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

July 29, 2009

RICHARD A. ROWE, ET AL., INDIVIDUALLY AND ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
E.I. DUPONT DE NEMOURS AND COMPANY, DEFENDANT.
MISTY SCOTT, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
E.I. DUPONT DE NEMOURS AND COMPANY, DEFENDANT.



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

[06-1810, Dkt. Nos. 281, 289] [06-3080, Dkt. No. 256]

OPINION

I. INTRODUCTION

This matter comes before the Court upon three motions: the Rowe Plaintiffs' supplemental motion for class certification of medical monitoring issues [Dkt. No. 281 (06-1810)] and two motions (one by the Rowe Plaintiffs [Dkt. No. 289 (06-1810)] and one by the Scott Plaintiff [Dkt. No. 256 (06-3080)] (collectively, "Plaintiffs")) for leave to file out-of-time class certification motions as to their common law claims. These motions have been filed in accordance with the Court's Order, dated December 23, 2008. Because the parties are familiar with the factual and procedural background of these cases, the Court will proceed directly to its analysis of the pending motions.

II. STANDARD OF REVIEW

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. If certification is warranted, 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); Fed. R. Civ. P. 23(c)(1)(B).

III. ANALYSIS

A. Certification of Medical Monitoring Issues

Having been denied class certification of their medical monitoring claim, the Rowe Plaintiffs now seek class certification of certain issues relating to that claim pursuant to Rule 23(c)(4).*fn1 That rule provides, "[w]hen appropriate, an action may be brought or maintained as a class action with respect to particular issues." Fed. R. Civ. P. 23(c)(4). However, certification of particular issues under Rule 23(c)(4) is only proper if the other requirements of Rule 23(a) and (b) are first met. 7AA C. Wright, A. Miller & R. Kane, Federal Practice and Procedure § 1790, at 590 (2005)(citing Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1997)). The Court has already found (in its prior Opinion [Dkt. No. 263]) that Rowe Plaintiffs have met the requirements of part (a). As to part (b), Rowe Plaintiffs seek class certification pursuant to Rule 23(b)(2), which states that "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole[.]" Fed. R. Civ. P. 23(b)(2).*fn2

Defendant argues that because the Court has already ruled that class-wide medical monitoring is not proper*fn3 under 23(b)(2), Rowe Plaintiffs are precluded from relying on 23(b)(2) as a basis for issue certification under 23(c)(4). This Court agrees. As the proposed Rowe class is currently defined (i.e., to include all individuals who have potentially been significantly exposed as opposed to all individuals who have actually been significantly exposed), the Court has already found that medical monitoring is not appropriate for the "class as a whole." This is because some of the proposed class members may very well have suffered significant exposure and some may not.*fn4 To the extent possible, Rowe Plaintiffs should have redefined the class based on actual exposure. See, e.g., In re Diet Drugs, 1999 WL 673066 at *4 (E.D. Pa. Aug. 26) (proposed amended complaint defined class based on actual exposure, limiting membership to "those persons who have taken [diet drugs] 'for at least thirty cumulative days during the period between May 1, 1992 and September 15, 1997...'"). The Court recognizes that such a definition would have required much more work on the part of counsel to determine which individuals have actually been significantly exposed to PFOA, but failure to undertake such efforts has been fatal.*fn5 Because the medical monitoring relief Rowe Plaintiffs seek is not applicable to the "class as a whole" as that class is currently defined, they have not met the 23(b)(2) requirement and, thus, certification under 23(c)(4) would be improper.

Moreover, even if the class were redefined based on actual exposure, the Court questions whether "certification of a class limited to the determination of liability" would be appropriate in this case. Holmes v. Pension Plan of Bethlehem Steel Corp., 213 F.3d 124, 137 (3d Cir. 2000) (denying certification because "the issue of liability itself requires an individualized inquiry into the equities of each claim"). The Third Circuit recently addressed the issue of class certification as to liability issues in Hohider v. United Parcel Service, Inc., 2009 WL 2183267 (3d Cir. July 23, 2009). In that case, an employer appealed the District Court's certification of a nationwide class of employees asserting a pattern or practice of unlawful discrimination under the Americans with Disabilities Act (ADA). To warrant relief under the ADA, a plaintiff must show that she is a "qualified individual," a determination that both the District Court and Court of Appeals agreed was necessarily based on individualized inquiries. Id. at *11. Despite this fact, however, the District Court found that, based on an evidentiary framework established for Title VII cases in Int'l Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977), "it could adjudicate plaintiffs' claims and reach a finding of classwide liability and relief without undertaking individualized inquiries into qualification ... with respect to the class." Id. at *13. The Court of Appeals rejected this reasoning, explaining that "the ADA, and not the Teamsters method of proof, dictates what substantive elements are necessary to reach a determination [of liability]... ." Id. at *14. Accordingly, because the "assessment of whether class members are 'qualified' is necessary to determine [liability]" and this assessment requires individualized inquiries, the Court reversed the District Court's order of class certification. Id. at *19.

In this case, the Rowe Plaintiffs seek medical monitoring based on their alleged exposure to PFOA. To obtain medical monitoring, under New Jersey law, Rowe Plaintiffs must show that

(1) class members suffered significant ...


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