On Appeal from the United States District Court for the Eastern District of Pennsylvania D.C. Civil Action No. 06-cv-01743 (Honorable Gene E.K. Pratter)
The opinion of the court was delivered by: Scirica, Circuit Judge.
Before: SCIRICA, RENDELL and ROTH, Circuit Judges.
This is an interlocutory appeal under Fed. R. Civ. P. 23(f) from the denial of class certification for medical monitoring and property damage. Plaintiffs aver chemical companies dumped an alleged carcinogen at an industrial complex near their residences. The District Court found individual issues predominated on exposure, causation, and the need for medical monitoring and also found individual issues predominated as to a liability-only issue class for the property damage claims.
Named plaintiffs Glenn and Donna Gates are residents of McCullom Lake Village, Illinois, a primarily residential area of approximately 2000 people and 400 homes. Defendants are chemical companies that owned and operated a facility in Ringwood, Illinois, one mile north of McCullom Lake Village. According to plaintiffs, defendants dumped wastewater containing vinylidene chloride into a nearby lagoon that seeped into an underground aquifer where it degraded into vinyl chloride, a carcinogen. Plaintiffs contend vinyl chloride evaporated into the air from the shallow aquifer and was swept by the wind over McCullom Lake Village.
Plaintiffs seek certification of two classes: (1) a class seeking medical monitoring for village residents exposed to the airborne vinyl chloride between 1968 and 2002, and (2) a liability-only issue class seeking compensation for property damage from the exposure. At issue is whether the District Court erred in finding individual issues barred certification of the proposed trial classes under Fed. R. Civ. P. 23(b)(2) or 23(b)(3). We will affirm.
From 1951 to 2005, defendant Morton International owned and operated the Ringwood facility. In June 1999, defendant Rohm & Haas Co. acquired Morton and from 2005, defendant Rohm & Haas Chemicals, LLC, a wholly-owned subsidiary of Rohm & Haas Co., has operated the Ringwood facility.*fn1
Morton made use of vinylidene chloride at the Ringwood facility and from 1960 to 1978, disposed wastewater containing vinylidene chloride into an on-site lagoon. In 1973, tests of the shallow aquifer under the Ringwood facility showed elevated levels of ammonia and chloride. This shallow aquifer does not extend under McCullom Lake Village. In 1978, Morton ceased using the on-site lagoon and covered it.
In 1984, Morton conducted an environmental assessment of the Ringwood
facility and installed nineteen monitoring wells at the facility.
Samples from these wells contained vinylidene chloride and vinyl
chloride. Subsequently, more than ninety monitoring wells were
installed in the area around the Ringwood facility.*fn2
To date, neither vinylidene chloride nor vinyl chloride has
been detected in tests of residential wells in McCullom Lake Village
used to obtain drinking water. Plaintiffs contend
these chemicals may be present at undetectable levels.
In 2006, named plaintiffs filed a complaint alleging there were multiple pathways of contamination from multiple chemicals including vinyl chloride.*fn3 The putative classes include only those with economic injury or exposure. Persons alleging physical injury (including brain cancer) are excluded from the classes.
Despite asserting multiple potential pathways of contamination, plaintiffs limited their arguments at class certification to a single chemical, vinyl chloride, and a single pathway, via a shallow aquifer into the air. A deeper aquifer runs underneath the Ringwood facility, but the parties dispute whether it has become contaminated and whether the aquifer flows to the village. Plaintiffs originally alleged this deeper aquifer ("deeper plume") carried vinyl chloride to the ground water under the village. They also alleged "air stripping" equipment used to remove contamination from the facility‟s groundwater caused contaminants to be released into the air.
Despite asserting several claims for relief including medical monitoring, property damage claims, relief under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq., the Illinois Environmental Protection Act, 415 Ill. Comp. Stat. § 5/1 et seq., and state-law fraudulent misrepresentation and willful and wanton misconduct claims, plaintiffs chose to proceed on a class basis only on the medical monitoring and property damage claims and, as noted, solely with regard to vinyl chloride exposure. The proposed medical monitoring class includes:
All individuals who lived for one year or more in total (whether consecutively or not) within McCullom Lake Village during the time period from January 1, 1968 to December 31, 2002. Excluded from the class are individuals for whom brain cancer has been detected and individuals bringing claims in any court of competent jurisdiction arising out of exposure to chlorinated solvents.
The proposed property damage class includes:
All persons who presently own real property within McCullom Lake Village, or who owned real property within McCullom Lake Village as of April 25, 2006 (the date of the filing of the complaint) through the present. Excluded from the Class are individuals who have already brought claims in any court of competent jurisdiction arising out of exposure to chlorinated solvents.
Plaintiffs sought certification of only these classes.
At the class certification hearing both parties submitted expert evidence.*fn4 Plaintiffs relied on a report from Paolo Zannetti and a report and testimony from Gary Ginsberg. Zannetti, an expert in modeling dispersion of air pollution, submitted a report estimating the dispersion of vinyl chloride over the village based on data from the monitoring wells. Ginsberg, a toxicologist at the Connecticut Department of Public Health, presented a risk assessment of exposure to vinyl chloride.
To measure the exposure from pollutants such as vinyl chloride, the experts modeled the exposure of residents compared to their background levels of exposure absent the alleged pollution attributable to the defendants.*fn5 Plaintiffs contend the natural background level is 0.042 micrograms per cubic meter (" u/m3"), a measure contained in the federal Environmental Protection Agency‟s 1999 National-Scale Air Toxics Assessment.
Zannetti‟s report modeled the emissions over the village using data from monitoring wells to develop models for the concentration of vinyl chloride in the air during four time periods, 1940-67, 1968-89, 1990-96, and 1997-2006. Included in his report are maps of the village with isopleth lines*fn6 showing the concentration of vinyl chloride exposure for persons within the isopleth during each time period. The isopleths are based on his "high scenario," which was an estimate based on the highest single recorded concentration at each monitoring site. He also developed a scenario he termed the "low scenario," which extrapolated exposure from the average of all recorded concentrations at each site. Zannetti used the highest recorded data because, in his opinion, the contamination had ended by the time the monitoring began and the historical levels were expected to be significantly higher than those measured. The exposure at the part of the village closest to the shallow plume ranged from 0.0266 u/m3 to 0.210 u/m3 in the "high scenario" and 0.00554 u/m3 to 0.0159 u/m3 in the "low scenario."*fn7
Ginsberg testified that the average amount of exposure for residents of the village over a twenty-five year period from the shallow plume would be 0.127 u/m3 (in addition to any background exposure). Ginsberg arrived at this figure by averaging the concentrations in Zannetti‟s isopleths based on the "high scenario."*fn8 The "high scenario" extrapolated exposure levels based on maximum detected concentration at monitoring wells from 1985 to 1990. He used the "high scenario" because "the contamination was likely higher in the past." In his view, the scenario still probably underestimated the exposure. If the "low scenario" were used the average exposure for a twenty-five year period would be 0.011 u/m3.
Ginsberg disclaimed that his report*fn9 was conclusive as to individual cases. At one point during his hearing testimony, Ginsberg stated the hypothetical risk calculations are "not meant to predict risk for a single individual under any specific scenario" because of "individual or personal variability-susceptibility."
The District Court denied class certification for both classes. It found the medical monitoring class lacked the cohesiveness needed to maintain a class under Rule 23(b)(2) and that common issues of law and fact did not predominate as required under Rule 23(b)(3). Both failed for the same reason-the "common" evidence proposed for trial did not adequately typify the specific individuals that composed the two classes. The court also found the remaining individual issues would require trial, undoing any efficiencies of class proceedings and possibly leading a second jury to reconsider evidence presented to the jury in the class proceeding.
The court found plaintiffs failed to present common proof of three issues critical to recovering on the medical monitoring claim-(1) that plaintiffs suffered from exposure greater than normal background levels, (2) the proximate result of which is significantly increased risk of developing a serious disease, and (3) whether the proposed medical monitoring regime is reasonably medically necessary.
The court found the proposed expert evidence demonstrating the first element-exposure greater than normal background levels-did not reflect the exposure of any specified individuals within the class. The court rejected Ginsberg‟s risk analysis and use of the 0.127 u/m3 figure because it represented an average exposure, not the exposure of any actual class member. The court also rejected as insufficient Zannetti‟s isopleths because the maps assumed a constant value for exposure during lengthy time periods. It found the isopleths were "overly simplistic" and averaged the class members‟ exposures, rendering them unsuitable as common proof.
The court found no common proof of minimum exposure level above which class members were at an increased risk of serious disease. The court rejected the proposed value of 0.07 u/m3-the EPA‟s regulatory standard for exposure to a mixed population of children and adults- because 0.07 u/m3 is a precautionary value below which a mixed population is likely to be safe. It does not establish the converse, the required element-the point at which class members would likely be at risk.
The court doubted that putative "common" proof could demonstrate whether the proposed monitoring regime is reasonably medically necessary. Plaintiffs wanted class members to receive serial MRIs to scan for cancerous tumors or CAT scans, if MRIs would pose health risks. The court did not believe a regime could be developed using common proof because of class members‟ differing ages, medical histories, genetic predispositions, and tolerance of serial MRIs.
The court also denied certification of the property damage class, finding similar defects with the "common" proof. The court noted "[p]laintiffs rely on the same expert testimony that they offered to support their medical monitoring claim." The court refused to certify a liability-only class because the common ...