintiffs’ initial motion to certify the class (Doc. No. 13) was terminated in
April 2014, and Plaintiffs filed the present Amended Motion to Certify Class at that time.
(“GMI” or “Defendant”) Motion to Exclude Expert Testimony and Opinions of
Dr. David Ozonoff (Doc. No. 119); and (3) GMI’s Motion to Exclude Expert Testimony
and Opinions of Dr. Lorne G. Everett (Doc. No. 124). For the reasons set forth below,
the Court grants Plaintiffs’ motion and denies Defendant’s motions.
BACKGROUND
This dispute is a putative class action brought by Plaintiffs alleging that GMI
caused the chemical substance trichloroethylene (“TCE”) to be released into the area
surrounding a former GMI facility (the “Facility”) in the Como neighborhood in
Minneapolis, Minnesota. Plaintiffs allege that the TCE, in the form of vapors, is
threatening home and business owners in that area. Much of the background for this case
is set forth in detail in the Court’s recent Memorandum Opinion and Order relating to
GMI’s motion to dismiss. (Doc. No. 151.) The Court incorporates the factual
background from that Memorandum Opinion and Order by reference here. The parties
have also provided the following additional background for purposes of this motion.
The Como neighborhood implicated by this suit is primarily residential, but was
historically industrial and is currently surrounded by various industrial uses. (See Doc.
No. 118 (“Hulse Decl.”) ¶ 4, Ex. B (“McHugh Report & Decl.”) at 13-18.) GMI points
to a number of nearby facilities that were likely users of solvents, including TCE.
(McHugh Report & Decl. at 15.) GMI’s experts, Mr. McHugh and Mr. Mercer, state that
these other sources have also caused contamination in the groundwater in Como. (See
McHugh Decl. at 18-21; Hulse Decl. ¶ 5, Ex. C (“Mercer Decl.”) at 32, 34, 37.)
Mr. McHugh also states that household products can account for the presence of TCE
2
vapors inside a household. (McHugh Decl. at 19-20.) Plaintiffs allege that GMI’s
history with respect to the area surrounding the facility shows that GMI was the
substantial cause of the neighborhood’s TCE contamination via the approximately
15,000 gallons of disposal of certain solvents into the groundwater between 1947 and
1962. For example, in 1984 Barr Engineering outlined the geographic boundaries of the
TCE contamination associated with the Facility. (See Doc. No. 136-4; see also Doc.
No. 136-6 (GMI correspondence relating to the contamination); Doc. No. 136-7 (court
testimony regarding the source of the contamination).) Plaintiffs also refer to a number
of state agency documents reflecting the same. (See, e.g., Doc. Nos. 136-12, 136-13,
136-14, 136-15, 136-16.) One of Plaintiffs’ experts, Dr. Lorne G. Everett
(“Dr. Everett”), states that GMI’s disposal of “large quantities of toxic chemicals,
including TCE, at the Facility, has resulted in widespread soil vapor contamination,” and
that he bases his opinion on a review of scientific data. (Doc. No. 136-18 at 11-16.)
In or around 1981, GMI conducted an investigation of the soil and groundwater
around the Facility. (McHugh Report & Decl. at 3.) Levels of TCE differ between the
soil and the groundwater in the Como area. (McHugh Report & Decl. at 3, 9-11.)
In 1984, GMI signed an agreement formalizing their arrangement to conduct remedial
action to address TCE in the groundwater around the Facility, including the
implementation of a pump-and-treat system. (Id. at 3-4.) The pump-and-treat system
was shut down in 2010. (Id.)
In 2013, an evaluation of the area around the Facility showed the presence of TCE
vapors. (McHugh Decl. at 20-21.) GMI then agreed to a program whereby soil beneath
3
building foundations would be tested and Vapor Mitigation Systems (“VMSs”) would be
installed where TCE soil vapors are reported at levels above 12 micrograms per cubic
meter (µg/m3). GMI has installed such VMSs and has also installed VMSs in certain
homes with less than 20 µg/m3 where adjacent properties exceed that amount. (McHugh
Decl. at 40; Hulse Decl. ¶ 3, Ex. A (“Borak Decl.”) ¶ 15.) According to Mr. McHugh,
327 homes in the Como neighborhood have had soil vapor testing and do not have
detectable TCE concentrations. (McHugh Decl. at 41.) VMSs have been installed in 118
homes. (Hulse Decl. ¶ 10, Ex. H at 3.) The named Plaintiffs have received customized
VMSs. (See Doc. No. 100-3; see also Hulse Decl. ¶ 11, Ex. I (“Krauze Dep.”) at
113-17.) GMI’s expert, Mr. Borak, states that the VMSs are “highly protective” for
residents. (Borak Decl. ¶ 21.) Plaintiffs point to evidence that vapors persist. (See, e.g.,
Doc. No. 136-18 at 19, 26-28.)
Plaintiffs assert five legal claims on a class basis: (1) violation of the
Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”);
(2) common law negligence; (3) private nuisance; (4) willful and wanton misconduct; and
(5) violation of the Resource Conservation and Recovery Act (“RCRA”). (Doc. No. 87,
Second Am. Compl. (“SAC”) at ¶¶ 26-61.) Plaintiffs appear to seek certification of only
the following narrow issues: (1) whether GMI is liable to owners of the properties in the
defined Class Area; and (2) whether injunctive relief is warranted to compel
comprehensive remediation. (See Doc. Nos. 15, 135.)
4
DISCUSSION
Plaintiffs seek class certification, and Defendant has moved to exclude the
testimony of two of Plaintiffs’ experts, Dr. Everett and Dr. David Ozonoff
(“Dr. Ozonoff”), under Federal Rule of Evidence 702 and Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579 (1993). The Court will address Defendant’s Daubert
motions first because the evidence presented by these experts is relevant to the Court’s
determination on whether class certification should be granted.
I.
Motions to Exclude Expert Testimony
A.
Legal Standard
Before accepting the testimony of an expert witness, the trial court is charged with
a “gatekeeper” function of determining whether an opinion is both relevant and reliable.
Daubert, 509 U.S. at 589-90. Under Federal Rule of Evidence 702, which governs the
admission of expert testimony, an expert may testify if: (1) the expert’s scientific,
technical, or other specialized knowledge will help the fact-finder to understand the
evidence or determine a fact in issue; (2) the testimony is based on sufficient facts or
data; (3) the testimony is the product of reliable principles and methods; and (4) the
expert has reliably applied those principles and methods to the facts of the case. See also
Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001).
The Court’s focus should be on a preliminary assessment of “whether the
reasoning or methodology underlying the testimony is scientifically valid” and “whether
that reasoning or methodology properly can be applied to the facts in issue.” Daubert,
509 U.S. at 592–93; see also United States v. Dico, Inc., 266 F.3d 864, 869 (8th
5
Cir. 2001). In determining whether the proposed expert testimony is reliable, the Court
can consider: (1) whether the theory or technique can be and has been tested; (2) whether
the theory or technique has been subjected to peer review and publication; (3) the known
rate of potential error; and (4) whether the theory has been generally accepted. Daubert,
509 U.S. at 593-94.
When examining an expert opinion, a court applies a general rule that “the factual
basis of an expert opinion goes to the credibility of the testimony, not the admissibility,
and it is up to the opposing party to examine the factual basis for the opinion in
cross-examination.” Bonner v. ISP Techs., Inc., 259 F.3d 924, 929 (8th Cir. 2001)
(citation and quotation omitted). However, “if the expert’s opinion is so fundamentally
unsupported that it can offer no assistance to the jury,” then it must be excluded. Id. at
30. In Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the Supreme Court
concluded that “the trial judge must have considerable leeway in deciding in a particular
case how to go about determining whether particular expert testimony is reliable.” 526
U.S. at 152.
The application of the Daubert test, however, is somewhat limited at the stage of
class certification. See In re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d 604,
610-14 (8th Cir. 2011) (holding that district courts may properly apply a “focused” or
“tailored” Daubert inquiry at the class certification stage). Daubert is helpful at the class
certification stage in guarding against certification of a class that is based on expert
opinion from a methodology so apparently flawed that it is inadmissible as a matter of
law. See In re Visa Check/Mastermoney Antitrust Litig., 192 F.R.D. 68, 76-77
6
(E.D.N.Y 2000); In re Potash Antitrust Litig., 159 F.R.D. 682, 695-98 (D. Minn. 1995)
(finding that plaintiffs are required only to make a “threshold showing” of whether proof
will be “sufficiently generalized”). The Daubert inquiry at this procedural stage,
therefore, only scrutinizes the reliability of expert testimony in light of the criteria
for class certification and the current state of the evidence. Zurn Pex, 644 F.3d at 614.
While “[t]he main purpose of Daubert exclusion is to protect juries from being
swayed by dubious scientific testimony,” at the class certification stage, the Court, not a
jury, is the decision maker, and therefore a less stringent analysis is required. Id. at 613.
Thus, expert disputes at class certification are resolved only to the extent necessary to
determine the nature of the evidence that would be sufficient, if the plaintiff’s general
allegations were true, to make out a prima facie case of class liability. Id. at 611 (quoting
Blades v. Monsanto Co., 400 F.3d 562, 567 (8th Cir. 2010)). It would be inappropriate to
evaluate expert opinions on the conclusions they generate and a court should rather
“focus . . . solely on principles and methodology.” Id. at 615 (quoting Daubert, 509 U.S.
at 595). A party and its experts should not be expected to have fully evaluated all data at
the preliminary stage of class certification. Id. at 611-612. Furthermore, class
certification is a “tentative,” “preliminary,” and “limited” determination. Id. at 613
(internal citations omitted).
B.
Dr. Everett
1.
Background
Dr. Everett has practiced Environmental Science for more than 40 years,
specifically focusing on contaminant migration in groundwater, soil, and vapor intrusion
7
located in the vadose zone (the area between the water table and land surface). 2 (Doc.
No. 126 (“Gordon Decl.”) ¶ 4, Ex. 1 (“Dr. Everett Report”) at 2 (improperly labeled as
Exhibit 2).) Dr. Everett has received awards for his work in the field of environmental
sciences. (Id. at 61.)
Currently, Dr. Everett is the Chief Scientist, President, and CEO of L. Everett &
Associates. (Id. at 5, 61.) For the past 18 years, Dr. Everett also served as the Charter
Chairman for the American Society for Testing and Materials International task
committee on Vadose Zone Monitoring in which he developed eleven national ASTM
Vadose Zone Monitoring standards, with four being related to soil gas monitoring and
vapor intrusion. (Id. at 5-6.) Dr. Everett has presented before Congress on numerous
occasions and holds many positions on different panels related to environmental sciences.
(Id. at 61.) Dr. Everett has worked with a number of federal agencies and in multiple
capacities. (Id. at 7-9.) Dr. Everett writes extensively on the topic of the vadose zone
and the migration of hazardous waste. (See Id. at 6-8, 61.)
In his expert report, Dr. Everett essentially opines that GMI’s past disposal of
toxic chemicals at its the Facility is the source of TCE groundwater and soil vapor
problems in the proposed Class Area, which poses an imminent and substantial
endangerment to human health and the environment. (Id. at 9-12.) More specifically,
Dr. Everett opines that the evidence is consistent with GMI as the source of
contamination. (See generally id.)
2
Dr. Everett holds an Honorary Doctor of Science Degree from Lakehead
University (1996) in Canada, a Ph.D. in hydrology from the University of Arizona
(1972), and a M.S. in Limnology from the University of Arizona (1969). (Id. at 6, 61.)
8
2.
Analysis
Dr. Everett was asked to opine on conditions relating to potential soil,
groundwater, and air contamination in and around the Facility. (See generally Dr. Everett
Report.) Defendant argues Dr. Everett failed to reliably apply proper principles and
methods in developing his opinions. Defendant asserts that Dr. Everett derived his
opinions that “substantially all of this groundwater contamination originates from the
General Mills Facility,” and that “there is no other known source of vapor contamination
in the proposed class area” by using a flawed application of his own methodology and by
relying on incomplete data and therefore, that those opinions should be excluded. (Doc.
No. 125 at 14.) Specifically, GMI asserts that this flawed application resulted in
Dr. Everett using an area that was too small and wrongly centered when identifying
possible sources causing contamination. This includes his alleged disregard for certain
upgradient sites that could be possible contributors to TCE in the Proposed Class Area.
According to Defendants, absent this testimony, Plaintiffs fail to adequately establish a
common source of the contaminant and therefore cannot meet requirements for class
certification. The Court disagrees.
First, although not in dispute, the Court notes Dr. Everett’s substantial
qualifications and expertise to opine on issues of soil and groundwater contamination at
the General Mills site. Second, the parties agree that the Court is tasked with examining
the soundness of Dr. Everett’s methodology, not with evaluating his conclusions or the
correctness of his opinions. Zurn Pex, 644 F.3d at 615. Dr. Everett’s Expert Report and
Rebuttal Affidavit show that Dr. Everett employed the “multiple lines of evidence
9
methodology.” As Plaintiffs note, courts have determined that that methodology is
reliable and it is similarly reliable here. (Doc. No. 137 at 17-18 (citing Abrams v. Ciba
Specialty Chem. Corp., Civ. No. 08-68, 2010 WL 779276, at *9 n.15 (S.D. Ala. Mar. 2,
2010)).) Dr. Everett did not fail to follow his own methodology. Instead, he considered a
number of factors and scientific data consistent with the multiple lines of evidence
methodology. Further, Dr. Everett did not fail to follow his own methodology when
centering this search radius on the plume as the site of interest rather than the General
Mills facility. Dr. Everett thoroughly explained the reasons for, and applicable standards
behind, his methodology of focusing on the plume. The same is true of his search radius
which was consistent with accepted standards and methodologies in the field. (Doc.
No. 134, Everett Rebuttal at 6.)
Finally, Dr. Everett also did not fail to follow his own methodology when he
examined Frank’s Auto Repair and Anne Gendein Trust as possible additional sources of
contaminant. Based on the data available to him at the time, Dr. Everett fully considered
and excluded these two possible sources consistent with his methodology of
appropriately assessing other potential sites. Additionally, Dr. Everett considered these
sites a second time with the additional data which Defendant argues Dr. Everett failed to
consider. Consistent with the methodology applied in the field, Dr. Everett fully
considered other possible and reasonable sources of contamination and did not fail to
reliably apply his own, well accepted methodology.
If Defendant wishes to show that there are other sites that impact the plume, they
may do so with their own experts and in cross-examining Dr. Everett, but this does not
10
change the fact that Dr. Everett properly applied his methodology. At its essence,
Defendant’s dispute lies with Dr. Everett’s scientific conclusions, not his adherence to his
own methodology. Defendant here fails to establish that there is too great of an analytical
gap between the data and the opinion proffered. Junk, 628 F.3d at 448. Instead,
Defendant’s concerns with Dr. Everett’s testimony go directly to the credibility of his
testimony, and not its admissibility. Defendant will have to examine the factual basis for
his opinion on cross examination. See Bonner, 259 F.3d at 929.
In sum, the Court cannot conclude that Dr. Everett’s opinion is so flawed that it is
inadmissible as a matter of law. In re Visa Check/Mastermoney, 192 F.R.D. at 76-77.
Dr. Everett’s opinions are therefore appropriately considered by this Court in its
examination of class certification and will not be excluded under Daubert and Rule 702
at this time.
C.
Dr. Ozonoff
1.
Background
Dr. Ozonoff is an epidemiologist, physician, professor of Environmental Health,
and Chair Emeritus at Boston University School of Public Health. (Doc. No. 121
(“Ambrose Decl.”) ¶ 3, Ex. A (“Report of Dr. Ozonoff”), at 148.) 3 He specializes and
teaches on the epidemiology of diseases, specifically those caused by exposure to toxic
chemicals and other environmental agents. (Id. at 3.) Dr. Ozonoff served as the Chair for
3
Dr. Ozonoff is currently licensed to practice medicine in Massachusetts.
Dr. Ozonoff received his M.D. in 1967 from Cornell University Medical College and his
M.P.H. in 1968 from Johns Hopkins University School of Hygiene and Public Health.
(Report of Dr. Ozonoff, at 148.)
11
the Department of Environmental Health at the Boston University School of Public
Health from 1977-2003. (Id. at 3, 149.) Since 1977, Dr. Ozonoff taught and continues to
teach environmental health to doctoral and masters candidates, including courses on
Cancer Toxicology and Toxicology and Epidemiology of the Chlorinated Ethylenes. (Id.
at 3.) Dr. Ozonoff has received numerous honors for his work related to toxicology and
epidemiology, specifically the effects of toxic chemicals on the human body. (Id. at
148-49.) Dr. Ozonoff has worked for a variety of different agencies at the federal, state,
and international level. (Id. at 5.) Dr. Ozonoff has authored over 100 articles and reports
on science and public health related issues, with many focused specifically on the effects
of TCE. (See id. at 5, 53-62.) Dr. Ozonoff has testified in court numerous times for the
past 30 years and has presented numerous lectures on the use of science in the courtroom.
(Id. at 164-65.)
In part, Dr. Ozonoff’s expert report opines that TCE is a carcinogen that poses an
imminent and substantial danger to the residents of the proposed Class Area and that the
weight-of-evidence methodology favors the proposition that exposure to TCE found in
the proposed Class Area through inhalation presents an increased and unacceptable risk
of cancer and other negative health effects. (Id. at 2, 48.)
2.
Analysis
Dr. Ozonoff was asked to opine on whether the “environmental contamination of
the proposed Class Area . . . constitute[s] a public health risk to the affected population.”
(Ozonoff Report, Ex. A at 1.) The parties agree that to state a claim under the Resource
Conservation and Recovery Act (“RCRA”), Plaintiffs must establish that class members
12
face “imminent and substantial endangerment.” 42 U.S.C. § 6972(a). Plaintiffs must be
able to show that their claims of a generalized health threat and “imminent and
substantial” danger apply on a class-wide basis. With respect to Dr. Ozonoff, Defendant
asks the Court to disregard his report and opinions relating to the “imminent and
substantial endangerment” caused by TCE in making its class certification decision
because his opinions are not sufficiently reliable or relevant under Federal Rule of
Evidence 702 and Daubert.
First, Defendant argues that Dr. Ozonoff’s opinions on “imminent and substantial
danger” are not supported by either exposure data or a risk assessment. Specifically,
Defendant asserts that Plaintiffs must show the proposed class is affected in a uniform
and homogenous manner. According to Defendant, because Dr. Ozonoff failed to
examine any actual exposure data and did not conduct a “risk characterization,” as that is
defined by the Public Health Community, he cannot opine on this issue.
The Court finds no support for Defendant’s argument that there need be uniform
contamination for all Plaintiffs. Although it is the case that Plaintiffs must show that
TCE presents an “imminent and substantial danger” to health or the environment,
Plaintiffs need not show that the threat is homogenous. See, e.g., Smith v. ConocoPhillips
Pipe Line Co., 298 F.R.D. 575, 585 (E.D. Mo. 2014) (“It is sufficient under Rule 23(b)(2)
if class members complain of a pattern or practice that is generally applicable to the class
as a whole. Even if some class members have not been injured by the challenged
practice, a class may nevertheless be appropriate.”); Mejdrech v. Met-Coil Sys. Corp.,
319 F.3d 910, 911-12 (7th Cir. 2003) (allowing claimant-specific issues such as the
13
degree to which each property is contaminated to proceed as a class action). Moreover,
such a question does not go to Dr. Ozonoff’s reliability and is more properly addressed in
the Court’s discussion on typicality, below. However, whether or not Dr. Ozonoff
examined actual and reliable data and properly applied the methodology of his field when
assessing risk, do relate to his reliability. The Court concludes that Dr. Ozonoff’s
opinion is sufficiently reliable with respect to the data applied and methodology used to
overcome Defendant’s Daubert challenge at this phase in the proceedings. Dr. Ozonoff
opines that TCE at certain levels presents a significant immediate and future risk in the
Class Area. He bases his opinion on the data upon which GMI relied when deciding to
install VMSs in 2013. Should Defendant wish to challenge this data with different data,
Defendant’s challenge is appropriate for cross examination and does not speak to
Dr. Ozonoff’s reliability.
Second, Defendant argues that Dr. Ozonoff is merely applying the “precautionary
principle” in asserting that the protective level for TCE is “zero”—meaning if something
might cause problems, avoiding it will not cause harm, and may cause good. Further,
Defendant argues Dr. Ozonoff in fact admits that some levels of TCE may be acceptable.
Again, these are fact and credibility questions that Defendant may challenge, but
which do not go to Dr. Ozonoff’s reliability. Similarly, Defendant’s argument that
potential risks of exposure must be determined on an individual basis does not impact his
reliability, and additionally is not accurate in light of the Court’s discussion below, which
concludes that questions on individualized exposure will not be addressed as part of those
questions for which the Court will agree to certify the class.
14
Finally, Defendant argues that to the extent Dr. Ozonoff opines on the impact of
TCE on residential real estate markets, he is unqualified and his opinion should be
excluded. Thus, it is inadmissible ipse dixit. The Court agrees on this ground, and
concludes that Dr. Ozonoff’s opinion as it relates to the real estate market is outside of
his area of expertise and cannot be relied upon by Plaintiffs at the class certification
stage.
In sum, the Dr. Ozonoff’s opinions are appropriately considered by the Court in its
examination of class certification, except as they relate to real estate market, and will not
be excluded under Daubert and Rule 702 at this time.
II.
Motion for Class Certification
A.
Legal Standard
A class action serves to conserve the resources of the court and the parties by
permitting an issue that may affect every class member to be litigated in an economical
fashion. Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 155 (1982). Rule 23 of the
Federal Rules of Civil Procedure governs class certification and requires that “[t]o be
certified as a class, plaintiffs must meet all of the requirements of Rule 23(a) and must
satisfy one of the three subsections of Rule 23(b).” In re St. Jude Med., Inc., 425 F.3d
1116, 1119 (8th Cir. 2005) (citations omitted). Specifically,
The Rule 23(a) requirements for class certification are: (1) the putative
class is so numerous that it makes joinder of all members impracticable;
(2) questions of law or fact are common to the class; (3) the class
representatives’ claims or defenses are typical of the claims or defenses of
the class; and (4) the representative parties will fairly and adequately
protect the interests of the class.
15
Id. (citing Fed. R. Civ. P. 23(a)).
Rule 23(b)(1) requires a plaintiff to establish that “prosecuting separate actions by
or against individual class members would create a risk of . . . inconsistent or varying
adjudications with respect to individual class members that would establish incompatible
standards of conduct for the party opposing the class.” Fed. R. Civ. P. 23(b)(1).
Rule 23(b)(2) allows for certification if a plaintiff establishes that a defendant has “acted
or refused to act on grounds that apply generally 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) requires that: (1) common questions of law or fact
predominate over questions affecting only individual members; and (2) that proceeding
as a class action is the superior method of adjudication. Fed. R. Civ. P. 23(b)(3).
District courts retain broad discretion in determining whether to certify a class.
Prof’l Firefighters Ass’n of Omaha, Local 385 v. Zalewski, 678 F.3d 640, 645 (8th
Cir. 2012). However, the court must conduct a “rigorous analysis” to ensure that the
prerequisites of Rule 23 are satisfied. Elizabeth M. v. Montenez, 458 F.3d 779, 784 (8th
Cir. 2006) (citing Gen. Tel. Co. of S.W. v. Falcon, 457 U.S. 147, 161 (1982)). “The
preliminary inquiry of the class certification stage may require the court to resolve
disputes going to the factual setting of the case, and such disputes may overlap the merits
of the case.” Luiken v. Domino’s Pizza, LLC, 705 F.3d 370, 372 (8th Cir. 2013) (citation
omitted). “Nonetheless, such disputes may be resolved only insofar as resolution is
necessary to determine the nature of the evidence that would be sufficient, if the
plaintiff's general allegations were true, to make out a prima facie case for the class.”
16
Blades v. Monsanto Co., 400 F.3d 562, 567 (8th Cir. 2005). The party seeking class
certification carries the burden of proof regarding the requirements of Rule 23. Coleman
v. Watt, 40 F.3d 255, 258 (8th Cir. 1994).
B.
Rule 23(a) Requirements
Plaintiffs seek certification of the following class: “[A]ll persons and
non-governmental entities that own residential property within the ‘Class Area.’” 4 (Doc.
No. 87 at ¶ 20.) Plaintiffs seek certification of the following: (1) whether GMI is liable
to owners of the properties in the defined Class Area; and (2) whether injunctive relief is
warranted to compel comprehensive remediation. (See Doc. Nos. 15, 135.)
Defendants do not appear to dispute either that the proposed class satisfies the
numerosity and commonality requirements of Rule 23(a) or the adequacy of Plaintiffs’
counsel to act as Class Counsel. 5 Instead, Defendant opposes certification on the
following Rule 23(a) grounds: (1) adequacy; and (2) typicality. Defendant also argues
the class is not ascertainable. Defendant further opposes certification under all of the
Rule 23(b) provisions. Below, the Court considers whether Plaintiffs meet these
Rule 23(a) and Rule 23(b) factors in the context of Defendant’s arguments.
4
The “Class Area” is based on the geographic boundaries depicted in the figure
attached to the SAC as Exhibit 1. (Doc. No. 87 at ¶ 20, Ex. 1.)
5
Even so, the Court notes that the Court is satisfied that Plaintiffs’ counsel are able
and willing to competently and vigorously prosecute the action, thus satisfying
Rule 23(a)(3) and (4) with respect to adequacy of counsel. The Court addresses
numerosity and commonality below.
17
1.
Numerosity & Commonality
Defendant does not dispute that Plaintiffs meet the numerosity and commonality
requirements. Therefore, the Court only briefly addresses each in turn. Under
Rule 23(a)(1), a class action may only be maintained if “the class is so numerous that
joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). In general, a putative
class with over forty members meets this requirement. See Alberts v. Nash Finch Co.,
245 F.R.D. 399, 409 (D. Minn. 2007). With at least two hundred identifiable properties
in the proposed Class Area, Plaintiffs easily meet this requirement.
For commonality, there must be “questions of law or fact common to the class.”
Fed. R. Civ. P. 23(a)(2). Here, Plaintiffs allege standardized conduct by Defendant that
contaminated the proposed Class Area and seek the same remedies as a result. The
commonality threshold is also met.
2.
Typicality
Rule 23(a)(3) requires that “the claims or defenses of the representative parties are
typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). Generally, where
“claims or defenses of the representative parties and the members of the class stem from
a single event or are based on the same legal or remedial theory,” typicality is met. See
Paxton v. Union Nat’l Bank, 688 F.2d 552, 561-62 (8th Cir. 1982). “[I]n some
circumstances, the test for typicality is ‘fairly easily met so long as other class members
have claims similar to the named plaintiff.’” In re GenesisIntermedia, Inc. Sec. Litig.,
232 F.R.D. 321, 329 (D. Minn. 2005) (citing DeBoer v. Mellon Mortg. Co., 64 F.3d 1171,
1174 (8th Cir. 1995)).
18
Defendant argues that Plaintiffs are not typical because they have unique causation
issues, differing mitigation statuses, and differing loss-of-use claims. Defendant states
that “the nature, extent, and cause of contamination is [sic] unique to each property
within the proposed Class Area.” (Doc. No. 117 at 24.) Specifically, according to
Defendant, Plaintiffs cannot show that GMI was the cause of contamination at each
individual property. Defendant further asserts that potential health risks must be
determined on a property-specific basis and that this requirement is particularly true in
light of the differing amount of relief already received—that is, some homes have
received VMSs and others have not. Finally, Defendant argues that the individuals at
each property have differing degrees and types of use of their property.
Here, the named plaintiffs and the members of the proposed class seek the same
remedy, and they do so based on the same events (GMI’s alleged release of chemicals
into the Como neighborhood), as well as on the same legal theories. Plaintiffs’ claims are
premised on the following core issues: whether GMI caused TCE to be released at the
Facility; whether those releases have resulted in the existence of vapor-form TCE in the
Class Area which surrounds the Facility; whether GMI is liable for any vapor
contamination in the Class Area; whether TCE vapor has caused damage; and whether
abatement should be ordered. Further, Plaintiffs present, and the Court has considered,
preliminary evidence of completed testing that supports Plaintiffs’ claims that the Class
Area contains TCE vapors and that GMI disposed of TCE at the Facility.
As Plaintiffs note, differing levels of contamination and different use and
treatment of each property do not defeat typicality at the class certification stage. See,
19
e.g., LeClerq v. Lockformer Co., Civ. No. 00-7164, 2001 WL 199840, at *4-5 (N.D. Ill.
Feb. 28, 2001) (concluding that any different levels of contamination in the proposed
class area did not defeat typicality because the plaintiffs alleged that a single course of
conduct caused the same type of injury to all proposed class members); see also McHugh
v. Madison-Kipp Corp., Civ. No. 11-724 (W.D. Wis. Apr. 16, 2012) (Doc. No. 136-2)
(finding that Plaintiffs satisfied typicality requirements, “despite minor difference in the
experiences of the class members, the claims of all class members rely on the same legal
theory and arise out of the same course of conduct”). Plaintiffs allege that the existence
of the TCE vapor is the damage suffered by all class members and present preliminary
evidence that it is the result of Defendant’s uniform course of conduct. Therefore,
Defendant’s arguments relating to the unique nature of each property in this case do not
defeat typicality and the typicality bar is met.
3.
Adequacy
Under Rule 23(a)(4), Plaintiffs must establish that “the representative parties will
fairly and adequately protect the interests of the class” for purposes of certification. Fed.
R. Civ. P. 23(a)(4). This requirement has two prongs: (1) the representatives’ attorney
must be qualified and willing and able to prosecute the case competently and vigorously;
and (2) the named Plaintiffs’ interests must not diverge from the interests of the class as a
whole. See Parkhill v. Minn. Mut. Life Ins. Co., 188 F.R.D. 332, 339 (D. Minn. 1999);
Sonmore v. CheckRite Recovery Servs., Inc., 206 F.R.D. 257, 263 (D. Minn. 2001) (citing
Paxton, 688 F.2d at 562-3) (“The focus of Rule 23(a)(4) is whether: (1) the class
representatives have common interests with the members of the class, and (2) whether the
20
class representatives will vigorously prosecute the interests of the class through qualified
counsel.”). A court must ascertain whether the proposed class representatives have “a
sufficient incentive to represent the class members.” Id. (citing In re Milk Prods.
Antitrust Litig., 195 F.3d 430, 437 (8th Cir. 1999)). “A named plaintiff who lacks the
desire to ‘vigorously pursue’ the interests of potential class members is not a fair and
adequate representative of the class.” Id. (citation omitted).
Defendant does not argue that the named Plaintiffs’ attorneys are inadequate, and
the Court sees no indication that this would be the case. (See supra at 17 n.5.) Defendant
does argue, however, that the class representatives do not protect the interests of absent
members who have personal injury claims. Defendant argues that Minnesota law does
not allow for the “splitting” off and reserving for separate litigation of personal injury
claims from other claims. Defendant’s argument is based on principles of res judicata.
The adequacy determination is complicated in this case. Plaintiffs have
voluntarily excluded any personal injury claims and seek only property damages and
injunctive relief not relating to personal injury claims. The Court agrees with Defendant
that this presents concerns for absent class members that the Court must consider—both
for absent class members who have present personal injury claims and also who have
potential future personal injury claims.
First, the Court acknowledges that Minnesota recognizes a general rule against
claim splitting, which is essentially based on principles of res judicata. See
Brown-Wilbert, Inc. v. Copeland Buhl & Co., PLLP, 732 N.W.2d 209, 222-25 (Minn.
2007). Under this rule, parties are prevented from splitting personal injury claims from
21
other claims because by bringing and adjudicating one type of claim, a party may be
barred from later bringing the other claims on principles of res judicata. See id.
A number of courts have declined to certify a class based on a finding that
representation was inadequate where plaintiffs split claims. See, e.g., Thompson v. Am.
Tobacco Co., Inc., 189 F.R.D. 544, 550-51 (D. Minn. 1999) (denying class certification
in part because named class action plaintiffs were inadequate representatives where they
jeopardized class members’ ability to bring personal injury claims in a later suit by
“splitting off” potential personal injury claims); Martin v. Home Depot U.S.A., Inc., 225
F.R.D. 198, 203-04 (W.D. Tex. 2004) (refusing to certify a class on adequacy of
representation grounds because any property and personal injury claims arose from the
same transaction and because waiver of personal injury claims could result in such claims
being barred by res judicata in the future); In re Methyl Tertiary Butyl Ether (“MTBE”)
Prods. Liab. Litig., 209 F.R.D. 323, 338-40 (S.D.N.Y 2002) (holding that the class
representatives were unable to adequately protect the interests of absent class members
with personal injury claims).
However, other courts have found just the opposite. Bentley v. Honeywell Int’l,
Inc., 223 F.R.D. 471, 484-85 (S.D. Ohio 2004) (holding that “there would seem to be no
reason to inquire into any bodily injuries alleged [in a class suit for injunctive relief and
property damages, and] . . . res judicata would not apply to bar and/or prejudice any
personal injury claims that the class members may have”); Muniz v. Rexnord Corp., Civ.
No. 04-2405, 2005 WL 1243428, at *4 (N.D. Ill. Feb. 10, 2005) (finding that the
plaintiffs were adequate class representatives and that a class action seeking damages for
22
property damage would not bar and/or prejudice any personal injury claims that the class
members may have); Gates v. Rohm & Haas Co., 265 F.R.D. 208, 217-19 (E.D.
Pa. 2010) (finding that the adequacy requirement was met where plaintiffs were not suing
for either present or future injuries, but sought medical monitoring and property damage
claims); see also Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 880 (1984)
(stating that a judgment in a class action is conclusive in a subsequent action on issues
“actually litigated and determined”).
Here, the Court concludes that concerns relating to adequacy of representation
with respect to those persons with potential future personal injury claims do not create so
great a risk as to justify denial of class certification. It is generally accepted that
preclusion of such future claims relates to claims that were actually litigated or “could
have been litigated.” Hauschildt v. Beckingham, 686 N.W.2d 829, 840 (Minn. 2004).
Further, for res judicata to apply, the estopped party must have had a “full and fair
opportunity to litigate the matter.” Id.; see Brown-Wilbert, 732 N.W.2d at 222-25. Here,
those class members with potential future claims could not litigate them now on the
grounds that they do not yet exist. See Gates, 265 F.R.D. at 219 (“The entire point of
claim preclusion is to prevent future actions on grounds that could have been raised in an
earlier action, not to prevent future actions on grounds that did not yet exist (and therefore
could not have been raised) in an earlier action.”) (emphasis in original).
However, with respect to those class members with present personal injury claims,
the Court’s analysis is more complicated. There is certainly a genuine and serious risk
that res judicata and claim-splitting bars would apply to members who do not litigate
23
personal injury claims now. See Thompson, 189 F.R.D. at 550-51 (“[T]he named
Plaintiffs’ efforts to reserve personal injury and damage claims may, in fact, jeopardize
the class members’ rights to bring such claims in a subsequent case.”). However, based
on the fact that Plaintiffs have represented to the Court that there is no class member with
present personal injury claims, the Court concludes that Plaintiffs can be adequate
representatives at this time. See Gates, 265 F.R.D. at 219 (concluding that for possible
present injuries, the risks of claim-splitting were not fatal to certification in part because
they did not appear to exist at the time of certification). Further, the Court can always
modify or decertify the class should it become necessary in the future. 6 Thus, the Court
concludes that the adequacy requirements have been met and that a class action is still the
best mechanism for proceeding with this case.
C.
Ascertainability
An implicit requirement of class certification is that the “class, as proposed, is
objectively ascertainable.” Brown v. Wells Fargo & Co., 284 F.R.D. 432, 444 (D.
Minn. 2012). “At a minimum, the description must be ‘sufficiently definite that it is
administratively feasible for the court to determine whether a particular individual is a
member.” ConocoPhillips, 298 F.R.D. at 581 (citation omitted).
6
The Court can further protect the rights of class members with personal injuries, if
any, by the following: ensuring the class definition explicitly excludes individuals who
have a physical injury as a result of Defendant’s conduct; ordering that Plaintiffs reserve
the right to maintain later actions for personal injuries; narrowing issues addressed by this
class action to liability and injunctive relief only; and the creation of subclasses where
appropriate.
24
Plaintiffs seek to define the proposed class based on specified geographical
boundaries. Defendant objects, arguing that the boundaries as proposed fail to take into
account upgradient sources of TCE, and Defendant further argues that the Court cannot
determine who is and is not in the putative class based on this definition because the class
can only be determined at the conclusion of the proceedings.
The Court concludes that the proposed class is sufficiently ascertainable. The
issues flagged by Defendant are issues to be determined after the class is certified. First,
the questions of whether upgradient sources contributed to the presence of TCE, and in
what amount, do not impact class certification. Plaintiffs present sufficient preliminary
evidence that GMI was at least a cause of the TCE groundwater plume as identified, if
not a substantial cause.
Second, contrary to Defendant’s arguments, a geographical boundary-delineated
class does in fact allow the Court to identify the members of the putative class. Plaintiffs
present preliminary evidence in the form of expert testimony and a number of other
documents reflecting the basis for the proposed geographic boundaries. The boundaries
create a list of specific and identifiable potential class members. Thus, Defendant’s
concerns really relate to how many class members have valid claims and not the class’s
ascertainability; the number of class members with valid claims is an issue to be
determined after the class is certified. See, e.g., Parko v. Shell Oil Co., 739 F.3d 1083,
1085 (7th Cir. 2014) (“To require the district judge to determine whether each of the 150
members of the class has sustained an injury . . . would make the class certification
process unworkable; the process would require, in this case, 150 trials before the class
25
could be certified. The defendants are thus asking us to put the cart before the horse.
How many (if any) of the class members have a valid claim is the issue to be determined
after the class is certified.) (emphasis in original). 7 Thus, the Court concludes that the
class is ascertainable.
D.
Rule 23(b) Requirements
1.
Rule 23(b)(1)
Plaintiffs appear to claim that the class can be certified under any and all of the
Rule 23(b) mechanisms. Under Rule 23(b)(1)(A), a class may be certified if “prosecuting
separate actions by or against individual class members would create a risk of . . .
inconsistent or varying adjudications with respect to individual class members that would
establish incompatible standards of conduct for the party opposing the class.” Fed. R.
Civ. P. 23(b)(1)(A). This means that the court must find that individual lawsuits would
create the possibility of establishing “incompatible standards of conduct” for GMI. See
Brown v. Wells Fargo & Co., 284 F.R.D. at 446 (citing Reynolds v. Nat’l Football
League, 584 F.2d 280, 283 (8th Cir. 1978)).
Here, there is no such risk. Even if each class member brought separate lawsuits
and different injunctive relief was ordered in each case, GMI would be able to implement
different relief for each plaintiff without issue. Further, the class members are seeking
the same injunctive relief—full remediation, which shows that there is no risk of
inconsistent adjudication. See, e.g., Baer v. G&T Trucking Co., Civ. No. 03-3460, 2005
7
While the Court finds the class generally ascertainable, the Court also notes that
Plaintiffs will have to limit the class to a specific time frame with respect to ownership.
26
WL 563107, at *4 (D. Minn. Mar. 1, 2005) (citations omitted) (declining to certify under
Rule 23(b)(1) for a proposed class of truck operators alleging discrimination and seeking
the same relief). Similarly, individual adjudication would not, as a practical matter, “be
dispositive of the interests of the other members not parties to the individual
adjudications or . . . substantially impair or impede their ability to protect their interests”
under Rule 23(b)(1)(B). Therefore, Rule 23(b)(1) certification is inappropriate and the
Court declines to certify the class under Rule 23(b)(1).
2.
Rule 23(b)(2)
For certification under Rule 23(b)(2), a defendant must have “acted or refused to
act on grounds that apply generally 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). Class claims under Rule 23(b)(2) must be cohesive. In re St. Jude
Med., Inc., 425 F.3d 1116, 1121 (8th Cir. 2005). Cohesiveness is particularly important
for a Rule 23(b)(2) class because, “unlike Rule 23(b)(3), there is no provision for
unnamed class members to opt out of the litigation.” Avritt v. Reliastar Life Ins. Co., 615
F.3d 1023, 1035 (8th Cir. 2010) (citing In re St. Jude, 425 F.3d at 1121).
Defendant argues that class certification under Rule 23(b)(2) is inappropriate
because GMI cannot do anything to benefit the entire putative class. Specifically, GMI
asserts that because it has already installed VMSs, any additional relief would be highly
individualized. GMI further contends that the TCE levels will need to be determined for
each property and will need to be customized for each home and its inhabitants. The
27
Court disagrees and concludes that certification under Rule 23(b)(2) is appropriate in this
case.
First, certification under Rule 23(b)(2) is appropriate because Plaintiffs seek
primarily declaratory or injunctive relief. Avritt, 615 F.3d at 1035 (citing In re St. Jude,
425 F.3d at 1121) (“Class certification under Rule 23(b)(2) is proper only when the
primary relief sought is declaratory or injunctive.”). Here, Plaintiffs seek the following
relief, which is primarily declaratory or injunctive: (1) a determination that GMI is liable
to owners of the properties in the defined Class Area; and (2) relief in the form of
comprehensive remediation.
Second, whether or not Plaintiffs will be granted the relief they seek is different
from whether the relief they seek will impact all the class as a whole—the appropriate
question for Rule 23(b)(2) certification; Defendant’s concerns are also premature. See,
e.g., Bentley, 223 F.R.D. at 486 (noting that defendants were making premature merits
arguments with respect to Rule 23(b)(2)). Plaintiffs seek a declaration as to liability.
Plaintiffs also seek relief such as the full remediation of the groundwater to appropriate
levels, class-wide VMSs, and other area-wide remedial efforts. If, for example, ordered
relief includes class-wide VMSs, the fact that some homes already have VMSs does not
change the effect of a determination that all homes in the class area must have them—a
determination that impacts the class as a whole. See ConocoPhillips, 298 F.R.D. at 585
(citation omitted) (“It is sufficient under Rule 23(b)(2) if class members complain of a
pattern or practice that is generally applicable to the class as a whole. Even if some class
members have not been injured by the challenged practice, a class may nevertheless be
28
appropriate.”); see also DeBoer, 64 F.3d at 1173-75 (granting certification under
Rule 23(b)(2) where the defendant’s liability to the class turned on the resolution of a
single question that applied to uniformly to the entire class). Thus, the Court concludes
that certification under Rule 23(b)(2) is appropriate in this case. 8
3.
Rule 23(b)(3) Requirements
Under Rule 23(b)(3), a court must find that “questions of law or fact common to
class members predominate over any questions affecting only individual members” in
order to certify a class. Fed. R. Civ. P. 23(b)(3). When considering the facts of a given
case, “a claim will meet the predominance requirement when generalized evidence
proves or disproves the elements of the claim on a class-wide basis, because such proof
obviates the need to examine each class member’s individual position.” Buetow v. A.L.S.
Enters., Inc., 259 F.R.D. 187, 190 (D. Minn. 2009) (citation and quotations omitted).
Rule 23(b)(3) further requires the court to find 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 rule provides four nonexclusive factors regarding superiority:
(A) the class members’ interests in individually controlling the prosecution
or defense of separate actions; (B) the extent and nature of any litigation
concerning the controversy already begun by or against class members; (C)
the desirability or undesirability of concentrating the litigation of the claims
in the particular forum; and (D) the likely difficulties in managing a class
action.
Id.
8
The Court agrees with Defendants that certification of monetary relief claims
under Rule 23(b)(2) is improper under Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541,
2557 (2011). Thus, the Court addresses its hybrid certification approach below.
29
Defendant argues that neither the predominance nor the superiority requirement
have been met in this case because individual liability-related issues overwhelm any
common issues. Defendant points to an extensive list of allegedly “individual issues”
that bear on contamination. (See Doc. No. 117 at 35.) For example, Defendant argues
whether and to what extent the groundwater beneath any given property is contaminated
is individualized. The Court disagrees.
As Plaintiffs argue, the key issues of fact and law proposed for class treatment can
be addressed through common proof. 9 Although there are a number of individualized
issues, they do not predominate over the common issues for those questions for which
certification is sought. Defendant’s liability here is based on its actions relating to its
release of certain chemicals at a single source, into a geographically limited area, in the
Como neighborhood in Minneapolis, and in the form of a single plume. See, e.g.,
Bentley, 223 F.R.D. at 475, 486-87; cf. MTBE Prods. Liab. Litig., 209 F.R.D. at 350
(finding that certification was inappropriate in part because there was no single incident,
but rather contamination via pipelines that occurred over many years and across four
states, and involving many defendants and third parties) (emphasis added); cf. also Henke
v. Arco Midcon, LLC, Civ. No. 10-86, 2014 WL 982777, at *15-16 (E.D. Mo. Mar. 12,
2014) (same with respect to contamination over “hundreds of different properties in five
counties, spanning over a hundred miles”). The GMI site is alleged to be at least the
substantially dominant source of contamination in the area. The questions to be certified
9
Although Plaintiffs fail to even address Rule 23(b)(3) certification in their reply
brief, they indicate their intent to seek certification under Rule 23(b)(3) in their opening
brief in support of class certification.
30
focus on whether Defendant caused contamination of the area surrounding a single dump
site, whether its actions violated the law, and thus whether Defendant is liable for
contamination. See, e.g., Canata v. Forest Preserve Dist. of Du Page Cnty., Civ.
No. 06-2196 (N.D. Ill. Oct. 11, 2006) (“the common issues concerning property damage
resulting from the disposition of hazardous substances into the environment will
predominate these proceedings”). Plaintiffs point to a number of pieces of evidence in
support of their contentions. For example, Plaintiffs refer to Defendant’s past letters and
past remediation, state and federal determinations, and expert analysis on the subject of
Defendant’s contamination. Moreover, the existence of certain individualized issues,
particularly with respect to damages, does not necessarily preclude certification. See
Gates, 265 F.R.D. at 233; see also Buetow, 259 F.R.D. at 192 (“The fact that damages
will need to be assessed on an individualized basis does not, in and of itself, require the
denial of a class certification motion.”). The individualized issues must predominate over
the common ones, and they do not here. Thus, the predominance requirement has been
met. 10
Additionally, in light of the relevant considerations, the Court also concludes that
a class action is the superior method for adjudicating these claims. There are no class
members with separate litigation on these issues. Also, manageability for the narrow
10
Defendant further contends that Plaintiffs’ reliance on Mejdrech, 319 F.3d 910
(7th Cir. 2003), is misplaced. Defendant asserts that Mejdrech required the following for
certification to be appropriate: (1) a single source of contamination; and (2) drinking
water contamination. However, contrary to Defendant’s arguments, that class was not
only certified on those two narrow requirements. See id. And, of course, Mejdrech is not
controlling here.
31
issues certified is not a concern. Thus, the Court concludes that certification under
Rule 23(b)(3) is appropriate in this case. However, in light of the Court’s decision below
with respect to hybrid certification, the Court anticipates that certification under
Rule 23(b)(3) will have to be further addressed later in the proceedings.
E.
Hybrid Certification
The Court further concludes that hybrid certification is suited to this case. A
hybrid class action bifurcates the action into two phases: the first phase addresses the
issue of liability under Rule 23(b)(2); and the second phase addresses the damages issue
under the procedure for Rule 23(b)(3) once liability is determined to exist. See, e.g.,
Beckmann v. CBS, Inc., 192 F.R.D. 608, 615 (D. Minn. 2000); see also Mathers v.
Northshore Mining Co., 217 F.R.D. 474, 487 (D. Minn. 2003); NEWBERG ON CLASS
ACTIONS, VOL. 2 at § 4:38 (5th ed. 2012) (describing “hybrid class actions” as used by
courts when plaintiffs seek both injunctive relief and monetary damages).
F.
Article III Standing and Seventh Amendment
According to Defendant, if the Court certifies this class, certification will be
contrary to Article III and Seventh Amendment principles. First, Defendant asserts that
in the Eighth Circuit, each class member must have standing under Article III. Defendant
contends that, here, members of the putative class lack standing because they have not
suffered any injury. According to Defendant, mere contamination beneath the home is
not an injury in and of itself. The Court disagrees.
Indeed, Plaintiffs must demonstrate that they have suffered an injury in fact in
order to have standing, and that standing is equally required for class actions. Avritt, 615
32
F.3d at 1034. And, “a class cannot be certified if it contains members who lack
standing.” Id. (citation and quotation omitted). However, “courts do not require that
each member of a class submit evidence of personal standing.” Id. Instead, the class
must be defined in such a way that members in it would have standing. Id. Plaintiffs
here allege that all houses in the Class Area are contaminated and that all members have
been injured by that contamination. Plaintiffs present evidence that TCE is a carcinogen
and that the entire area will need to be remediated. This is sufficient to show standing,
and anything more is a merits issue to be determined by the jury.
Second, Defendant argues that a Court cannot reexamine any fact issues already
determined by a jury under the Seventh Amendment. Defendant contends that if the
Court bifurcates certain issues, particularly as they relate to individual properties, it will
be requiring violation of this Seventh Amendment principle. Defendant cites In re
Rhone-Poulenc Rorer, Inc., 51 F.3d 1293 (7th Cir. 1995), which held that because a first
jury would not determine liability, bifurcation would result in reexamination of that
jury’s findings to make a final determination as to all issues pending against defendants.
Here, however, as currently proposed, all issues of liability would be addressed in
the primary trial, and only potentially individualized damages issues would be
determined in the second phase of proceedings. Thus, there would be no violation of
Seventh Amendment principles with the current bifurcated structure.
33
CONCLUSION
The Court concludes that a class action is appropriate in this case based on its
broad discretion and therefore certifies the class as proposed. Defendant’s motions
relating to Dr. Everett and Dr. Ozonoff are denied at this stage in the proceedings.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1.
Plaintiffs Amended Motion to Certify Class (Doc. No. [93]) is GRANTED
and the class as proposed is certified, subject to the explicit identification of the
beginning and ending dates of liability.
2.
The class definition must explicitly exclude individuals who have a
physical injury as a result of Defendant’s conduct. Plaintiffs reserve the right to maintain
later actions for personal injuries.
3.
Future individual claims by class members for bodily injury or medical
monitoring are not precluded if they could not have been brought at this time.
4.
Defendant General Mills, Inc.’s Motion to Exclude Expert Testimony and
Opinions of Dr. David Ozonoff (Doc. No. [119]) is GRANTED IN PART and
DENIED IN PART as follows:
a.
The Court declines to exclude Dr. Ozonoff’s opinions relating
to environmental contamination in the proposed Class Area and the public
health risk to the population in the proposed Class Area, but does exclude
Dr. Ozonoff’s opinions relating to the real estate market.
34
5.
Defendant General Mills, Inc.’s Motion to Exclude Expert Testimony and
Opinions of Dr. Lorne G. Everett (Doc. No. [124]) is DENIED.
Dated: February 27, 2015
s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge
35
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