Wunderlich et al v. ConocoPhillips Pipe Line Company

Filing 72

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs Motion for Class Certification 47 is GRANTED in part and DENIED in part. IT IS FURTHER ORDERED that the Court certifies a property damage class of: All persons who currently own property within a 0.25 mile radius of 16062 N. State Route 94 in West Alton, Missouri. IT IS FURTHER ORDERED that Defendants Motions to Exclude Opinions of Dr. Richard Parent 35 and Dr. Patrick Agostino 58 are DENIED without prejudice. IT IS FURTHER OR DERED that Plaintiffs Bruce Smith, JoAnne Smith, Walter Wunderlich and Victoria Wunderlich are appointed as class representatives and The Simon Law Firm, P.C., and Campbell Law, LLC are appointed as lead counsel for the Class. Signed by District Judge John A. Ross on 3/31/14. (KXS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

BRUCE SMITH, JOANNE SMITH,
WALTER WUNDERLICH and
VICTORIA WUNDERLICH,
Plaintiffs,
v.
CONOCOPHILLIPS PIPE LINE
COMPANY,
Defendant.

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Case No. 4:11-CV-2040-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion for Class Certification (Doc. No. 47)
and Defendant’s Motions to Exclude Opinions of Dr. Richard Parent (Doc. No. 35) and Dr.
Patrick Agostino. (Doc. No. 58) The motions are fully briefed and ready for disposition. By
agreement of the parties, the motions were taken together and a hearing was held on October 3,
2013. On October 28, 2013, Defendant filed additional supplemental authority in support of its
motions to exclude testimony of Dr. Agostino and in opposition to class certification. (Doc. No.
71) For the following reasons, Plaintiff’s motion for class certification will be granted in part and
denied in part, and Defendant’s motions to exclude expert opinions will be denied.
I.Background1
Plaintiffs bring this putative class action for injunctive relief and damages resulting from
petroleum contamination from a leak in a pipeline system now owned by Defendant dating back

1

The facts are taken from Plaintiffs’ complaint, as well as the other evidence submitted
by the parties in briefing the motion for class certification.
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to the 1960's. In May 2002, Defendant was notified of gasoline vapors in the basement of a
residence at 16062 North State Route 94 in West Alton, Missouri, owned by Don and Dana
Ellebracht. The pipeline system is adjacent to the Ellebracht property. Groundwater samples
collected by Defendant on and around the Ellebracht property in June 2002 tested positive for
benzene and methyl-t-butyl ether (MTBE). Thereafter, Defendant began supplying bottled
drinking water to residents in West Alton. Defendant subsequently purchased the Ellebrachts’
property, along with the properties of two neighboring families, the Tomlins and the Cowans,
and demolished the homes in 2006. As part of a remediation plan, 4,000 yards of soil in the area
were removed in 2007. The property is now surrounded by a chain-link fence and signs are
posted restricting entry to authorized personnel. In 2009, the pipeline was taken out of service.
Plaintiff property owners allege that as a result of the leak, they have been exposed to
byproducts of refined petroleum products in their water, including benzene, toluene,
ethylbenzene and xylene (BTEX) and MTBE, that Defendant has failed and continues to fail to
remediate the leak, and that contaminants remain in the soil and water, posing a health risk to
surrounding property owners and diminishing property values. (First Amended Class Action
Complaint (FAC), Doc. No. 21, ¶¶ 10-11, 15, 17-22)
Plaintiffs seek to certify a property damage class under Fed.R.Civ.P. 23(b)(2) and (3) and
a medical monitoring class under Fed.R.Civ.P. 23(b)(3). Defendant opposes certification on the
grounds that Plaintiffs cannot sufficiently establish that there are enough potential plaintiffs and
fail to meet the other requirements of Rule 23(a) and (b). In addition, Defendant challenges
Plaintiffs’ proposed class definitions as overly broad.
II. Legal Standard

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“In determining the propriety of a class action, the question is not whether the plaintiff or
plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the
requirements of Rule 23 are met.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974).
Although “it may be necessary for the court to probe behind the pleadings before coming to rest
on the certification question,” a court has no “authority to conduct a preliminary inquiry into the
merits of a suit in order to determine whether it may be maintained as a class action.” General
Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 161 (1982).
In order for this action to be maintained as a class action, Plaintiffs must satisfy the four
requirements of Rule 23(a), often referred to as numerosity, commonality, typicality, and
adequacy of representation, as well as one of the requirements of Rule 23(b). Glen v. Fairway
Independent Mortg. Corp., 265 F.R.D. 474, 478 (E.D. Mo 2010). Although the court has broad
discretion in determining whether to certify a class, in close cases courts should err in favor of
certification because the class can be modified as the case progresses. In re Aquila ERISA
Litigation, 237 F.R.D. 202, 207 (W.D.Mo. 2006) (citing In re Control Data Corp. Securities
Litigation, 116 F.R.D. 216, 219 (D.Minn.1986)).
III. Daubert motions
In support of their motion for class certification, Plaintiffs submit the reports and
testimony of their experts, geologist Patrick Agostino, Ph.D. and toxicologist Richard Parent,
M.D. Plaintiffs retained Dr. Agostino to opine on the risk posed by pipeline releases, appropriate
testing required to delineate the contamination, the areal and vertical distribution of
hydrocarbons in soils and groundwater, and the persistence of petroleum releases in the
subsurface environment. (Agostino Report, Doc. No. 59-1, p. 6) He concludes that the original
plume resulting from the leak was larger in areal extent than the plume mapped in 2002, that the
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leaded gasoline and diesel continue to contaminate soil and groundwater and remain a threat to
the drinking water supply, and that a more aggressive remediation plan is required in West Alton
to remove the free product and remediate the plume. (Id., pp. 15-17)
Plaintiffs retained Dr. Parent to opine on the relationship between general exposure to
benzene and lead and the need for medical monitoring. He opines that “in consideration of the
fact that the Ellebracht neighbors are assumed to have been exposed to both benzene and lead,
that they should be monitored for early effects which may lead to leukemia from benzene or the
development of behavioral anomalies and early dementia among other conditions described
herein as a result of early exposure to lead.” (Parent Report, Doc. No. 36-1, pp. 7-8)
Defendants move the Court to exclude the opinions of both Dr. Agostino and Dr. Parent
or, in the alternative, for a full Daubert hearing on the issue of the admissibility of their
testimony.
As a threshold matter, the parties disagree on the extent of the Daubert analysis at the
class certification stage.2 Defendant urges the Court to apply a rigorous Daubert analysis
following the Seventh Circuit’s approach in Messner v. Northstone Univ. Healthsystem, 669
F.3d 802, 814 (7th Cir. 2012), when considering whether Dr. Parent’s and Dr. Agostino’s

2

There is disagreement among the circuit courts as to whether expert disputes related to
class certification must be resolved before the court can certify a class. The Seventh and
Eleventh Circuits have either explicitly held or suggested that Daubert is applicable at the class
certification stage. See, Am. Honda Motor Co. v. Allen, 600 F.3d 813, 815-16 (7th Cir. 2010);
Sher v. Raytheon Co., 419 Fed.Appx. 887, 890 (11th Cir. 2011). The Eighth Circuit has declined
to adopt the formal requirements of Daubert. See, In re Zurn Pex Plumbing Prods. Liab. Litig. v.
Zurn Pex, 644 F.3d 604, 611 (8th Cir. 2011). The Ninth Circuit concluded that Daubert did not
apply to expert testimony at the certification stage of class action proceedings. Dukes v. WalMart Stores, Inc., 603 F.3d 571, 602 n.22 (9th Cir. 2010). In his majority opinion in Wal-Mart
Stores, Inc. v. Dukes, 131 S.Ct. 2541, Justice Scalia noted, albeit in dictum, that the Ninth
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opinions may be used to support Plaintiffs’ request for class certification. In Messner, the court
ruled that a full Daubert hearing and analysis is necessary on the issue of admissibility of expert
opinions if the opinion is “critical” to class certification. Plaintiffs on the other hand argue that
Defendant’s request for a full Daubert hearing as to the admissibility of their experts’ testimony
is premature, relying on In re Zurn Pex Plumbing Prods. Liab. Litig. v. Zurn Pex, 644 F.3d 604
(8th Cir. 2011). In Zurn Pex, the Eighth Circuit took the middle ground, holding that expert
disputes “concerning the factual setting of the case” should be resolved at the class certification
stage 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 for the
class.” Id. at 611 (quoting Blades v. Monsanto Co., 400 F.3d 562, 567 (8th Cir. 2005)).
Because the Court is bound to follow the precedents established by the Eighth Circuit,
see Jay Packaging Group, Inc. v. Mark Andy, Inc., 2011 WL 208947, at *1 (E.D. Mo. Jan. 21,
2011) (citing Hood v. United States, 342 F.3d 861, 864 (8th Cir. 2003)), it need not determine at
this stage whether Plaintiffs’ experts’ opinions will ultimately be admissible at trial. Zurn Pex,
644 F.3d at 613-14. For purposes of Plaintiffs’ motion, the Court must simply determine to its
satisfaction whether Plaintiffs’ experts’ testimony establish a Rule 23 requirement. Thus,
Defendant’s motions to exclude the opinions of Dr. Parent and Dr. Agostino will be denied.
IV. Motion for Class Certification
A. Plaintiffs’ proposed class definitions
Before a proposed class may be certified, plaintiff must define it. “At a minimum, the
description must be ‘sufficiently definite that it is administratively feasible for the court to

Circuit’s conclusion was likely erroneous, but separate and apart from whether the expert
testimony itself advanced the respondents’ case.
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determine whether a particular individual is a member.’” Burkhead v. Louisville Gas & Elec.
Co., 250 F.R.D. 287, 291 (W.D.Ky. 2008) (quoting 7A Charles Alan Wright, Arthur R. Miller &
Mary Kay Kane, Federal Practice & Procedure § 1760 (1986). See also, Lindsay Transmission,
LLC v. Office Depot, Inc., 2013 WL 275568, at *3 (E.D. Mo. Jan. 24, 2013 (“[T]he plaintiff has
the burden of showing ‘that the class is indeed identifiable as a class.’ ”) (quoting Oshana v.
Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006)). Here, Plaintiffs define the property damage
class as “all persons who currently own property within a 0.25 mile radius of 16062 N. State
Route 94 in West Alton, Missouri,” and the medical monitoring class as “all persons who reside
on a property within a 0.25 mile radius of 16062 N. State Route 94 in West Alton, Missouri and
all people who resided in said properties since 2002.”3 Defendant challenges Plaintiffs' proposed
class definitions as overbroad because they fail to require each plaintiff to have actually been
exposed to contamination from the pipeline leak, or to demonstrate that their properties were
actually impacted by the leak. (Mem. in Opp., Doc. No. 62, pp. 25-27)
When a plaintiff defines a class in geographic terms, courts often look for scientific or
objective evidence that ties the spread of contamination to the proposed class boundaries.
Burkhead, 250 F.R.D. at 291. See, e.g., Boggs v. Divested Atomic Corp., 141 F.R.D. 58, 61-62
(S.D.Ohio 1991) (certifying class where expert testimony about level of exposure up to
geographical boundary established “reasonable relationship”). See also, Leib v. Rex Energy
Operation Corp., 2008 WL 5377792 (S.D.Ill Dec. 19, 2008); LaBauve v. Olin Corp., 231 F.R.D.
632 (S.D.Ala. 2005). Conversely, where plaintiffs fail to produce evidence linking the proposed
boundary to the environmental hazard, courts have denied certification. See, e.g., Burkhead, 250

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Plaintiffs initially sought certification of a class residing within a 1.1 mile site radius,
but subsequently amended their class definitions to a smaller geographic area. (Doc. No. 52)
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F.R.D. at 293-94 (concluding there was an insufficient evidentiary relationship where the class
was defined as individuals residing within a two mile radius of plant but there was no evidence
that contaminants might have spread in all directions from plant for a distance of up to two
miles). See also, Duffin v. Exelon Corp., 2007 WL 845336, at *3 (N.D.Ill. Mar. 19, 2007);
Daigle v. Shell Oil Co., 133 F.R.D. 600, 602-03 (D.Colo. Dec. 10, 1990).
At this stage Plaintiffs are not required to adduce definitive evidence about the extent and
scope of the contamination. However, in order for the Court to conclude that there is a
reasonable relationship between the pipeline leak and the proposed class area, Plaintiffs need
some evidence that contamination was present in the class area. Id. This is not a merits issue.
Kemblesville HHMO Center, LLC v. Landhope Realty Company, 2011 WL 3240779, at *5
(E.D.Pa. July 28, 2011) (citing Duffin v Exelon Corp., 2007 WL 845336 (N.D. Ill. Mar. 19,
2007) (expressly distinguishing between a determination that property damage had occurred (a
merits issue) and a determination that properties in the class area were even potentially
contaminated).
Plaintiffs assert the 0.25 mile radius is based on the outer extent where petroleum
contaminants have been found in either soil or groundwater since 2002. (Mem. in Supp., Doc.
No. 51, p. 18) They emphasize their conservative approach to defining the classes, even
amending their original boundary from 1.1 miles to 0.25 miles. (Id.) To support their class
boundary, Plaintiffs submit the results of three drinking water tests performed in 2011 (Doc.
Nos. 51-45, -46, and -47) and the testimony of their expert, geologist Patrick Agostino, regarding
the extent and scope of the contamination. (Agostino Report, Doc. No. 59-1)
In its opposition to class certification, Defendant argues Plaintiffs have no scientific
evidence that the 1960's pipeline leak created a hydrocarbon plume larger than 250 feet, let alone
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the 0.25 mile radius of their proposed class boundary. The drinking water tests cited by
Plaintiffs, involving 11 properties within the proposed class area, came back clean with respect
to any potential contamination (Def.’s Mem. in Opp., Doc. No. 62, pp. 3-4), and Dr. Agostino’s
opinion that the original contaminant plume was “considerably larger” than it is now, and “most
likely” spread laterally to the north for a “long distance” (Agostino Report, Doc. No. 59-1, p.
13), is speculative and lacking a scientific basis.4 (Mem. in Opp., pp. 9-10)
Plaintiffs reply that while the soil and groundwater sampling data is limited, such data
clearly shows that petroleum contaminants reach at least 0.25 miles from the Ellebracht property.
(Reply, Doc. No. 66, pp. 6-7) “Light non-aqueous phase liquid (“LNAPL”) or free product liquid
samples found by Defendant in monitoring wells on the West Alton site and analyzed by Battelle
laboratories in July-August 2002 contained diesel fuel and leaded gasoline, both products
reportedly transported in the pipeline. (Agostino Report, Doc. No. 59-1, pp. 2, 6; Agostino
Depo., Doc. No. 65-3, 72:13-21; 73:17-25; 183:15-185:12) Testing done in August 2003 by the
Missouri Department of Natural Resources shows the presence of BTEX in the area.5 (Doc. No.
68) In addition, Defendant’s own testing shows an increase in hydrocarbon contamination at the
monitoring wells within the remediation site as recently as March 2010. (Doc. No. 59-1, pp. 14,
20) Moreover, the experts for both sides concede that contamination shifts continually. Plaintiffs

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As discussed infra, Defendant has moved to exclude the opinions of Dr. Agostino as
speculative and lacking any scientific basis. At the class certification stage, however, the Court
need not make a definitive determination on the admissibility of expert testimony. Zurn Pex, 644
F.3d at 613-14.
5
Although the contaminants were not detected above the laboratory reporting limits, it is
not appropriate for the Court to determine the level of BTEX and/or lead level that constitutes
“contamination,” or to determine what contamination levels constitute property damage for the
purposes of this motion. Kemblesville HHMO Center, 2011 WL 3240779, at *7; Duffin, 2007
WL 845336, at *5.
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contend that based on the testing to date, it is not possible to rule out the possibility that pockets
of contamination exist, even within areas that Defendant claims are “clean.” (Reply, Doc. No.
66, p. 7) On this record the Court finds sufficient preliminary evidence of contamination to
support Plaintiffs’ property class definition. See Cook v. Rockwell Intern. Corp., 151 F.R.D. 378,
383-84 (D. Colo. 1993).
With respect to Plaintiffs’ medical monitoring class definition, however, Plaintiffs have
offered no evidence of actual exposure. Meyer ex rel. Coplin v. Fluor Corp., 220 S.W.3d 712,
718 (Mo. 2007) (entitlement to the costs of medical monitoring requires plaintiff to show that
exposure led to an increased risk of developing a particular disease and that medical monitoring
is reasonably necessary for early detection and treatment). Plaintiffs’ expert Dr. Parent testified
about the relationship between general exposure to benzene and lead and the need for medical
monitoring, but admitted in his deposition that he was not offering an opinion about specific
exposure in this case. (Parent Depo., Doc. No. 36-2, 192:18-193:11) Compare, Cook, 151 F.R.D.
378, where a medical monitoring class area was defined with reference to geographical
representations of exposure or dose levels which corresponded to average minimal cumulative
doses received by segments of the exposed population. Without some evidence of actual
exposure to benzene and/or lead, Plaintiffs’ definition of the medical monitoring class is not
sufficiently definite to permit analysis of the Rule 23 factors governing class certification.
C. Rule 23(a)
(1) Numerosity
Rule 23(a)(1) requires that “the class is so numerous that joinder of all members is
impracticable.” “No single magic number exists satisfying the numerosity requirement.” Behrend
v. Comcast Corp., 245 F.R.D. 195, 202 (E.D. Pa. 2007) (internal citation omitted). Plaintiffs
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represent that there are approximately 61 properties within the geographically defined class area,
based on the number of residences and property sales since 2002. (Mem. in Supp., Doc. No. 51,
p. 38) Defendant argues there is no evidence that more than five parcels - three of which are now
owned by Defendant and none of which are inhabited - were ever impacted by the pipeline leak.
(Mem. in Opp., Doc. No. 62, pp. 11-12)
As discussed above, the Court finds Plaintiffs have provided some evidence that
contamination is present in the proposed class area. Again, at this stage Plaintiffs are not required
to adduce definitive evidence about the extent and scope of the contamination. Moreover,
whether Plaintiffs’ properties were in fact contaminated is a merits argument not to be
considered on a motion for certification. Bentley v. Honeywell Intern., Inc., 223 F.R.D. 471, 477
(S.D. Ohio 2004) (citing Eisen, 417 U.S. at 178).
(2) Commonality
The commonality determination requires a finding that “there are questions of law or fact
common to the class.” Rule 23(a)(2). This rule does not require that every question be common
to the class, but merely that one or more significant questions of law or fact are common to the
class. Hopkins v. Kansas Teachers Community Credit Union, 265 F.R.D. 483 (W.D.Mo. 2010)
(quoting TBK Partners v. Chomeau, 104 F.R.D. 127, 130 (E.D.Mo.1985). Commonality is met if
the class members' claims “derive from a ‘common nucleus of operative facts.’ ” Id. (citing
Cohen v. Uniroyal, Inc., 77 F.R.D. 685, 690 (E.D.Pa.1977)). A common nucleus of operative
fact is usually found where the defendant has engaged in some standardized conduct towards
members of the proposed class. Mejdreck v. The Lockformer Co., 2002 WL 1838141, at *3
(N.D.Ill. Aug. 12, 2002). Factual variations between class members’ claims will not preclude

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certification. Id. Plaintiffs have identified a number of common questions of law and fact,
including:
Whether the contamination identified emanated from the subject pipeline;
Whether unremediated leaks from the subject pipeline remain in soil and groundwater;
What knowledge Defendant had about petroleum leaks from the subject pipeline;
Whether Defendant knew that unremediated petroleum leaks pose an environmental risk;
Whether Defendant would have had documentation if assessment and remediation had
occurred with respect to these old petroleum leaks;
Whether Defendant has a policy in place to respond to old petroleum leaks;
Whether Defendant has a duty to evaluate and assess whether old petroleum leaks remain
in the soil and groundwater;
Whether Defendant has a duty to completely remediate old petroleum leaks that remain;
Whether Defendant’s activities are sufficiently remediating the petroleum contamination;
Whether the type of damages caused to Class Members’ property by the leak and
migration of petroleum products emanated from the subject pipeline;
Whether Defendant has breached their ongoing duty to clean up all spills and leaks from
the subject pipeline;
Whether Class Members are entitled to injunctive relief requiring Defendant to fully
remediate the remaining contamination;
Whether Class Members are entitled to damages for loss of property value; and
Whether Defendant’s conduct rises to the level of willfulness so as to justify punitive
damages.
(Mem. in Supp., pp. 38-39)

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Defendant argues there is no common nexus of law or fact between class members
because the classes are not defined to include property that is actually contaminated. (Mem. in
Opp., p. 13) Again, Defendant is improperly arguing the merits of the case. Plaintiffs allege
Defendant allowed petroleum byproducts to contaminate the soil and groundwater in the area
where all proposed class members live and have failed to remediate the contamination. It is this
common course of conduct which allegedly caused the injury to all of the Plaintiffs. Therefore,
Plaintiffs have established commonality.
(3) Typicality
The Eighth Circuit defines typicality as requiring “a demonstration that there are other
members of the class who have the same or similar grievances as the plaintiff.” Henke v. Arco
Midcon, L.L.C., 2014 WL 982777, at *9 (E.D.Mo. March 12, 2014) (citing Chaffin v. Rheem
Mfg. Co., 904 F.2d 1269 (8th Cir.1990)). Typicality and commonality are closely related and a
finding of one generally compels a finding of the other. Canady v. Allstate Insurance Co., 1997
WL 33384270, at *6 (W.D. Mo. Jun. 19, 1997).
Plaintiffs contend this requirement is met because they, like the class members, own
property within the class boundary. They continue to be concerned about the quality of their well
water and have suffered a decrease in their property values. The relief Plaintiffs seek is identical
to the relief sought for the class. (Mem. in Supp., p. 40) Here, the central event in all of the
proposed class members’ claims is the leak in the pipeline owned by Defendant. The class
members’ factual and legal theories are based on petroleum contamination resulting from the
leak. Defendant argues that Plaintiffs’ claims are not typical because they have no evidence that
their properties are actually contaminated. But factual inconsistences between the class are not
enough to defeat typicality. See Duffin, 2007 WL 845336, at *6 (typicality met where class
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members’ complaints arose from defendant’s unauthorized release of water containing hazardous
tritium, even though evidence showed many properties had little or no contamination). See also,
Ludwig v. Pilkington North America, Inc., 2003 WL 22478842, at *3 (N.D.Ill. Nov. 4, 2003).
Plaintiffs have demonstrated typicality.
(4) Adequacy
“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 class representatives will vigorously
prosecute the interests of the class through qualified counsel.” Canady, 1997 WL 33384270, at
*7 (quoting Paxton v. Union National Bank, 688 F.2d 552, 562–63 (8th Cir.1982)). “The
appropriate test for determining whether the interests of the class representatives and other
members of the class are antagonistic is whether or not those interests may be deemed
coextensive; a total identity of interests is not required.” Id. “ ‘Coextensiveness’ has been defined
to mean that the plaintiffs and the class representatives ‘share common objectives and legal or
factual positions.” ’ Id.
Plaintiffs contend this requirement is met. They state their interests are aligned with class
members’ interests and would be otherwise included in the defined classes, both for property
damages and medical monitoring. They are aware of their duties as class representatives and
have been actively involved in the litigation to date. In addition, they have retained counsel to
competently pursue this class action. (Mem. in Supp., p. 40)
In response, Defendant argues there is no evidence that either of the named Plaintiffs’
properties or drinking water is contaminated from the 1960's leak. Because Plaintiffs cannot
establish injury in fact, they do not have standing to bring their claims in this case. (Mem. in
Opp., p. 15)
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To show standing, Plaintiffs must allege they sustained “personal injury [-in-fact] fairly
traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the
requested relief.” Duffin, 2007 WL 845336, at *2-3 (quoting Johnson v. Allsteel, Inc., 259 F.3d
885, 887 (7th Cir.2001)). Plaintiffs allege their properties were contaminated by unremediated
petroleum releases from a pipeline system now owned by Defendant. (FAC, ¶¶ 46, 52)
According to Plaintiffs, the alleged contamination has interfered with the use of their property,
diminished their property values, and potentially injured their health. (FAC, ¶¶ 28, 32, 49-53)
Similar allegations have been found adequate to confer Article III standing. See, e.g., Duffin,
2007 WL 845336. Once standing is established by the named plaintiffs, there is no separate class
standing requirement “in the constitutional sense.” Id. (citing In re General Motors Corp. DexCool Prods. Liab. Litig., 2007 WL 522300, at *4 (S.D.Ill. Feb. 16, 2007)). Rather, class standing
is satisfied if plaintiffs demonstrate they meet Rule 23(a)'s requirements. Id. (citing Payton v.
County of Kane, 308 F.3d 673, 681 (7th Cir.2002); Irving Trust Co. v. Nationwide Leisure
Corp., 95 F.R.D. 51, 57 n. 6 (S.D.N.Y.1982) (“Generally, when the Rule 23(a) prerequisites are
met, there will be standing, since those prerequisites demand that the plaintiff alleged injury
resulting from a class wrong.”).
As class representatives, Plaintiffs need only show they would be entitled to relief, if
granted, not that they will be entitled to relief. Mejdreck, 2002 WL 1838141, at *5. The Court
does not need to address the merits of the case but only needs to decide whether or not Plaintiffs
can adequately represent the proposed class. Id. (Emphasis in original.) The entire class,
including the named Plaintiffs, asserts the same legal theories based on the same general nucleus
of operative facts. There is no indication Plaintiffs are antagonistic to the class or will face

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defenses inapplicable to other class members. Under these circumstances, Plaintiffs have met the
requirements of Rule 23(a)(4).
B. Rule 23(b)
1. 23(b)(2)
Class certification under Rule 23(b)(2) is appropriate “if classwide injunctive relief is
sought when the defendant ‘has acted or refused to act on grounds generally applicable to the
class.’ ” DeBoer v. Mellon Mortg. Co., 64 F.3d 1171, 1175 (8th Cir. 1995) (quoting Fed.R.Civ.P.
23(b)(2)). While class actions under Rule 23(b)(2) have no predominance or superiority
requirements, class claims must be cohesive. Barnes v. American Tobacco Co., 161 F.3d 127,
143 (3rd Cir. 1998) (“Subsection (b)(2) ‘by its terms, clearly envisions a class defined by the
homogeneity and cohesion of its members’ grievances, rights and interests.’”) (quoting Holmes
v. Continental Can Company, 706 F.2d 1144, 1155 (11th Cir. 1983)).
Here, Plaintiffs seek injunctive relief that would require Defendant to “take all steps
necessary to completely clean up the properties of the class members, ridding these properties of
any and all petroleum chemical residue originating from the underground pipeline,” and “to test
all properties [within the class area] on a regular basis for soil and water contamination.” (FAC,
¶¶ d., e.) Defendant argues Plaintiffs’ class lacks cohesiveness because most of the proposed
class members’ properties are not contaminated. Thus, class members would not benefit from
any declaratory or injunctive order. (Mem. in Opp., pp. 16-17) In response, Plaintiffs contend
that Defendant’s pattern of conduct toward the class members has been consistent in this regard contamination has been found in the area from the pipeline, yet Defendant has refused to test
other properties for contaminants or to fully remediate the area. (Reply, p. 11)

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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. Walters v. Reno, 145 F.3d
1032, 1047 (9th Cir. 1998), cert denied, 526 U.S. 1003 (1999).
2. Rule 23(b)(3)
Under subsection (b)(3), Plaintiffs must establish that the questions of law and fact
common to the class predominate over any questions affecting only individual members and that
a class action is superior to other available methods for the fair and efficient adjudication of the
controversy. Mayo v. UBS Real Estate Securities, Inc., 2011 WL 1136438, at *5 (W.D. Mo.
Mar. 25, 2011) (quoting Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623 (1997)).
Defendant argues the predominance requirement has not been met because of the highly
individualized nature of Plaintiffs’ nuisance and negligence claims, as well as the defenses to
those claims. (Mem. in Opp., pp. 18-22)
There is ample support for certifying a class action in a contamination case even though
there may be individualized issues, including issues of damages. LeClercq, 2001 WL 199840, at
*7 (citing Sterling v. Velsicol Chemical Corporation, 855 F.2d 1188, 1197 n10 (6th Cir. 1988)
(and cases cited therein)). “Where the defendant's liability can be determined on a class-wide
basis because the cause of the disaster is a single course of conduct which is identical for each of
the plaintiffs, a class action may be the best suited vehicle to resolve such a controversy.” Id. See
also, Bates v. Tenco Svcs., Inc., 132 F.R.D. 160 (D.S.C.1990) (class action was superior because
common questions including the cause of the contamination and the defendant's liability
predominated over the individual questions of proximate cause and damages for each plaintiff);
Yslava v. Hughes Aircraft Co., 845 F.Supp. 705, 713 (D.Az.1993) (common issues
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predominated because factual and legal issues relating to the defendant's liability did not differ
between the plaintiffs, and thus certification was appropriate); Boggs, 141 F.R.D. at 67 (rejecting
defendant's argument that individualized nature of plaintiffs' claims made certification improper
and finding that common issues of liability, including nature of the emissions, history of the
plant, and the kinds of remedies to address actual and future emissions “overwhelm[ed]
individualized issues”).
Here, common issues predominate, namely, whether the contamination identified
emanated from the subject pipeline, whether Defendant was thereby negligent, and whether
Defendant’s actions resulted in contamination to the properties located in West Alton. If these
claims were tried separately the amount of repetition would be great.
Further, proceeding as a class action is superior to other methods for adjudication of this
case. The proof regarding the history of the pipeline system, the leak, the impact on the soil and
groundwater, possible remedies, etc. would be identical. See Boggs, 141 F.R.D. at 67 (“[i]t
would be neither efficient nor fair to anyone, including defendants, to force multiple trials to hear
the same evidence”). The court in LeClercq explained that repetitive discovery for individual
cases on the same core issues would be wasteful for both the courts and the parties. 2001 WL
199840, at *7.
V. Conclusion
For the foregoing reasons, the motion for class certification of a property damage class
will be granted and the motion for class certification of a medical monitoring class will be
denied.
Accordingly,

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IT IS HEREBY ORDERED that Plaintiffs’ Motion for Class Certification [47] is
GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that the Court certifies a property damage class of:
All persons who currently own property within a 0.25 mile radius
of 16062 N. State Route 94 in West Alton, Missouri.
IT IS FURTHER ORDERED that Defendants’ Motions to Exclude Opinions of Dr.
Richard Parent [35] and Dr. Patrick Agostino [58] are DENIED without prejudice.
IT IS FURTHER ORDERED that Plaintiffs Bruce Smith, JoAnne Smith, Walter
Wunderlich and Victoria Wunderlich are appointed as class representatives and The Simon Law
Firm, P.C., and Campbell Law, LLC are appointed as lead counsel for the Class.
Dated this 31st day of March, 2014.

________________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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