Brown et al v. Saint-Gobain Performance Plastics Corporation et al
Filing
438
///ORDER granting in part and denying in part 255 Motion to Certify Class. The court certifies a liability class with respect to the trespass, negligence, and negligent failure to warn claims, but denies certification as to the nuisance claim. If and when liability is established, the court will proceed to the damages phase of the case. So Ordered by Judge Joseph N. Laplante.(jb)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Kevin Brown et al,
v.
Civil No. 16-cv-242-JL
Opinion No. 2023 DNH 156
Saint-Gobain Performance Plastics et al.
MEMORANDUM ORDER
The class action “predominance” and “commonality” requirements in Federal
Rule of Civil Procedure 23 are the primary focus of this motion, in which the plaintiffs
seek to represent a class of property owners whose property and household water sources
have purportedly been contaminated by the toxic emissions of a manufacturing facility in
Merrimack, New Hampshire. The named plaintiffs assert claims for trespass, nuisance,
negligence, and negligent failure to warn against two defendants: Saint-Gobain
Performance Plastics Corporation, the owner and operator of the facility since 2000, and
Gwenael Busnel, the facility’s general manager during the relevant time period.
The proposed class consists of property owners within two defined, contiguous
areas surrounding the facility, who derive their water from two allegedly contaminated
sources—private groundwater wells or the Merrimack Village District Water Works
(MVDWW) municipal water system.1 The plaintiffs alternatively propose two subclasses
of property owners in the same locations who source their water from the private wells,
1
Mot. for Class Certification (doc. no. 255-1) at 26.
on one hand, or from the MVDWW system, on the other.2 The defendants argue that
class treatment is improper because the plaintiffs’ claims present myriad individual
factual and legal issues, which are not susceptible to class-wide proof.
The court has class action jurisdiction over this case under 28 U.S.C. § 1332(d)
(diversity). After reviewing the parties’ submissions, determining the admissibility of
challenged expert opinions, and hearing oral argument and live testimony, the court
certifies the class as to liability issues under the trespass, negligence, and negligent
failure to warn claims. Saint-Gobain’s liability under these causes of action is predicated
on predominantly common issues that can be resolved jointly across the class, including
the defendants’ actions in emitting toxic chemicals and their subsequent efforts to
investigate, mitigate, and warn the potentially affected population of the emissions; the
hazardous nature of the chemicals emitted; and the geographical scope and foreseeability
of groundwater contamination.
2
Id. at 27. The plaintiffs also moved to certify a class of individuals who were exposed to
contaminated groundwater and are seeking ongoing medical monitoring. Medical monitoring
has been characterized as a tort or remedy in which plaintiffs “seek to recover the anticipated
costs of long-term diagnostic testing necessary to detect latent diseases that may develop as a
result of tortious exposure.” In re: Nat’l Hockey League Players’ Concussion Inj. Litig., 327
F.R.D. 245, 259-60 (D. Minn. July 13, 2018). On March 9, 2022, the court certified questions to
the Supreme Court of New Hampshire regarding (1) whether New Hampshire recognizes a cause
of action or remedy for medical monitoring and (2) the applicable elements of or requirements
for that claim. Doc. no. 364. The following year, on March 21, 2023, the Supreme Court
“answer[ed] the first certified question in the negative and, consequently, [did] not address the
second question.” Doc. no. 432 at 5. The court accordingly mooted the plaintiffs’ medical
monitoring claims and denied the plaintiffs’ class certification motion as to the proposed medical
monitoring class. Doc. no. 433 at 1-2.
2
The court denies certification as to the nuisance claim, however, because it
necessarily turns on individual assessments of the harm experienced by each putative
class member, making class treatment of these issues unmanageable.
Finally, the court concludes that damages issues cannot be determined on a classwide basis, since they vary based on factors including the extent of contamination
attributable to Saint-Gobain in the groundwater sources for individual property owners,
each individual’s duration of residence at the relevant property, the effects and timing of
mitigation efforts, and specific inconveniences and discomfort experienced by each class
member. Thus, the trial will be bifurcated, with the first phase focused on determining
the defendants’ liability, and the second phase addressing damages.
I.
Applicable legal standard
“The class action is ‘an exception to the usual rule that litigation is conducted by
and on behalf of the individual named parties only.’” Comcast Corp. v. Behrend, 569
U.S. 27, 33 (2013) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979)). To
obtain class certification, the plaintiffs must establish by a preponderance of the evidence
that Rule 23(a)’s four prerequisites are satisfied. See In re Nexium Antitrust Litig., 777
F.3d 9, 17, 27 (1st Cir. 2015). “Once plaintiffs have made their initial showing,
defendants have the burden of producing sufficient evidence to rebut the [plaintiffs’]
showing.” Id. Specifically, the plaintiffs must show:
(1) the [proposed] class is so numerous that joinder of all members is
impracticable;
(2) there are questions of law or fact common to the class;
3
(3) the claims or defenses of the representative parties 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.
Fed. R. Civ. P. 23(a).
Where, as here, the plaintiffs move to certify the proposed class under Rule
23(b)(3), they must also satisfy the rule’s predominance and superiority requirements.
This requires a showing that “questions of law or fact common to class members
predominate over any questions affecting only individual members, and that a class
action is superior to other available methods for fairly and efficiently adjudicating the
controversy.” Fed R. Civ. P. 23(b)(3); see also In re New Motor Vehicles Canadian Exp.
Antitrust Litig., 522 F.3d 6, 18 (1st Cir. 2008).
These rules “do[ ] not set forth a mere pleading standard. A party seeking class
certification must affirmatively demonstrate his compliance with the Rule.” Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). The court, in turn, must engage in a
“rigorous analysis,” which may involve “prob[ing] behind the pleadings.” Id. (quoting
General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 160 (1982)); see also In re
Nexium, 777 F.3d at 18. The court may consider merits questions as part of the Rule 23
analysis “to the extent—but only to the extent—that they are relevant to determining
whether the Rule 23 prerequisites for class certification are satisfied.” Amgen Inc. v.
Connecticut Ret. Plans & Tr. Funds, 568 U.S. 455, 466 (2013).
4
II.
Background
The facts are drawn from the plaintiffs’ complaint as well as the parties’ briefs on
the class certification motion and attached exhibits. Saint-Gobain has owned and
operated a manufacturing facility in Merrimack, New Hampshire since 2000. Prior to
2000, Chemfab Corporation owned and operated the facility. As part of its
manufacturing operations, the facility used ammonium perfluorooctonate (APFO), which
is a derivative of perfluorooctanioic acid (PFOA). Both APFO and PFOA are part of a
group of toxic substances known as PFAS.3 PFOA is water soluble and resistant to
environmental degradation, enabling it to travel from the air, through the soil, and then
into the groundwater.4
On March 4, 2016, the New Hampshire Department of Environmental Services
issued a press release stating that, during the prior week, “Saint-Gobain notified NHDES
that [PFOA] was detected at low levels . . . in samples taken from four water faucets
within their Merrimack facility.”5 The NHDES announced that it would be investigating
MVDWW groundwater wells, which “cumulatively serve 25,000 customers in
3
The court refers to PFOA and PFAS collectively as PFOA throughout this Order, except when
quoting other sources that refer to the substances differently. These shifts in nomenclature,
where present, do not factor into the parties’ arguments or affect the Rule 23 analysis.
See Preliminary Air Soil and Water Modeling Technical Memorandum June 2017 – revised
September 2018 (“Barr Report”) (doc. no. 246-5) at 11 (“PFOA does not readily degrade[,]” “is
deposited on the ground in proximity to the emission source[,]” and is “mobile and migrate[s] as
[a] solute[ ] in flowing groundwater”); id. at 14 (“[A]t some manufacturing facilities that make or
use PFAS compounds, air emission and subsequent deposition on nearby land surfaces has been
found to be a mechanism for PFOA to be transported to groundwater (Barton, et al, 2010).”).
4
5
Doc. no. 247-7 at 2.
5
Merrimack,” and “private wells in the vicinity of the Saint-Gobain facility” to determine
if they were contaminated with PFOA.6 The testing results form part of the record before
the court. For example, the plaintiffs entered into evidence a chart reflecting the PFOA
and PFAS detected in each of the MVDWW wells in periodic testing conducted from
2016 through 2019,7 and a link to the NHDES’ publicly available interactive “PFAS
Sampling Map,” which identifies the amount of PFOA detected in well testing at
particular locations surrounding the facility, along with the sampling date.8 This data
shows variation in the levels of PFOA contamination found at different wells within the
class areas. For example, one of the defendants’ experts, Michael Mobile, reviewed
NHDES well sampling results and found that, of “999 wells located within the proposed
class area, . . . approximately 47%[ ] did not have a reported PFOA detection equal to or
greater than 20 parts per trillion” and “approximately 78% did not have a reported PFOA
detection equal to or greater than 70 parts per trillion.”9
The NHDES confirmed that it did detect PFOA “in excess of applicable regulatory
standards for groundwater . . . near the Saint-Gobain . . . facility,” and it responded to this
discovery with a number of remedial measures.10 In April 2016, the NHDES began
6
Id.
7
See doc. no. 247.
8
NHDES PFAS Sampling Map, available at
https://nhdes.maps.arcgis.com/apps/dashboards/78fe1cb292af4cefbd49f281c43c658d; see also
2018 Affidavit of Paul DeCarolis (doc. no. 247-9) at ¶ 4.
9
2019 Expert Report of Michael Mobile (doc. no. 418-1) at 12.
10
Barr Report (doc. no. 246-5) at 10; see also doc. no. 246-20.
6
delivering bottled water to 400 properties in Merrimack and Litchfield, New Hampshire,
which were “served by private wells” and within a one-mile radius of the Saint-Gobain
facility.11 In a press release issued that month, the NHDES wrote that it “made th[e]
decision to provide the bottled water to help protect the public’s health based on data that
indicate an area of contamination of private drinking water wells.”12 According to a
sworn affidavit from the Business Manager of MVDWW, two of the six wells that supply
water to the MVDWW system were also shut down around April and May 2016 after the
discovery of “elevated levels of PFOA . . . in the well water.”13
Two years later, in 2018, Saint-Gobain entered into a consent decree with the
State, under which it agreed to pay for alternative water sources for contaminated
properties. The consent decree required Saint-Gobain to pay for the expansion of the
municipal water system to specific properties, or alternatively, to install and maintain
point-of-entry treatment system “at certain properties.”14 That same year, the NHDES
found that additional private wells were contaminated, and it instructed property owners
to decommission those wells.15 Saint-Gobain continued sampling wells for PFOA
contamination and reporting its findings to the NHDES in the following years.16
11
Doc. no. 247-10 at 2.
12
Id.
13
2018 Affidavit of Jill Lavoie (doc. no. 247-9) at ¶ 6; Barr Report (doc. no. 246-5) at 12.
14
Doc. no. 247-8 at 8.
15
See doc. no. 247-19.
16
See, e.g., December 8, 2020 Bimonthly Status Report Work Plan for Sampling Water Supply
Wells and Provision of Alternative Water (doc. no. 247-14).
7
Around this time period, Saint-Gobain hired Barr Engineering Company to
develop models to “evaluate and simulate the transport mechanisms of PFOA released by
historical air emissions at the Saint-Gobain . . . facility in Merrimack . . . that may have
resulted in the presence of PFOA in soil and groundwater in the vicinity of th[e]
facility.”17 Barr compared the simulation results to “measured PFOA concentrations in
soil and groundwater within the study area to identify areas where exceedances of
regulatory standards potentially may be associated with historical air emissions” from the
facility.18 Barr’s analysis focused on an area in Southern New Hampshire surrounding
the Merrimack facility, the boundaries of which were defined by the NHDES and closely
relate to the class geographic areas.
In order to complete this simulation, Barr used operational and emissions data
from 2004 to 2014 provided by Saint-Gobain, from which it estimated how many pounds
of PFOA were released by the facility every year from 1986 through 2014. According to
these estimates, the facility released hundreds of pounds of PFOA into the air between
1986 and 2006, and emissions dropped sizably in 2007 “primarily [as] a result of
manufacturer’s phase out.”19
Barr employed four models developed by the United States Environmental
Protection Agency or the United States Geological Services to estimate the movement of
17
Barr Report (doc. no. 246-5) at 9.
18
Id.
19
Id. at 14, 71.
8
the PFOA emissions from the air, to the ground, and below to groundwater.20 Barr used
AERMOD “for simulating dispersion and deposition of PFOA” onto the ground “from
stack emissions”; Soil Water Balance “for simulating recharge using data for
precipitation, temperature, soils, land use, and topography”; MODFLOW-NWT “for
simulating three dimensional saturated groundwater flow and one-dimensional vertical
groundwater flow through the unsaturated zone”; and MT3D-USGS “for simulating
solute transport in the saturated and unsaturated zone.”21 In short, the first two models
“generalize many ‘above-ground’ processes relevant to PFOA transport, whereas key
subsurface processes are approximated using” the latter two models.22 Further, the
MODFLOW and MT3D models produce “output that can be directly evaluated [against]
measured data,” including “measured concentration of PFOA in soils[ ] and measured
concentrations of PFOA in groundwater.”23
Barr released a preliminary report with its findings in June 2017. It revised the
report in September 2018 to correct two tables but did not otherwise amend the report or
its conclusions.24 Barr concluded that it had “successfully modeled [t]he overall pattern
and distribution” of PFOA in soil and groundwater within its study area, and it found that
the air deposition of PFOA from Saint-Gobain’s facility “may have contributed to the
20
See 2018 Expert Report of David Sullivan (doc. no. 122) at 11; Barr Report (doc. no. 246-5) at
9, 14, 68.
21
Barr Report (doc. no. 246-5) at 9.
22
2021 Expert Report of Michael Mobile (doc. no. 404-4) at 11.
23
Id.
24
Barr Report (doc. no 246-5) at 3.
9
observed PFOA in groundwater in portions of the study area located in close proximity to
the . . . facility.”25 Barr also noted in its report that “PFAS . . . were used in the
manufacture of many commercial materials for industrial, commercial, and residential
use,” and thus “[t]here are numerous other likely source of PFAS in the study area”
including car washes, landfills, junkyards, and agricultural fields.26 Barr did not analyze
the movement of PFOA from these potential, alternative sources in its study.27
A. This suit
The named plaintiffs filed a putative class action complaint against Saint-Gobain
and Busnel in state court in May 2016, and Saint-Gobain removed the case to this court
the following month. More recently, in January 2021, the plaintiffs filed a third amended
complaint, asserting claims against Saint-Gobain and Busnel for trespass, nuisance,
negligence, and negligent failure to warn, and against Saint-Gobain for Busnel’s actions,
under the theory of respondeat superior. They allege damages in the form of discomfort,
annoyance, loss of use and enjoyment of property, diminished property value, the need
for and cost of mitigating contamination, and, for private well owners, the costs
associated with switching from private wells to municipal water.28
The “proposed class consist[s] of residential property owners within defined
geographic areas” who are allegedly “impacted by” groundwater contamination related to
25
Id. at 9.
26
Id. at 9-10.
27
Id. at 9.
28
Mot. for Class Cert (doc. no. 255-1) at 25; Third Amended Compl. (doc. no. 348) at ¶¶ 1, 53.
10
PFOA emissions from the Saint-Gobain facility.29 The class includes individuals who
obtain their household water from two sources—private wells and municipal water, or the
MVDWW system. The putative class and two subclasses are defined as follows:
All persons who on or after March 4, 2016 own or owned residential properties
with private wells in the Private Well Property Owners Class Geographic Area or
residential properties in the Merrimack Village District Water Works (MVDWW)
Class Geographic Area which are supplied household water by MVDWW
(Property Damage Class).
Subclass A:
All persons who on or after March 4, 2016 own or owned residential properties
with private groundwater wells within the Private Well Class Geographic Area
(Private Well Property Owners Property Damage Subclass).
Subclass B:
All persons who on or after March 4, 2016 own or owned residential properties in
the Merrimack Village District Water Works (MVDWW) Class Geographic Area
which are supplied household water by MVDWW (MVDWW Property Owners
Property Damage Subclass).30
The plaintiffs define the MVDWW Class Geographic Area to reflect the
MVDWW service map, and they define the Private Well Class Geographic area as
follows.
In Bedford and Merrimack, the geographic area west of the Merrimack River
within three (3.0) miles of the property boundary of the Saint-Gobain Site; in
Litchfield, the Geographic area bounded by the Merrimack River on the west,
Cummings Drive on the South, extended east to the Merrimack River and west to
the Londonderry Town line, and the Londonderry Town line on the East and the
City of Manchester on the North and East, and the geographic area in Manchester
bounded by Raymond Wieczorek Drive on the North and East, and the geographic
29
Mot. for Class Cert. (doc. no. 255-1) at 25.
30
Id. at 26-27.
11
area in Manchester bounded by Raymond Wieczorek Drive on the North and is
depicted in Appendix A, Private Well Class Geographic Area Map.31
In a sworn affidavit, plaintiffs’ counsel explained that the boundaries of the Private Well
Class Geographic Area were based, at least in part, on the NHDES’ well test results,
which (as described above) catalogue the level of PFOA found in groundwater wells,
along with the address of the parcel tested and the test date.32
The plaintiffs attached maps of the Private Well Class Geographic Area and the
MVDWW Class Geographic Area (hereinafter referred to together as the class areas or
class geographic areas) to their complaint. These maps are attached as Exhibits 1 and 2
to this Order, respectively.33
Both parties submitted expert reports to support their positions. The court
previously ruled on the parties’ motions to exclude the opinions of several experts under
Federal Rule of Evidence 702, and the court deemed the opinions admissible, with some
limited exceptions.34 The opinions of the plaintiffs’ experts—which the court finds to be
relevant and sufficiently reliable to support its class certification analysis—are
summarized in brief and in pertinent part below. Relevant and reliable portions of the
defendants’ expert reports are summarized later, infra Section III.E.i.
31
Id. at 27.
32
2018 Affidavit of Paul DeCarolis (doc. no. 247-9) at ¶¶ 4-6.
33
Doc. nos. 255-2, 255-3.
34
Expert Order (doc. no. 437).
12
B. Plaintiffs’ expert witnesses on PFOA contamination
David Sullivan is a meteorologist with 45 years experience in air quality and
meteorological analysis.35 He reviewed Barr’s analysis of the airborne transport and
deposition of PFOA from the facility using the AERMOD model, and he compared the
AERMOD results with data on the concentration of PFOA in groundwater in the class
areas, which was gathered from the sampling of “hundreds of sites” from 2016 to 2018.36
As an initial matter, Sullivan opined that PFOA is “persistent in the environment,”
and, where it is present, PFOA “can be expected to remain . . . for many more years.”37
Sullivan also asserted that “[d]ispersion of PFAS emissions from the Saint-Gobain
facility in Merrimack occurs on an area-wide basis,” and is properly modeled using data
that is common to the class areas, including “emissions data, [ ] release specifications, [ ]
emissions pathways, [and] [ ] meteorological data.”38 According to Sullivan, he can
reliably estimate the “dispersion and deposition of pollutants emitted from [the] SaintGobain facility at locations throughout the class geographic area” using this common
data, but “it is neither necessary nor appropriate to model air quality or deposition
impacts separately on a location-by-location basis to evaluate dispersion and deposition
of APFO from the Saint-Gobain facility,” or “to show that the PFAS contaminants from
35
2020 Expert Report of David Sullivan (doc. no. 378-9) at 38.
36
2018 Expert Report of David Sullivan (doc. no. 122) at 12.
37
2020 Expert Report of David Sullivan (doc. no. 378-9) at 16.
38
2018 Expert Report of David Sullivan (doc. no. 122) at 12-13.
13
the Saint-Gobain facility were dispersed throughout and beyond the class geographic
area.”39
Based on his analysis, Sullivan concluded that “the Saint-Gobain facility is the
source of the high levels of PFAS contamination measured throughout the class
geographic area[s].”40 More specifically, he found that “dispersion of PFAS emissions
from the Saint-Gobain facility . . . occurs on an area-wide basis . . . throughout the
boundaries of the class geographic areas, including all properties within these boundaries,
including each class representative’s property” and “the locations of the MVDWW
wells,” and this deposition “occurred throughout the class areas each year [that] SaintGobain” and the facility’s previous owner Chemfab “were in operation and used
APFO.”41 Sullivan further noted that the pattern of groundwater contamination in the
class areas is consistent with Saint-Gobain as the source, with the concentration of PFOA
decreasing as distance from the facility increases, and approaching zero “at the most
distant locations” from the facility.42
Sullivan also considered other potential sources of PFOA contamination in the
class areas. He noted that the NHDES “has evaluated over 40 potential sources of PFOA
emissions,” and the “only other identified airborne source of PFOA with quantified
39
Id. at 13.
40
2018 Expert Report of David Sullivan (doc. no. 122) at 12.
41
2020 Expert Report of David Sullivan (doc. no. 378-9) at 11.
42
2018 Expert Report of David Sullivan (doc. no. 122) at 12; see also 2020 Expert Report of
David Sullivan (doc. no. 378-9) at 10-11.
14
airborne emission rates is the Textiles Coated Incorporated (TCI) facility that operated in
Amherst, New Hampshire from 1985 to 2006.”43 Sullivan opined that “[e]missions from
TCI do not explain the pattern of deposition that occurs in the class geographic areas,”
particularly the “decreasing trend of PFOA [groundwater] contamination with distance
from” the facility.44 He added that other potential sources of contamination identified by
the defendants, such as Harcros Chemicals Incorporated and the Merrimack landfill, are
not “consistent with the observed contamination pattern that was created by the air
deposition pathway.”45
In short, Sullivan used data and modeling that is common to the class to conclude
that Saint-Gobain’s emissions of PFOA “dispersed and deposited” onto the ground at
each and every property in the class areas.46 Sullivan further opined that other sources of
PFOA emissions potentially had “localized” effects, but they “would not explain the
general trend in the groundwater contamination pattern around [the] Saint-Gobain
[facility].”47 Sullivan did not quantify the contributions of the other PFOA sources to the
contamination in the class areas or incorporate the other sources into his analysis of
PFOA deposition.48
43
2020 Expert Report of David Sullivan (doc. no. 378-9) at 35.
44
Id.
45
Id.
46
Id.
47
Id.
48
See, e.g., June 4, 2021 Deposition Tr. of David Sullivan (doc. no. 271-13) at 224:16-225:9
(agreeing that he did not quantify “what percentage of PFOA emitted from the TCI facility was
deposited within the proposed class areas”); Oct 11, 2019 Deposition Tr. of David Sullivan (doc.
15
Hyeong-Moo Shin, Ph.D. has 15 years of research experience in environmental
health sciences and focuses, in part, on modeling the fate and transport of toxic
chemicals.49 Shin began with the premise that PFOA that is emitted into the air by
manufacturing facilities is deposited on the ground, and it can travel through soil to
groundwater. He described this phenomenon as a “well-accepted transport mechanism”
for contaminants, like PFOA, that are “extremely persistent in an outdoor
environment.”50 He also opined that the four models that Barr used to evaluate and
simulate the transport of PFOA air emissions from the Saint-Gobain facility are “wellaccepted and thus widely used in the field of environmental science and engineering” due
to their “reliability and maturity.”51
Shin concluded that emissions of PFOA from the Saint-Gobain facility
“contributed to the observed PFAS in groundwater in the class area.”52 He partly based
this opinion on the pattern of contamination seen in the class areas, with high
concentrations of PFOA observed in the wells closer to the facility, as well as “along the
valley that includes low elevations” and in upstream wells.53 According to Shin, this
no. 201-3) at 118:15-19 (“Q. Does your Table 1 in Exhibit 4 take into account the background
amount of PFOA in the atmosphere? A. No. This is incremental modeling of the Saint-Gobain
facility.”)
49
2020 Expert Report of Hyeong-Moo Shin (doc. no. 236-7) at 5.
50
Id. at 7, 9.
51
Id. at 8.
52
Id. at 7.
53
Id. at 10.
16
pattern is explained by “the topographic features present at the point of the air
emissions,” such as the “steep hills to the east and the west” of the facility, and the
“northerly and southerly winds” that transported PFOA from the facility.54 Shin also
opined that other sources of PFOA listed in the Barr Report “did not cause PFOA
groundwater contamination in the class areas,” in part because they are not proven to
cause widespread PFOA contamination.55
Russell Detwiler, Ph.D., has a doctoral degree in civil engineering, and his
research focuses on groundwater hydrology.56 Detwiler reviewed two of the models used
in the Barr Report—the MODFLOW and MT3D models—which analyze the movement
of PFOA from the ground surface to the water table and then the underlying aquifer.57
He found that the Barr models “underestimated measured [PFOA] concentrations in some
wells.”58 Detwiler recalibrated the models to more “closely match” actual measurements
of PFOA concentrations in various MVDWW wells, and he tested the models’
“sensitivity to different parameters.”59 He concluded that two of his recalibrated models,
which he referred to as Models 3 and 4, “bracket the likely actual concentrations of
[PFOA] over time” and indicate “elevated PFOA concentrations in [ ] wells within the
54
Id.
55
See id. at 15-16.
56
2020 Expert Report of Russell Detwiler (doc. no. 231-10) at 2.
57
Id. at 3-4.
58
Id. at 5.
59
Id. at 2, 7.
17
class area in the years since 2016.”60 At the end of his report, Detwiler included a table
listing the average annual PFOA concentrations at five of the MVDWW wells from 1986
through 2030, as estimated by Models 3 and 4.61 Like Sullivan, Detwiler did not model
the contributions of other PFOA sources to the contamination in the MVDWW wells.
Finally, Christopher Baggett is a licensed professional engineer with expertise in
the “analysis, modeling, and design of water, wastewater, and reclaimed water
systems.”62 Baggett used a “water quality model” called WaterGEMS to simulate the
transport of PFOA throughout the MVDWW distribution system and to produce
“reasonable estimates” of PFOA concentrations “at various locations in the MVDWW
water distribution system” from 2001 through 2019.63 Baggett explained that water
quality models are “a cost-effective tool to evaluate spatial and temporal variation of
water quality constituents . . . and can be used to understand fate and transport of
constituents through water distribution systems.”64
Baggett fed a variety of information into his water quality model, including
Detwiler’s estimates of PFOA concentrations in the MVDWW wells; measured PFOA
concentrations in the MVDWW wells, where available; characteristics of the MVDWW
system’s water pipes; and data on ground topography, water use, and well production.
60
Id. at 8.
61
See id. at 14.
62
2020 Expert Report of Christopher C. Baggett (doc. no. 231-11) at 5.
63
Id. at 8, 10.
64
Id. at 9.
18
Using the results from his model, Baggett calculated the “average daily PFOA
concentration in the MVDWWW water within each model pipe.”65 He then identified the
location of “each served residential property” and “associated” each property “with the
nearest model pipe,” which allowed him to determine “the average daily PFOA
concentrations for all served residential properties” from 2001 through 2019.66 He
combined this information with estimated property ownership periods to identify the
“served residential properties that likely received drinking water with an average daily
PFOA concentration of” at least 20 ppt or at least 70 ppt “for 365 days or more within
each property ownership period.”67 Baggett’s analysis also did not model or incorporate
the contributions of other sources of PFOA to groundwater contamination.
C. Plaintiffs’ expert witnesses on damages
The plaintiffs present two experts on class-wide, or aggregate, economic damages.
Jeffrey Carr, President and Senior Economist at Economic and Policy Resources, Inc.,
estimated the aggregate costs associated with the forced abandonment of contaminated
private wells. Randall Bell, who holds a Ph.D. in human and organizational systems and
specializes in real estate damage economics and valuation, calculated the aggregate
diminution in class area property values caused by PFOA contamination.
Carr focused his analysis on the properties within the class areas that switched
from private wells to municipal water. He explained that plaintiffs’ counsel provided him
65
Id. at 32.
66
Id.
67
Id.
19
with “a list of addresses . . . of affected properties and the date each property was
connected to municipal water.”68 Carr defined the cost of forced abandonment of private
wells as the difference between the cost of municipal water and the cost of owning,
operating, and maintaining a private well. He aggregated this surplus cost across several
years, beginning with the dates on which the properties were connected to municipal
water lines and ending in 2030. He selected the year 2030 as the endpoint based on the
“average duration of home ownership in the region.”69
Carr calculated municipal water costs for each of the three cities in the class areas
with affected properties—Merrimack, Litchfield, and Bedford—by summing each city’s
flat meter fee, water consumption fee (a flat fee per centum cubic foot of water
consumed), and “miscellaneous fees.”70 To project future municipal water costs, Carr
assumed that the fees would rise at a rate “corresponding to the March 2001 to March
2020 annual average rate of growth of the consumer price index.”71 He also
approximated future average water consumption in the three cities based on past
consumption trends, as reflected in “detailed billing data” from households in
Litchfield.72
68
2020 Expert Report of Jeffrey Carr (doc. no. 297-2) at 3.
69
Id.
70
Id.
71
Id. at 4.
72
Id. at 4-5.
20
Next, Carr estimated that the average annual maintenance and operation costs for a
private well is $225. He based this number on information from two service providers,
“Skillings & Sons, Inc. of Amherst, NH and Capital Well Cleaning Water Center of
Lancaster, NH.”73 Carr’s contact at Skilling & Sons stated that the annual cost depends
on the well, including its location, filters, and age, and it “[m]ight cost $120 for a tune up
or $250 for two hours of work” on the well.74 Carr’s contact at Capital Well told him that
a pumping system “is good for years but should be periodically tested,” and that it “costs
between $200 and $250 for us to check it annually.”75 During his deposition, Carr
acknowledged that the $225 estimate “does not explicitly account for all instances of
failure, . . . testing, . . . breakdown in pumps,” and “electricity charges,” but he also
pointed out that each address “is not going to have their pump break, . . . [and] is . . . [not]
necessarily [going to] test their water every year professionally . . . .”76 Finally, Carr
compared the aggregate private well costs with the aggregate municipal water costs for
the affected properties from 2016 through 2030 and concluded that the present value of
additional costs incurred by class members who switched from private wells to municipal
water is roughly $2.6 million.
Bell used mass appraisal techniques to calculate the aggregate diminution in
property value across the class due to PFOA contamination in household water supplies.
73
Id. at 15.
74
Exhibit to 2020 Expert Report of Jeffrey Carr (doc. no. 297-5) at 2.
75
Id.
76
May 26, 2021 Deposition Tr. of Jeffrey Carr (doc. no. 297-3) at 102:12-16, 102:22-103:4.
21
Mass appraisal is the “process of valuing a universe of properties as of a given date using
standard methodology, employing common data, and allowing for statistical testing.”77
According to Bell, the impact of PFOA contamination on property values in this case is
well suited for class-wide estimation using mass appraisal techniques because there is a
“single identifiable source” and type “of contamination,” in an area with common
geographical boundaries, consisting of a “common property type[]” (residential
property), accompanied by “ample market data.”78 He also noted that the contamination
raises common concerns for residents and buyers, which create a risk element or “stigma”
that “tend[s] to reduce property values across an area” in a manner that is “not unique to
any individual parcel of property within the affected area.”79
Bell primarily focused his analysis on single-family residences and condominiums
within the class areas in Litchfield, Merrimack, Bedford, and Manchester. He first
developed a regression to estimate the value of the class properties absent contamination,
or the unimpaired value. The regression included several independent variables—the
number of bathrooms, date of sale, age, lot and/or home size, and location (Bedford,
Manchester, Litchfield, and Merrimack)—and a dependent variable of sale or rent price.
Bell ran the regression on local sales data from 2012 through 2019, excluding sales in
which some participants may have been aware, at least in part, of the PFOA
77
August 28, 2020 Expert Report of Randall Bell (doc. no. 299-11) at 62 (quoting Appraisal
Foundation, USPAP Standard 6; International Association of Assessing Officers, Standard on
Mass Appraisal of Real Property).
78
June 25, 2018 Declaration of Randall Bell (doc. no. 299-9) at 12-13.
79
Id. at 8-9.
22
contamination at the property. By removing those transactions, Bell asserted that the
sales data he used belonged to transactions in which PFOA contamination on the specific
property was either not disclosed or disclosed in a neutral, positive, or ambiguous
manner, and thus did not meaningfully affect the sales price.80
Next, Bell used several mass appraisal techniques to estimate the reduction in
property value due to contamination, which he separated into “risk effects” and “use
effects.” Risk effects refer to the perception of environmental risk, and use effects reflect
“the loss of conventional use of the subject properties due to household water PFAS
contaminant issues.”81
Based on a literature review, Bell estimated that use effects cause property values
to decline by at least 15% for properties with contamination levels greater than the
regulatory maximum contaminant limit. Throughout his analysis, Bell applied the MCL
of 12 ppt, which the State of New Hampshire adopted in July 2020. He combined
estimated property rental prices, the period of time for which contamination at each
property was above 12 ppt, and the 15% use effect, and he calculated an aggregate use
effect of not less than $142 million.
Bell primarily used three approaches to estimate risk effects: a literature review,
an analysis of published case studies regarding the effect of household drinking water
contamination on the perception of risk, and paired sales analysis. Bell’s paired sales
80
See August 28, 2020 Expert Report of Randall Bell (doc. no. 299-11) at 89, 165-68.
81
Id. at 18.
23
analysis focused on six class area properties that were sold during the period relevant to
this litigation. Bell discerned based on disclosure forms exchanged during the sale that in
each of the six transactions, the buyers were at least somewhat informed about the
presence and detrimental nature of PFOA water contamination on the property. Bell
compared the sales price of these properties with the sales price of comparable properties
in other areas that were not known to be contaminated. Under this appraisal method, the
difference in the properties’ sale prices is attributable to contamination.
Bell finally pooled together his results from the different appraisal techniques in
order to estimate a risk effect of 15% for properties with contamination levels above the
MCL and 5% for properties with contamination levels below the MCL. He identified
which properties in his study belong in each category using available well testing data
and certain assumptions, applied the corresponding risk effect percentage to the estimated
unimpaired values of the properties, and calculated an aggregate risk effect of not less
than $435 million. Adding the risk and use effects together, Bell found that the total
diminution-in-value damages for the class area properties as of October 31, 2019 were
“not less than $577,935,862.”82
III.
Analysis
As previously noted, Saint-Gobain and Busnel (hereinafter referred to jointly as
the defendants or Saint-Gobain) object to class certification, arguing in large part that the
82
Id. at 203.
24
plaintiffs’ claims raise numerous individual issues. Saint-Gobain’s objection to
certification focuses on three Rule 23 requirements—commonality, predominance, and
superiority. Though Saint-Gobain does not dispute that the plaintiffs satisfy the other
Rule 23 elements, the court analyzes each requirement in turn below.
A.
Ascertainability
“In addition to the explicit requirements of Rule 23, courts generally recognize the
implicit requirement that the class definition must be sufficiently definite to allow the
court, parties, and putative class members to ascertain class membership.” Kenneth R. ex
rel. Tri-Cnty. CAP, Inc./GS v. Hassan, 293 F.R.D. 254, 263 (D.N.H. 2013) (McAuliffe,
J.) (internal quotation omitted). To satisfy the ascertainability requirement, “the court
must be able to resolve the question of whether class members are included or excluded
from the class by reference to objective criteria.” Raitport v. Harbour Cap. Corp., 312 F.
Supp. 3d 225, 236 (D.N.H. 2018) (McAuliffe, J.) (quoting Matamoros v. Starbucks,
Corp., 699 F.3d 129, 139 (1st Cir. 2012)). If the class definition makes “class members
impossible to identify prior to individualized fact-finding and litigation,” the class fails
this basic requirement. Crosby v. Soc. Sec. Admin. of U.S., 796 F.2d 576, 580 (1st Cir.
1986).
The proposed class is ascertainable, as membership depends on three objective
criteria—property ownership, on or after a specific date (March 4, 2016), and within
defined geographical boundaries. Further, the class members can be identified without
extensive, individual fact-finding, according to an affidavit submitted by plaintiffs’
counsel. The names of current and past property owners in the designated locations can
25
be gathered from public records, including New Hampshire property records and city tax
assessors’ property ownership records or tax bills.83 The property ownership records are
available beginning as early as 2000.84 Also, to the extent that the identified individuals
left the class properties at some point, their current addresses can be determined, to an
extent, using the U.S. Postal Service’s National Change of Address database.85
B.
Numerosity
Rule 23(a)(1)’s numerosity requirement is satisfied if “the class is so numerous
that joinder of all members is impracticable.” Berenson v. Nat’l Fin. Servs. LLC, 485
F.3d 35, 38 (1st Cir.2007). “No minimum number of plaintiffs is required to maintain a
suit as a class action, but generally if the named plaintiff demonstrates that the potential
number of plaintiffs exceeds 40, [this] prong of Rule 23(a) has been met.” Clough v.
Revenue Frontier, LLC, No. 17-CV-411-PB, 2019 WL 2527300, at *3 (D.N.H. June 19,
2019) (Barbadoro, J.) (quoting García-Rubiera v. Calderón, 570 F.3d 443, 460 (1st Cir.
2009)).
The plaintiffs submitted an affidavit from counsel and from the Business Manager
of the MVDWW providing estimates of the size of the proposed class and subclasses.
The court relies on these estimates in assessing the numerosity requirement. See Hassan,
293 F.R.D. at 265 (“In deciding whether plaintiffs have met the numerosity requirement,
the court ‘may draw a reasonable inference as to the size of the class given the facts
83
2018 Affidavit of Paul DeCarolis (doc. no. 247-9) at ¶¶ 9-10, 13.
84
Id. at ¶ 13.
85
Id. at ¶ 11.
26
before it.’” (quoting Rolland v. Cellucci, 1999 WL 34815562, at *3 (D. Mass. Feb. 2,
1999))). The MVDWW Business Manager asserted that the MVDWW service area is
comprised of 8,905 households within Merrimack and 382 homes in Bedford, New
Hampshire.86 Further, an environmental consulting company hired by the plaintiffs
calculated “over 1,200 owners of residential properties with private groundwater wells
within the . . . Private Well Class Geographic Area.”87 These numbers should increase
after factoring in any turnover in property ownership in the areas since March 4, 2016. A
potential class size of thousands of people, as here, satisfies the numerosity requirement.
C.
Commonality
“Rule 23(a)’s requirement of commonality is a low bar, and courts have generally
given it a more permissive application.” In re New Motor Vehicles, 522 F.3d at 19
(internal quotation omitted). For class treatment to be appropriate, the class members’
claims “must depend on a common contention” that is “of such a nature that it is capable
of class-wide resolution—which means that determination of its truth or falsity will
resolve an issue that is central to the validity of each one of the claims in one stroke.”
Dukes, 564 U.S. at 350. “Even a single common question will do.” Id. at 359 (internal
quotation and alterations omitted). The commonality inquiry does not focus, then, on the
number of questions common to the class, but “the capacity of a class-wide proceeding to
86
Id. at ¶ 12.
87
Id. at ¶ 7.
27
generate common answers apt to drive the resolution of the litigation.” Id. (emphasis in
original) (internal quotation omitted).
The commonality requirement is satisfied here. Saint-Gobain’s actions with
respect to the release of PFOA and subsequent warnings and mitigation efforts; the
geographical scope of contamination from Saint-Gobain’s emissions; and the toxic nature
of PFOA are common issues that can be determined on a class-wide basis. These issues
are also central to—and will thus meaningfully advance resolution of—each of the
claims.
Indeed, the plaintiffs’ nuisance and trespass claims are predicated on the theory
that Saint-Gobain caused the entry of a contaminant onto their properties. See Moulton
v. Groveton Papers Co., 112 N.H. 50, 54 (1972) (“[A] trespass [is] an intentional invasion
of the property of another”); Robie v. Lillis, 112 N.H. 492, 495 (1972) (A private
nuisance is “an activity which results in an unreasonable interference with the use and
enjoyment of another’s property.”). And Saint-Gobain’s actions surrounding the
emission of PFOA and subsequent mitigation efforts, as well as the resulting
contamination of the plaintiffs’ groundwater, are central to the duty, breach, and
causation elements of the negligence claims, as discussed further infra Section III.E.iii.
See Est. of Joshua T. v. State, 150 N.H. 405, 407 (2003) (“It is axiomatic that in order to
prove actionable negligence, a plaintiff must establish that the defendant owed a duty to
the plaintiff, breached that duty, and that the breach proximately caused the claimed
injury.” (internal citation omitted)).
28
Saint-Gobain argues that in order to satisfy the commonality requirement, the
plaintiffs must, at a minimum, provide class-wide proof of injury by establishing that
each property in the class area is contaminated by PFOA due to Saint-Gobain’s
emissions. According to Saint-Gobain, the plaintiffs fail to satisfy this burden, as they
“have nothing that even purports to show PFOA at every location in the proposed class
area.”88
This argument misapprehends Rule 23’s commonality requirement. The plaintiffs
need not provide common evidence establishing that each putative class member was
injured in order to satisfy commonality. The presence of uninjured class members does
not preclude class certification if, as is the case here, there is “a mechanism that can
manageably remove uninjured persons from the class in a manner that protects the
parties’ rights.” In re Asacol Antitrust Litig., 907 F.3d 42, 54 (1st Cir. 2018). As a prime
example, the record indicates that NHDES sampling has captured negligible amounts of
PFOA in some wells within the class areas.89 Plaintiffs’ counsel explained in an affidavit
that each NHDES well sample has been associated with a physical address. 90 Thus, to
the extent that property owners are found to be uninjured based on the well sampling
88
Defs.’ Objection to Class Cert. (doc. no. 270-1) at 27.
89
See 2019 Expert Report of Michael Mobile (doc. no. 418-1) at 33 (map depicting NHDES
sampling results as of 2019, which includes some wells within the class area in which PFOA was
not detected); but see Pls.’ Reply Brief (doc. no. 292) at 42-43 (“Even those properties whose
private wells tested non-detect (in a single test) had air deposition of toxic PFOA . . . .”).
90
2018 Affidavit of Paul DeCarolis (doc. no. 247-9) at ¶ 7.
29
data, they can be identified through property ownership records, as described supra
Section III.A, and manageably removed from the class.
Rather than class-wide injury, the common question in this case (which is
susceptible to class-wide proof) is the geographic scope of PFAS contamination
attributable to Saint-Gobain, and to what extent this contaminated area overlaps with the
class areas. Accord Mejdrech v. Met-Coil Sys. Corp., 319 F.3d 910, 911 (7th Cir. 2003)
(noting, in a class action concerning a factory’s release of toxic chemicals into
surrounding groundwater, that “[t]he question[] . . . whether the [chemical] reached the
soil and groundwater beneath the homes of the class members [is] common to all the
class members” and, since “[t]he class members’ homes occupy a contiguous area the
boundaries of which are known precisely,” the relevant inquiry “is whether this area or
some part of it overlaps the area of contamination.”).
The plaintiffs have provided class-wide proof of the geographic scope of
contamination attributable to Saint-Gobain by using common data and models to estimate
the transmission of PFOA from the facility’s air emissions to the groundwater on an areawide, and not site-specific, basis. The plaintiffs’ experts largely used the same models
that Saint-Gobain’s own consultant used in the Barr Report to simulate this movement of
Saint-Gobain’s PFOA emissions. Barr specifically stated in its report that the four
models are used for “regional” modeling, and not “site-specific modeling performed to
simulate groundwater flow conditions in a small area . . . .”91 Further, based on this area-
91
Barr Report (doc. no. 246-5) at 10.
30
wide modeling and well sampling data, the plaintiffs’ experts agree that Saint-Gobain’s
PFOA emissions contributed to the groundwater contamination across the class areas,
even if the full volume of contamination on any given property may not be solely
attributable to Saint-Gobain.
Saint-Gobain also argues that the plaintiffs fail to satisfy the commonality
requirement because PFOA contamination must be modeled on a site-specific or
property-by-property, instead of on an area-wide, basis. Based on the record before it,
the court concludes that this challenge can be asserted against the class as a whole or in a
manner that is manageable in a class format, and thus does not preclude a finding of
commonality. Indeed, the defendants’ experts do not specify or utilize a property-byproperty or localized method to map out the locations of groundwater contamination
caused by the Saint-Gobain facility. Further, during oral argument, counsel did not
meaningfully identify a method or model that Saint-Gobain purportedly intends to use to
refute the presence of PFOA contamination attributable to Saint-Gobain on a propertyby-property basis.92 Instead, Saint-Gobain’s experts raise a number of challenges to the
92
See, e.g., Dec. 1, 2022 Morning Hearing Tr. (doc. no. 430) at 70:17-71:19 (defense counsel
confirmed that the defendants’ experts did not “do their own model” with individualized
assessments of contamination attributable to Saint-Gobain within the class areas, and counsel
further asserted, without detail, that “these defenses [are] in our view.”). It bears noting that one
of Saint-Gobain’s expert witnesses, Lyle Chinkin, stated that “[t]he measured PFAS
concentrations in water samples in the proposed class areas are often at levels close to
background PFOA found in the surface waters of New Hampshire and upstate New York; these
levels cannot be attributed to the [Saint-Gobain] Merrimack facility and are disregarded by the
plaintiffs’ experts.” July 6, 2021 Expert Report of Lyle Chinkin (doc. no. 356-3) at 30. The
defendants’ experts Sorab Panday and John Connor contended that there are a handful of “hot
spots” at various distances from the facility, where elevated PFOA “concentrations in
groundwater suggest local sources of PFOA rather than air deposition from” Saint-Gobain. 2021
Expert Report of John Connor and Sorab Panday (doc. no. 356-4) at 33-34. To the extent that
31
validity, comprehensiveness, and accuracy of the plaintiffs’ area-wide models and
underlying assumptions—critiques that apply across the class.
The court accordingly finds that the geographic scope of Saint-Gobain’s
groundwater contamination is a common issue that can be resolved on a class-wide basis.
In drawing this conclusion, the court emphasizes that there is a distinction between the
presence of PFOA contamination attributable to Saint-Gobain (an issue that is susceptible
to class-wide proof and defenses, as discussed in this Section) and the relative
contribution of Saint-Gobain, as compared to other sources, to the amount of PFOA
contamination at locations within the class areas (an issue that may require individualized
analysis, as discussed infra Section III.E.i).
D.
Typicality and adequacy
“The typicality and adequacy requirements” of Rules 23(a)(3) and (a)(4)
“overlap.” Hassan, 293 F.R.D. at 270. To satisfy the typicality requirement, “the named
the defendants intend to argue, on these grounds, that Saint-Gobain’s PFOA is not present in
certain portions of the class area groundwater, these arguments do not defeat commonality as to
the issue of the geographic scope of Saint-Gobain’s contamination. This is because the
defendants do not specifically explain whether and why the “background PFOA” or the “local
hot spot” defense can only be raised on a property-by-property or individualized basis. Cf. Bais
Yaakov of Spring Valley v. ACT, Inc., 12 F.4th 81, 89 (1st Cir. 2021) (“In deciding whether
individual issues predominate over common questions, a court must not rely on mere speculation
that individual issues may arise.”). Without such detail from the defendants, and based on the
data on which these defenses rely and the limited number of “hot spots,” the court is convinced,
by a preponderance, that the defenses can be asserted in a manner that is manageable in a class
format. And if they require some individualized analysis (which the court does not presently
find), the record does not indicate that such analysis would overwhelm the common issues and
evidence discussed in this Section. See Applegate v. Formed Fiber Techs., LLC, No. 2:10-CV00473-GZS, 2012 WL 3065542, at *6 (D. Me. July 27, 2012) (“Where class members have
different degrees of injury or even where defenses might exist only as to particular individuals,
commonality has been found for class certification.”).
32
plaintiff[s’] claim[s] and the class claims [should be] so interrelated that the interests of
the class members will be fairly and adequately protected in their absence.” General Tel.
Co. of Southwest v. Falcon, 457 U.S. 147, 157 n.13 (1982). “Typicality, as with
commonality, does not require ‘that all putative class members share identical claims.’”
In re Neurontin Mktg. & Sale Pracs. Litig., 244 F.R.D. 89, 106 (D. Mass. 2007) (quoting
In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 531-32 (3d Cir. 2004)). Rather,
named representatives’ claims are typical if they “arise from the same event or practice or
course of conduct that gives rise to the claims of other class members, and are based on
the same legal theory.” García-Rubiera, 570 F.3d at 460 (internal quotations and
alterations omitted).
Similarly, adequacy requires that “the representative parties . . . fairly and
adequately protect the interests of the class.” Amchem Prod., Inc. v. Windsor, 521 U.S.
591, 625 (1997). Specifically, “[t]he moving party must show first that the interests of
the representative party will not conflict with the interests of any of the class members,
and second, that counsel chosen by the representative party is qualified, experienced and
able to vigorously conduct the proposed litigation.” Andrews v. Bechtel Power Corp.,
780 F.2d 124, 130 (1st Cir. 1985). With respect to the first part, “perfect symmetry of
interest is not required[;] . . . [o]nly conflicts that are fundamental to the suit and that go
to the heart of the litigation prevent a plaintiff from meeting the . . . adequacy
requirement.” Matamoros, 699 F.3d at 138 (quoting Newberg on Class Actions § 3:58
(5th ed. 2012)).
33
Both requirements are satisfied. As of the date of the third amended complaint,
the class representatives are property owners in the proposed class areas that receive their
water from private groundwater wells or MVDWW wells.93 Each of the class
representatives shares the same interests as the rest of the class, as the same “course of
conduct . . . gives rise to the[ir] claims.” In re Dial, 312 F.R.D. at 54. Specifically, the
class representatives, like the putative class members, allegedly rely or relied on a
household water source that is contaminated due to Saint-Gobain’s emission of toxic
contaminants and subsequent failure to investigate, mitigate, and warn the surrounding
population. The court does not find, and Saint-Gobain does not argue, that the different
well types and potential variation in the duration or extent of the class representatives’
exposure to contaminated water render their claims atypical or present conflicts of
interest with the class members. Finally, Saint-Gobain does not dispute class counsel’s
adequacy; indeed, counsel are experienced in both class action litigation and legal
practice.
E.
Predominance
Rule 23(b)(3) requires that “questions of law or fact common to class members
predominate over any questions affecting only individual members.” Fed R. Civ. P.
23(b)(3). The predominance inquiry “calls upon courts to give careful scrutiny to the
relation between common and individual questions in a case.” Tyson Foods, Inc. v.
Bouaphakeo, 577 U.S. 442, 453 (2016). “An individual question is one where members
93
See Third Am. Compl. (doc. no. 348) at ¶¶ 2-6.
34
of a proposed class will need to present evidence that varies from member to member,
while a common question is one where the same evidence will suffice for each member
to make a prima facie showing or the issue is susceptible to generalized, class-wide
proof.” Id. (internal quotations omitted).
“[A] class may be certified notwithstanding the need to adjudicate individual
issues so long as the proposed adjudication will be both ‘administratively feasible’ and
‘protective of defendants’ Seventh Amendment and due process rights.’” In re Asacol
Antitrust Litig., 907 F.3d 42, 52 (1st Cir. 2018) (quoting In re Nexium, 777 F.3d at 19).
Thus, at times, “[a] district court must formulate some prediction as to how specific
issues will play out in order to determine whether common or individual issues
predominate.” Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 298 (1st Cir.
2000).
Saint-Gobain argues that the class members’ claims present “scores of individual
inquiries” going to injury, causation, and damages, which defeat predominance. 94 Below,
the court begins by analyzing whether common issues predominate with respect to SaintGobain’s liability under each claim, and then proceeds to consider the plaintiffs’ damages
theories.
Liability – trespass
i.
The plaintiffs allege that Saint-Gobain trespassed upon their land by causing
PFOA to enter into their properties without their permission. “[A] trespass [is] an
94
Defs.’ Objection (doc. no. 270-1) at 2.
35
intentional invasion of the property of another.” Moulton v. Groveton Papers Co., 112
N.H. 50, 54 (1972). A defendant “is subject to liability to another for trespass,
irrespective of whether [the defendant] thereby causes harm to any legally protected
interest of the other, if [the defendant] intentionally . . . enters land in the possession of
the other, or causes a thing or a third person to do so . . . .” Case v. St. Mary’s Bank,
164 N.H. 649, 658 (2013) (quoting Restatement (Second) of Torts § 158 (1965)).
Trespass is an intentional tort. “To constitute an intentional tort, the tortfeasor must
have known that his conduct was substantially certain to result in injury.” Thompson v.
Forest, 136 N.H. 215, 220 (1992) (emphasis in original).
Saint-Gobain contends that two elements of the trespass claim—contamination
and Saint-Gobain’s state of mind—require individualized proof. As discussed supra
Section III.C, the plaintiffs have shown that the geographic scope of contamination is
suitable for class-wide determination. Cf. Fisher v. Ciba Specialty Chemicals Corp., 238
F.R.D. 273, 307 (S.D. Ala. 2006) (denying certification for nuisance and trespass claims
centered on environmental contamination in part because “common proof will not show
that any plaintiff’s property is, in fact, contaminated . . . ; moreover, plaintiffs have come
forward with no scientific testimony under which these chemicals would have uniformly
blanketed the area of concern . . . .”). Thus, the court turns its attention to SaintGobain’s state-of-mind argument.
Saint-Gobain is correct that, to have the requisite intent to trespass upon the class
members’ land, Saint-Gobain must have known that the facility’s PFOA emissions were
substantially certain to enter the class areas when it released them. According to Saint36
Gobain, the foreseeability of this entry varied “according to time and context” and is
thus not susceptible to class-wide proof.95 When asked to elaborate on its position
during oral argument, Saint-Gobain asserted that the relevant time period for assessing
its state of mind is the years and decades leading up to the class period—when SaintGobain released the specific PFOA that was present in the class area groundwater during
the class period.96 Saint-Gobain contends that the foreseeability of contamination from
PFOA emissions varied over that stretch of time, in part because science on the
chemicals was developing.
Saint-Gobain’s argument misstates the law on trespass, as it suggests that the
intent element runs to the eventual harm to the plaintiff (in this case, groundwater
contamination), and that liability for trespass attaches once that harm occurs. In fact,
“the wrong” at issue in a trespass claim is the defendant’s “interference with the
possessor’s interest in excluding others from the land.” Restatement (Second) of Torts
§ 163 (1965). Thus, “[t]he intention which is required to make the [defendant] liable”
for trespass “is an intention to enter upon the particular piece of land in question,” and
not an intention to cause a particular harm. Id. (emphasis added). Indeed, “even a
harmless entry . . . if intentional, is a trespass.” Id. Finally, to be liable for trespass, the
defendant need not “act for the purpose of entering” another’s piece of land; “[i]t is
95
Id. at 34.
96
See Dec. 1, 2022 Afternoon Hearing Tr. (doc. no. 429) at 13:3-15:6.
37
enough that [the defendant] knows that [its] conduct will result in such an entry,
inevitably or to a substantial certainty.” Id.
It follows, then, that the intent requirement is satisfied if Saint-Gobain knew that
its act of emitting PFOA was substantially likely to cause an entry of the contaminant
into the class areas—regardless of when that entry, and resulting harm, occurs or
occurred. The plaintiffs attempt to make the requisite showing by focusing on SaintGobain’s intent from 2003 through 2006. The plaintiffs contend that, at least by 2003,
Saint-Gobain “monitored the PFOA issue, . . . knew that [the] EPA was concerned about
the toxicity to animals, [and] that its emissions were going into the atmosphere.” 97 The
plaintiffs then point to the Barr Report’s estimates of annual PFOA emissions from the
facility, which indicate that Saint-Gobain continued releasing hundreds of pounds of
PFOA into the air in 2003, 2004, 2005, and 2006, before reducing its emissions to
double or single digits beginning in 2007.98
Saint-Gobain’s intent during the 2003-2006 time period can be established through
common proof of Saint-Gobain’s knowledge of (1) the occurrence and volume of PFOA
emissions from its facility; (2) the toxic nature of PFOA; and (3) the science showing
that PFOA travels from the air, to the land, and then to the groundwater on an area-wide
basis. The court finds no basis to conclude (nor does Saint-Gobain contend) that its
knowledge of these matters varied during the 2003-2006 period. To the extent that
97
Pls.’ Reply (doc. no. 292) at 28.
98
Barr Report (doc. no. 246-5) at 71.
38
Saint-Gobain seeks to argue that it was not substantially certain during the 2003-2006
period that its emissions would enter the entirety of the class areas—in other words, that
its intent to cause entry varied by location—it has not set forth a reason that this
argument must be made on an individual basis, nor does that seem likely, since the
record before the court includes area-wide, and not site-specific, models of the transport
and movement Saint-Gobain’s PFOA emissions from air to water.
Finally, if Saint-Gobain seeks to argue that some class members were not and/or
will not be harmed by the PFOA emissions from the 2003-2006 period (because, for
example, those specific plaintiffs were no longer present in the class areas when the
2003-2006 emissions reached the groundwater), this argument goes to damages, and not
liability. In other words, the issue of when the PFOA emitted in the 2003-2006 period
reached the class area groundwater may affect the damages calculation, and potentially
the allocation of damages among class members, but it does not affect the liability
determination. The predominance element is accordingly satisfied with respect to SaintGobain’s liability for trespass.
ii.
Liability – nuisance
The plaintiffs also allege that the contamination of their groundwater constitutes a
nuisance. A nuisance is “an activity which results in an unreasonable interference with
the use and enjoyment of another’s property.” Robie, 112 N.H. at 495. A defendant is
liable where the “harm imposed upon the plaintiff” by the defendant’s interference “was
‘greater than it is reasonable to require her to bear under the circumstances, without
compensation.’” Ferguson v. City of Keene, 111 N.H. 222, 224 (1971) (quoting
39
Restatement (Second) of Torts § 822 n.31). “In general, conduct will be unreasonable
only when its utility to the [defendant] and to the public is outweighed by the gravity of
the harm that results.” Robie, 112 N.H. at 496.
The plaintiffs do not establish that the reasonableness of Saint-Gobain’s alleged
actions can be determined on a class-wide basis. The plaintiffs assert that this is a
common issue because it is judged by the reasonable person standard.99 Even under the
reasonable person standard, however, resolution of this issue requires individual inquiries
into the extent to which the contamination caused by Saint-Gobain interfered with the
class member’s specific use and enjoyment of his or her property. See 58 Am. Jur. 2d
Nuisances § 59 (“Unreasonableness, in the context of a private nuisance action, cannot be
determined in the abstract but, rather, must be judged under the circumstances of the
particular case”). Relevant considerations could include the amount of PFOA
contamination present in the individual’s groundwater and attributable to Saint-Gobain
during that individual’s period of occupancy, whether and when the individual obtained
access to untainted water through, for example, the NHDES’s bottled water program or
the expansion of municipal water lines, the effectiveness of mitigation efforts, and the
specific inconveniences attendant to the installation of municipal water lines or
decommissioning of private wells (if applicable). These matters are inherently
individualized, and the plaintiffs have not presented a class-wide mechanism for
accounting for each of these factors at the same time.
99
Mot. for Class Cert. (doc. no. 255-1) at 24.
40
These individual issues will predominate over common ones since they form the
crux of the liability determination. See Stafford v. Shea, 2006 WL 8418247, at *1 (N.H.
Oct. 19, 2006) (“Essential to a finding of a private nuisance is a determination that the
interference complained of is substantial and that it is unreasonable.”). The court
therefore denies certification as to the nuisance claim.
iii.
Liability – negligence and negligent failure to warn
Finally, the plaintiffs assert that Saint-Gobain acted negligently by emitting PFAS
during facility operations; inadequately investigating and mitigating the contamination;
and failing to warn of the contamination and associated risks. To prove its negligence
and negligent failure to warn claims, the plaintiffs must “establish that the defendant
owed a duty to the plaintiff, breached that duty, and that the breach proximately caused
the claimed injury.” Est. of Joshua T., 150 N.H. at 407 (internal citation omitted); see
also Thibeault v. Campbell, 136 N.H. 698, 701 (1993) (“In order for one’s conduct to
constitute tortious negligence, it must be in breach of an existing duty and create a
foreseeable risk of harm to someone to whom that duty is owed.”).
The initial issue is whether Saint-Gobain owes and breached a duty of care. “In
general, anyone who does an affirmative act is under a duty to others to exercise the care
of a reasonable [person] to protect them against an unreasonable risk of harm to them
arising out of the act.” Coan v. New Hampshire Dep’t of Env’t Servs., 161 N.H. 1, 8
(2010) (quoting Restatement (Second) of Torts § 302 comment a at 82 (1965)).
Importantly, “not every risk that might be foreseen gives rise to a duty to avoid a course
of conduct; a duty arises because the likelihood and magnitude of the risk perceived is
41
such that the conduct is unreasonably dangerous.” Thibeault, 136 N.H. at 701. Similarly,
a defendant has a duty to warn if it has “reason to apprehend the danger to those not
instructed.” Trombly v. H.P. Hood & Sons, 84 N.H. 119 (1929); see also Dobek v.
Amoskeag Mfg. Co., 79 N. H. 360, 361 (1920) (“Precautionary instruction is a duty only
so far as there is reason to apprehend danger to those not instructed.”).
The existence of a duty, then, turns on two issues that are susceptible to class-wide
proof: the foreseeability and magnitude of risk of harm to the class resulting from SaintGobain’s emissions. As explained supra Section III.E.i, foreseeability depends on classwide proof regarding Saint-Gobain’s knowledge of its own emissions, the toxicity of
PFOA, and the pathways through which those emissions cause groundwater
contamination through a given area. The magnitude of risk is also informed by common
evidence regarding the volume of PFOA emissions from the facility, and, again, the
harmful effects of PFOA and the extent to which it is likely to travel based on area-wide
modeling.
If the existence of a duty to the putative class members is established, its breach
can also be proven through common evidence of Saint-Gobain’s actions with respect to
emissions, mitigation, and warning the public. For example, Saint-Gobain’s knowledge
of the contamination risks from its emissions have not varied since at least 2003, as
discussed supra Section III.E.i, yet the record indicates that it continued emitting
hundreds of pounds of PFOA through 2006, and it did not provide notification of its
emissions to NHDES until 2016. Breach would also be proven through evidence of the
geographic scope of PFOA contamination in the class members’ groundwater attributable
42
to Saint-Gobain. Again, the expert opinions of the plaintiffs have provided class-wide
evidence on this issue by relying on area-wide models to conclude that the groundwater
contamination throughout the class areas is attributable to Saint-Gobain, at least in part.
Next, to prove their negligence claims, the plaintiffs must establish that SaintGobain’s actions were a proximate cause of the class members’ injuries. A defendant’s
conduct is a proximate cause if it is both the “cause-in-fact,” meaning that “the injury
would not have occurred without the negligent conduct,” and “the legal cause,” meaning
that it “was a substantial factor in bringing about the harm.” Est. of Joshua T., 150 N.H.
at 407-08 (internal citations and quotations omitted). The causation inquiry focuses on
whether the defendant’s negligence “caused or contributed to cause the accident, . . . not
on whether the defendant's negligence was the sole cause or the proximate cause.”
Brookline School Dist. v. Bird, Inc., 142 N.H. 352, 355 (1997) (emphasis in original)
(internal citations omitted).
To establish that the defendant’s conduct is the cause-in-fact, “[t]he plaintiff ‘must
produce evidence sufficient to warrant a reasonable juror’s conclusion that the causal link
between the negligence and the injury probably existed.’” Est. of Joshua T., 150 N.H. at
407-08 (2003). The plaintiffs assert that they can prove causation on a class-wide basis
through their experts’ opinions that Saint-Gobain’s emissions contributed to groundwater
contamination where present across the class areas. As discussed supra, Section III.C.,
Saint-Gobain does not adequately rebut this assertion by establishing that individualized
proof is necessary to demonstrate that Saint-Gobain contributed to the presence of PFOA
contamination within the class areas, and Saint-Gobain’s challenges to the plaintiffs’
43
area-wide models are common to the class. Thus, the issue of whether Saint-Gobain is
the cause-in-fact of the harm to the class members is susceptible to class-wide resolution.
In order to determine whether the defendant’s conduct is the legal cause, or a
substantial factor, in the harm, the court should consider “the number of other factors
which contribute in producing the harm and the extent of the effect which they have in
producing it[.]” Restatement (Second) of Torts § 433 (1965). In other words, the
proximate cause inquiry requires analysis of alternative sources of PFOA in the class
areas. As previously discussed, the plaintiffs’ experts agree that a number of sources may
have contributed to localized contamination in the class areas, but they do not explain the
contamination seen throughout the class areas. The plaintiffs ‘experts do not model or
quantify the impacts of these alternative sources. Saint-Gobain also offers a few expert
reports that discuss the presence of alternative sources of PFOA in the class areas, though
they do not quantify the sources’ contributions throughout the class areas or at particular
locations, either. These experts’ opinions are briefly summarized below.
Michael Mobile holds a Ph.D. in civil engineering and specializes in quantitative
hydrogeology and hydrology, “solute fate and transport, and water resources
management.”100 Mobile asserted that the former Harcros Chemicals, Incorporated site
and the former New Hampshire Plating Company Superfund site were located in
Merrimack and used known contaminants in their operations. Further, according to
Mobile, elevated levels of PFOA have been detected in the groundwater near these sites.
100
2019 Expert Report of Michael Mobile (doc. no. 418-1) at 55, 57.
44
Mobile concluded that this “provides strong evidence that [the sites] represent . . .
source[s] of PFAS, including PFOA, to groundwater within the proposed class area that
is distinct from . . . Saint-Gobain air emissions.”101
In a joint report, engineers John Connor and Sorab Panday, Ph.D., opined on the
sources of PFOA within the MVDWW water wells, and they concluded that “the
documented presence of [other] potential sources [of PFOA], the spatial pattern of PFOA
concentrations in the study area, the chemical composition of the PFAS mixture in
groundwater, and known PFOA sources in the capture zones of the MVD[WW] wells” all
“support the existence of PFOA sources to groundwater other than [the Saint-Gobain
facility].”102
Finally, Lyle Chinkin holds B.S. and M.S. degrees in atmospheric science and has
worked in meteorology, air quality, air pollution, and emissions modeling. He criticized
the plaintiffs’ experts’ “underlying assumption that the Merrimack facility is the single
facility . . . that individually explains observed PFAS contamination throughout the
proposed class areas.”103 Chinkin pointed out that the NHDES is investigating other
potential sources of PFOA emissions “in and around the proposed class areas, . . . which
both individually and collectively may contribute to the observed PFAS concentrations”
in the class areas.104 One of these potential other sources is TCI, which Sullivan also
101
Id. at 20, 22.
102
2021 Expert Report of John Connor and Sorab Panday (doc. no. 356-4) at 33.
103
2021 Expert Report of Lyle Chinkin (doc. no. 356-3) at 10.
104
Id. at 9 (emphasis added).
45
agrees may have contributed to contamination in the class areas.105 Chinkin provided a
map depicting that “the PFOA deposition pattern from TCI clearly overlaps with the . . .
proposed class areas.”106
Chinkin also concluded that the variability of PFOA concentration across the class
areas, as exhibited in water sampling data, “is not consistent with a single source
impacting the proposed class areas” and “do[es] not support Saint-Gobain as the main
source of PFAS” in the class areas.107 He asserted that a “robust, property-by-property
analysis is required to reliably determine the sources contributing to PFAS concentrations
on any given property,” and an “aggregate impact assessment” is necessary to
individually model the contributions of each source or facility to contamination within
the relevant areas.”108
These expert opinions lend some, credible support to the possibility that
individualized or site-specific analysis is needed to determine the extent to which other
sources contributed to contamination in parts of the class areas, and whether SaintGobain’s emissions are a substantial factor among those sources at particular locations.
These opinions do not defeat predominance on the issue of Saint-Gobain’s liability for
See June 4, 2021 Deposition Tr. of David Sullivan (doc. no. 271-13) at 222:3-7 (“Q. Do you
agree that some of the PFOA from the TCI Amherst facility was likely deposited within the
proposed class areas in this case? A. Some would have been deposited within the Saint-Gobain
class geographic area, yes.”).
105
106
2021 Expert Report of Lyle Chinkin (doc. no. 356-3) at 21.
107
Id. at 18.
108
Id. at 9, 19-20.
46
negligence, however, for at least three reasons. First, none of Saint-Gobain’s experts
provides or uses a property- or site-specific method to identify locations in which SaintGobain’s emissions were not a substantial factor in contamination. This strongly
suggests that Saint-Gobain intends to argue against causation by asserting, as reflected in
its experts’ opinions, that the plaintiffs’ evidence is simply incomplete or inadequate
because it does not measure or model the contributions of other sources of PFOA
emissions. This argument is common to the class. In other words, if successful, SaintGobain’s argument as to the plaintiffs’ “failure of proof on th[is] common question” of
causation “likely would . . . end[] the litigation” as to the negligence claim “and thus
would not . . . cause individual questions . . . to overwhelm questions common to the
class.” Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 457 (2016) (internal quotations
and alterations omitted).
Second, it is possible that Saint-Gobain plans to assert its defense against
causation by using area-wide models, such as those employed by Barr and the plaintiffs’
experts, to map out regions in which other sources caused groundwater contamination
and Saint-Gobain did not substantially contribute. If Saint-Gobain pursues this area-wide
approach, again, its defense would be common to the class or manageable in the class
action format.
Finally, even if Saint-Gobain does employ property- or site-specific analysis to
support its position on causation, “individualized issues of causation do not preclude
class certification” where “the proof as to other elements of negligence will be classwide.” Collins v. Olin Corp., 248 F.R.D. 95, 104 (D. Conn. 2008) (citing cases in which
47
classes were certified despite individual issues going to causation). In short, even if
individual inquiries concerning causation arise, they would not overwhelm the common
issues concerning duty and breach. The court concludes that the predominance element
is satisfied with respect to Saint-Gobain’s liability for the torts of negligence and
negligent failure to warn.
iv.
Damages
The plaintiffs seek compensatory and enhanced compensatory damages for non-
economic losses, including discomfort, annoyance, and loss of use and enjoyment of their
properties. They also request economic damages for losses related to “the decreased
value of their properties, the need for and the cost of mitigating the contamination, and[,]
for private well owners, the increased cost” associated with switching to municipal
water.109 The record indicates that individual issues predominate as to each of these
damages theories, precluding certification as to damages issues.
To begin, the plaintiffs contend that the calculation of non-economic damages
turns on common issues because the “annoyances” caused by the contamination “are
judged by a reasonable person standard.”110 The plaintiffs then cite a number of cases
that confirm that liability for nuisance claims is judged under the reasonable person
standard. The plaintiffs do not cite authority indicating that damages are accordingly
109
Mot. for Class Cert. (doc. no. 255-1) at 25.
110
Id. at 46.
48
assessed in a common manner without consideration of individual circumstances, nor
does the court find that such a conclusion is supported by the law.
Next, the plaintiffs assert that the non-economic damages are susceptible to
common proof because the class members share the same concerns regarding the toxicity
and effect of PFOA contamination, and they were or are forced to take the same measures
to respond to the contamination, including switching to municipal water sources and
disclosing the contamination to prospective buyers. Even assuming that putative class
members all share these burdens due to the PFOA contamination, this would not result in
equivalent damages awards for each class member, or a common mechanism for
allocating non-economic damages. Rather, each class member’s damages would turn on
multiple individualized factors including the extent of contamination, the amount of such
contamination that is attributable to Saint-Gobain as opposed to other sources, the
purpose and use of the property, the class members’ period of occupancy or ownership
and whether that preceded or followed mitigation efforts, and the success of mitigation
efforts. Such individualized issues render class certification as to the plaintiffs’ noneconomic damages improper.
Calculation of the plaintiffs’ economic damages also require numerous,
individualized assessments. The plaintiffs’ experts, Carr and Bell, estimated aggregate
economic damages, or Saint-Gobain’s total liability to the class, associated with the
reduction in property values and, for private well owners, the cost of securing
replacement water. Courts have permitted a class to proceed using aggregate damage
calculations, “so long as the . . . calculation is based on reasonable methodology and the
49
individual damage calculations that follow can be made according to a common
methodology.” 4 Newberg and Rubenstein on Class Actions § 12:2 (6th ed.); see, e.g., In
re Nexium (Esomeprazole) Antitrust Litig., 296 F.R.D. 47, 59 (D. Mass. 2013) (finding
that the predominance requirement was satisfied as to damages issues where the plaintiffs
presented average or aggregate damage measurements which could vary among class
members, and “individual class members [could] calculate their recovery” using “readily
available” and “precise sales data”); New England Carpenters Health Benefits Fund v.
First DataBank, Inc., 248 F.R.D. 363, 372 (D. Mass. 2008) (acknowledging the putative
class’s reasonable model for “assessing aggregate damages,” certifying a class of
individuals for whom “damage allocation poses no predominance or manageability
problems,” and certifying another damages class only through 2003, after which point
“questions of individual mitigation would certainly loom large” in allocation
determinations).
In denying Saint-Gobain’s motion to exclude Carr and Bell’s opinions, the court
has already determined that the experts relied on reasonable methodologies to
demonstrate quantifiable damages to the proposed class. Thus, the court turns its
attention to the conversion from aggregate to individual damages under each category of
economic loss, beginning with replacement water costs. Most of the variables that Carr
identified as determinative of replacement water costs vary across the class and require
individualized assessment. Indeed, Carr asserted during his deposition that his aggregate
damage calculation “doesn’t necessarily follow to each address because each individual
address can have a different set of circumstances,” including differing “consumption
50
levels.”111 Also, as previously noted, one service provider who informed Carr’s estimate
of annual private well maintenance and operation costs asserted that the location, filters,
and age of a well can affect maintenance needs and costs, and Carr testified that
individual property owners’ vigilance can impact the frequency with which they test their
wells. Perhaps unsurprisingly, the plaintiffs have not provided a common method for
accounting for this variability when allocating the aggregate damages that Carr
calculated.
Class members’ damages related to loss in property value also depend upon, and
vary based on, individual factors including the extent and duration of contamination
during the class member’s property ownership period, the timing and effectiveness of
mitigation efforts, the portion of the contamination attributable to Saint-Gobain as
opposed to other sources, and whether the property owner purchased or sold a property at
an inflated price during the class period. Accord LaBauve v. Olin Corp., 231 F.R.D. 632,
677 (S.D. Ala. 2005) (concluding, in an environmental contamination case, that damages
associated with reduced property values “are not amenable to computation by an easy or
essentially mechanical method” but “will hinge on property-specific determinations”
including whether the property is contaminated, “the extent of its contamination,” “the
genesis and duration of the contamination,” and “the portion of that contamination
attributable to [the defendant].”). Consistent with this, during his deposition, Bell agreed
111
May 26, 2021 Deposition Tr. of Jeffrey Carr (doc. no. 297-3) at 35:16-36:3.
51
that a variety of property-specific conditions can affect the impact of contamination on
property value, including the amount of PFOA contamination and remediation efforts.112
To the extent that the plaintiffs argue that Bell’s aggregate damage calculation
adequately addresses such individual variability, the court disagrees. For example, while
Bell’s model distinguishes between properties that have contamination levels above or
below the MCL, it does not further differentiate properties within those general
categories, nor does it account for the amount of contamination attributable only to SaintGobain. Such factors should be considered in the allocation of individual damages, even
if their omission is not fatal to an aggregate damage model.
In an attempt to secure certification as to damages despite the presence of these
core, individual issues, the plaintiffs assert, without much elaboration, that “[t]he
aggregate damages can be fairly distributed . . . in proportion to a particular property tax
assessed value to the sum of the assessed values.”113 During oral argument, plaintiffs’
counsel did not meaningfully elaborate upon this or another method of allocation, stating
instead that the plaintiffs are “going to propose an allocation plan . . . if there’s an award,
. . . based on the facts [present] at [that] time.”114 These vague statements fall far short of
satisfying the plaintiffs’ burden under the predominance standard. See Allied Orthopedic
Appliances, Inc. v. Tyco Healthcare Grp. L.P., 247 F.R.D. 156, 176 (C.D. Cal. 2007) (“it
is simply not enough that Plaintiffs merely promise to develop in the future some
112
June 26, 2019 Deposition Tr. of Randall Bell (doc. no. 299-10) at 169:5-21, 176:6-9.
113
Pls.’ Reply (doc. no. 292) at 45.
114
Dec. 1, 2022 Afternoon Hearing Tr. (doc. no. 429) at 31:18-20.
52
unspecified workable damage formula. A concrete, workable formula must be described
before certification is granted.” (internal quotations omitted)).
Thus, based on the record presently before it, the court concludes that the plaintiffs
lack a common or manageable method for allocating damages to individual class
members, precluding certification as to damages. The court is convinced, however, that
several core liability issues can be proven on a class-wide basis, and these common issues
predominate over the individualized inquiries pertaining to damages. See Smilow, 323
F.3d at 40 (“Where, as here, common questions predominate regarding liability, then
courts generally find the predominance requirement to be satisfied even if individual
damages issues remain”); Johnson v. Nextel Communications Inc., 780 F.3d 128, 138 (2d
Cir. 2015) (“Common issues—such as liability—may be certified, consistent with Rule
23, even where other issues—such as damages—do not lend themselves to class-wide
proof.”); Allapattah Services, Inc. v. Exxon Corp., 333 F.3d 1248, 1261 (11th Cir. 2003)
(“[N]umerous courts have recognized that the presence of individualized damages issues
does not prevent a finding that the common issues in the case predominate.”); Sterling v.
Velsicol Chemical Corp., 855 F.2d 1188, 1197 (6th Cir. 1988) (“No matter how
individualized the issue of damages may be, these issues may be reserved for individual
treatment with the question of liability tried as a class action.”).
Accordingly, the case will be bifurcated to accommodate for the individualized
nature of the damages analysis. The first phase will focus on liability determinations and
will be managed as a class action. Assessment of damages will follow. Further
53
discovery and findings from the liability phase will inform the format of the damages
phase.
F.
Superiority
In addition to predominance, Rule 23(b)(3) requires that a “class action [be]
superior to other available methods for fairly and efficiently adjudicating the
controversy.” Fed. R. Civ. P. 23(b)(3). Absent the class action vehicle, individual
plaintiffs would be forced to prove the same factual issues concerning, for example, the
presence of contamination on their property, Saint-Gobain’s actions with respect to
emissions and mitigation, and the hazards associated with PFOA. This would be both
inefficient and costly, given that these issues are suitable to class-wide proof and require
multiple expert opinions and extensive expert analysis. Thus, in this case, a class action
“achieve[s] economies of time, effort, and expense, and promote[s] . . . uniformity of
decision as to persons similarly situated, without sacrificing procedural fairness or
bringing about other undesirable results.” Amchem, 521 U.S. at 615.
IV.
Conclusion
For the reasons stated above, the plaintiffs’ motion for class certification115 is
GRANTED in part and DENIED in part. The court certifies a liability class with respect
to the trespass, negligence, and negligent failure to warn claims, but denies certification
115
Doc. no. 255.
54
as to the nuisance claim. If and when liability is established, the court will proceed to the
damages phase of the case.
SO ORDERED.
Joseph N. Laplante
United States District Judge
Dated: December 29, 2023
cc: Counsel of Record
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