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Rowe v. E.I. Dupont De Nemours and Co.

December 23, 2008


The opinion of the court was delivered by: Bumb, United States District Judge

[06-1810, Dkt. No. 162] [06-3080, Dkt. No. 162]



This matter comes before the Court upon two motions for class certification filed by the plaintiffs in each case. Although the Rowe and Scott classes each seek separate certification, the Court will address both motions together because they involve nearly identical legal issues. However, where necessary, the Court will set forth the differences between the classes, their claims, and their motions for class certification.


These cases arise from Defendant E.I. du Pont de Nemours and Company's ("DuPont") release of certain perfluorinated materials, known as "C-8" or "PFOA", from its Chambers Works Plant in Salem County, New Jersey. (Rowe Sec. Am. Compl. ¶ 1; Scott Sec. Am. Compl. ¶ 14). Plaintiffs*fn1 allege that the PFOA released from the Chambers Works Plant has contaminated the drinking water supply of the Penns Grove Water Supply Company ("PGWS").*fn2 (Rowe Sec. Am. Compl. ¶ 1; Scott Sec. Am. Compl. ¶ 14). Specifically, Plaintiffs claim that the levels of PFOA detected in the PGWS water supply are higher than the .04 parts per billion ("ppb") preliminary safety guideline established by the New Jersey Department of Environmental Protection ("NJDEP"). (Rowe Sec. Am. Compl. ¶¶ 59, 60; Scott Sec. Am. Compl. ¶¶ 11, 12).

As described by the NJDEP, "PFOA is a synthetic (man-made) chemical used in the manufacture of several commercially important products." (Determination of Perfluorooctanoic Acid (PFOA) in Aqueous Samples, Final Report, NJDEP Division of Water Supply (January 2007) at 1, DuPont Opp., Ex. B8). It is "very persistent in the environment and has been found at very low levels both in the environment and in the blood of the general U.S. population." (Id.).

DuPont has used PFOA in its manufacturing operations at its Chambers Works plant since the 1950s. (Rowe Sec. Am. Compl. ¶ 27). Specifically, DuPont has created PFOA "as an unintended byproduct in trace quantities as a result of certain chemical reactions in the various processes for manufacturing fluorotelemor-based products." (DuPont Responses to Rowe Interrogs. 3-8, Ex. 101 to Blecher Aff. in support of Rowe Motion (hereinafter "First Blecher Aff.")). As a result of these operations, DuPont has released PFOA from its Chambers Works plant into the surrounding air and water. (See DuPont Responses to Rowe Requests for Admissions 6-11, Ex. 99 to First Blecher Aff.). Recent testing of the PGWS water wells has revealed PFOA levels as high as .190 ppb. (Rowe Sec. Am. Compl. ¶ 59).

At this point, the human health effects of PFOA appear to be uncertain. However, some studies have shown that exposure to PFOA may cause adverse health effects, such as liver disease, cancers, and cholesterol abnormalities. (See Rowe Motion at 14; Rowe Reply at 3, n. 7; Supplemental Expert Report of David G. Gray, Ph.D., dated Nov. 4, 2008, ("Gray Report") Rowe Hearing Ex. 9; Second Supplemental Expert Report of Barry S. Levy, M.D., M.P.H. ("Levy Report"), Ex. 56 to First Blecher Aff.). Additionally, the evidence indicates that PFOA is biopersistent and bioaccumulative, meaning that it is eliminated very slowly from the blood and, thus, will accumulate in an exposed person's blood over time. (See Gray Report at 23-24; Levy Report at 8). Given these concerns, the NJDEP conducted its own research and ultimately recommended that ".04 ppb be used as preliminary health-based guidance for PFOA in drinking water."*fn3 (NJDEP Memo re: Guidance for PFOA in Drinking Water at Pennsgrove Water Supply Company ("NJDEP Memo"), DuPont Opp., Ex. B18).


A. Rowe Class

On April 18, 2006, Richard Rowe, Nicholas Dagostino, Mary Carter, Michelle Tomarchio, Regina Trout, Allen Moore, Marva Johnson, Catherine Lawrence, and Kathleen Lemke (the "Rowe Plaintiffs") filed a class action complaint against DuPont in this Court. The Rowe Plaintiffs filed an Amended Complaint on April 28, 2006, and a Second Amended Complaint on February 27, 2007 [Dkt. No. 27]. The Second Amended Complaint contains six counts against DuPont: (1) negligence; (2) gross negligence, reckless, willful and wanton conduct; (3) private nuisance; (4) past and continuing trespass; (5) past and continuing battery; and (6) medical monitoring. The Rowe Plaintiffs seek relief in the form of medical monitoring, compensatory and punitive damages, attorneys' fees, pre-judgment and post-judgment interest, and appropriate equitable and injunctive relief including "providing notice and medical monitoring relief to the Plaintiffs and the class and to abate and/or prevent the release and/or threatened release of [PFOA]." (Rowe Sec. Am. Compl. at 31).

After a lengthy discovery period, the Rowe Plaintiffs filed the present motion for class certification on April 30, 2008. [Dkt. No. 162].

B. Scott Class

The Scott class action was originally filed against DuPont in the Superior Court of New Jersey, Chancery Division, Salem County, on June 16, 2006, by former Plaintiff Donald Coles. DuPont removed the action to this Court on July 7, 2006, and the Rowe and Scott actions were then consolidated for discovery purposes only on September 25, 2006. [Dkt. No. 26]. On January 22, 2007, Plaintiff Donald Coles filed an Amended Complaint adding a second named Plaintiff, Misty Scott, to the class action complaint. [Dkt. No. 36]. On April 19, 2007, the Coles/Scott Plaintiffs filed a motion for class certification. [Dkt. No. 54]. After a hearing on May 15, 2007, this Court denied that certification motion as premature. [Dkt. No. 69].

After several months of discovery, Plaintiff Coles filed a motion for voluntary dismissal on August 16, 2007. [Dkt. No. 92]. Plaintiff Coles was subsequently dismissed from the case on September 24, 2007. Ms. Scott, the sole remaining named Plaintiff (the "Scott Plaintiff"), filed a Second Amended Complaint on behalf of the proposed class on Oct 18, 2007 [Dkt. No. 123]. The Second Amended Complaint contains six counts against DuPont: (1) medical monitoring; (2) strict liability; (3) private nuisance; (4) public nuisance; (5) negligence; and (6) a violation of the New Jersey Environmental Rights Act. The Scott Plaintiff seeks relief in the form of abatement, installation of community-wide filtration systems, medical monitoring, "damages incurred as a result of the conduct alleged herein, to include pre-judgment and post-judgment interest," and attorneys' fees. (Scott Sec. Am. Compl. at 16-17). The Scott Plaintiff filed the present motion for class certification on April 30, 2008. [Dkt. No. 162].

C. Certification Hearing

After reviewing the parties' submissions, the Court ordered oral argument and requested that the parties present their expert witnesses for questioning by the Court. Accordingly, on November 10 and 20, 2008, the Court heard argument from counsel as well as the testimony of Dr. David Gray and Dr. Barry Levy (experts for the Rowe Plaintiffs), and Dr. Philip Guzelian (expert for DuPont). The Scott Plaintiff did not present any expert at the certification hearing.


Class certification is governed by Rule 23 of the Federal Rules of Civil Procedure. In order to be certified, "a class must satisfy the prerequisites of Rule 23(a) and the 'parties seeking certification must also show that the action is maintainable under Rule 23(b)(1), (2), or (3).'" Barnes v. American Tobacco Co., 161 F.3d 127, (3d Cir. 1998) (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997). The party seeking class certification bears the burden of proving that each of the requirements under Rule 23 has been met. Baby Neal v. Casey, 43 F.3d 48, 55 (3d Cir. 1994).

The district court must perform "a rigorous analysis" to satisfy itself that the prerequisites of Rule 23 have been met. Beck v. Maximus, Inc., 457 F.3d 291, 297 (3d Cir. 2006). However, ultimately, the court has discretion under Rule 23 to certify a class. Id. Moreover, in the Third Circuit, courts are instructed to give Rule 23 a liberal construction. Eisenberg v. Gagnon, 766 F.2d 770, 785 (3d Cir. 1985) ("the interests of justice require that in a doubtful case ... any error, if there is to be one, should be committed in favor of allowing a class action").

In addition to the requirements of Rule 23(a) and (b), part (c) of Rule 23 states that any certification order entered by the Court must "define the class and the class claims, issues, or defenses..." Fed. R. Civ. P. 23(c)(1)(B) (emphasis added). Specifically, the district court's certification order must include "a clear and complete summary of those claims, issues or defenses subject to class treatment." Wachtel v. Guardian Life Ins. Co. of America, 453 F.3d 179, 184 (3d Cir. 2006). In Wachtel, the Third Circuit noted that "current practice often falls short of that standard." Id. at 185. Specifically, the Court of Appeals stated,

[a]lthough examples of common claims, issues, or defenses presented by the case may be discussed as part of the court's commonality, typicality, or predominance analysis, certification orders are most often devoid of any clear statement regarding the full scope and parameters of the claims, issues or defense to be treated on a class basis as the matter is litigated.

Id. at 185.

To avoid this common pitfall, a district court must set forth a clear and complete summary of the claims, issues or defenses subject to class treatment. However, "a court cannot do so in a vacuum - engaging in superficial analysis of facts and issues and identifying which facts and issues appear to be, broadly speaking, 'common' versus 'individual.'" Hohider v. United Parcel Serv., Inc., 243 F.R.D. 147, 185-86 (W.D. Pa. 2007). Instead, a court must scrutinize "the Rule 23 certification requirements in light of the specific legal claims at issue in the case and what adjudication of those claims would require." Id. at 186 (emphasis added).


A. Plaintiff's Claims

In this case, neither the Rowe Plaintiffs nor the Scott Plaintiff have offered any analysis to assist this Court in setting forth the actual claims, issues, or defenses that are subject to common proof, with the exception of medical monitoring. It seems that both potential classes have focused all their attention on the medical monitoring aspect of the case and completely ignored the other claims listed in their complaints: negligence, nuisance, trespass, battery, strict liability, and the New Jersey Environmental Rights Act. Despite the abundance of paper they have submitted, Plaintiffs have failed to provide any analysis of these claims. Although Plaintiffs are not required to prove the underlying merits of their claims at this juncture, they are at least required to show that these claims are subject to common proof. This they have not done. Handicapped by Plaintiffs' failure to address these claims, the Court is unable to perform a rigorous analysis of them, as it must. Accordingly, the Court will deny certification on these claims without prejudice and discuss only the medical monitoring issue and whether class treatment is proper as to that issue.*fn4

A claim for medical monitoring "seeks to recover the cost of periodic medical examinations intended to monitor plaintiffs' health and facilitate early diagnosis and treatment of disease caused by plaintiffs' exposure to toxic chemicals." Ayers v. Twp. of Jackson, 106 N.J. 557, 599 (1987). It is appropriate where a plaintiff "exhibits no physical injury, but nevertheless requires medical testing as a proximate result of defendant's negligent conduct." Player v. Motiva Enterprises, LLC, 2006 WL 166452 at *9 (D.N.J. Jan. 20, 2006).

Under New Jersey law, in order to hold DuPont liable for the cost of Plaintiffs' medical monitoring, Plaintiffs must demonstrate, through reliable expert testimony predicated upon the significance and extent of exposure to chemicals, the toxicity of the chemicals, the seriousness of the diseases for which individuals are at risk, the relative increase in the chance of onset of disease in those exposed, and the value of early diagnosis, that such surveillance to monitor the effect of exposure to toxic chemicals is reasonable and necessary.

Ayers v. Twp. of Jackson, 106 N.J. 557, 606 (1987). As the New Jersey Supreme Court further explained, medical monitoring expenses "may only be awarded if a plaintiff reasonably shows that medical surveillance is required because the exposure caused a distinctive increased risk of future injury, and would require a course of medical monitoring independent of any other that the plaintiff would otherwise have to undergo." Theer v. Philip Carey Co., 133 N.J. 610, 628 (1993). Thus, in this case, to obtain medical monitoring on a class-wide basis, Plaintiffs must show the following:

(1) class members suffered significant exposure to PFOA;

(2) PFOA is toxic;

(3) the diseases caused by exposure to PFOA are serious;

(4) class members are at a distinctive increased risk of disease due to their exposure to PFOA;

(5) early diagnosis of these diseases is valuable; and

(6) medical monitoring is reasonable, necessary and different than any other monitoring the class members would otherwise have to undergo.

As discussed above, at the certification stage, Plaintiffs do not have to prove that they will succeed on each of these elements. Rather, to warrant class certification for purposes of medical monitoring, Plaintiffs must show that these elements can be proven on a class-wide basis.

B. Rule 23(a) Requirements

Rule 23(a) contains four requirements: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation.*fn5

The Court will discuss each of these in turn with respect to Plaintiffs' requests for medical monitoring.

1. Numerosity

The numerosity element requires that the class be "so numerous that joinder of all members is impracticable." Fed. R. Civ. P. 23(a). Here, the proposed Rowe class definition covers thousands of residential PGWS water customers and will include approximately 14,000 to 15,000 people in total. (Rowe Motion at 35; see also Nov. 10, 2008 Hearing Tr. 19:4-9). Similarly, the proposed Scott class numbers over 10,000 people. (Scott Motion at 27). DuPont does not dispute the numerosity of either class. Although there is no minimum number required, "generally if the named plaintiff demonstrates that the potential number of plaintiffs exceeds 40, the first prong of Rule 23(a) has been met." Stewart v. Abraham, 275 F.3d 220, 226-27 (3d Cir. 2001). Given the evidence presented in this case, the Court finds that both the Rowe Plaintiffs and the Scott Plaintiff have satisfied the numerosity requirement.

2. Commonality

The second prerequisite is commonality, which requires that there be "questions of law or fact common to the class." Fed. R. Civ. P. 23(a). This does not mean that all the factual and legal questions in the case must be identical for all proposed class members. To the contrary, "[t]he commonality requirement will be satisfied if the named plaintiffs share at least one question of fact or law with the grievances of the prospective class." Baby Neal, 43 F.3d at 56. Although the commonality requirement is often thought to be easily met, the Court notes that "the commonality barrier is higher in a personal injury damages class action ... that seeks to resolve all issues, including non-common issues, of liability and damages." Georgine v. Amchem Prods., Inc., 83 F.3d 610, 627 (3d Cir. 1996).

Here, Plaintiffs claim that there is "an abundance of common factual and legal issues, including DuPont's tortious release of C-8 from its NJ Plant, contamination of PGWS and private residential well water resulting in significant Class-wide exposure, the hazardous nature of C-8, the increased risk of disease from exposure, the availability of biomonitoring and medical monitoring for diseases linked to C-8 exposure, DuPont's obligation to cease releasing C-8, and DuPont's obligation to remediate the contaminated water supply." (Rowe Motion at 37; see also Scott Motion at 29).

In response, DuPont argues that there are numerous individual issues which preclude fulfillment of the commonality prerequisite. For instance, DuPont contends that Plaintiffs cannot show significant PFOA exposure on a class-wide basis because of variations in individuals' water consumption habits and background exposure form other sources, as well as variations in the level of PFOA within the PGWS distribution system (both physically and temporally). (DuPont Opp. at 41-45). Similarly, DuPont argues, Plaintiffs cannot demonstrate on a class-wide basis that class members have a ...

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