The Town of Lexington, Massachusetts filed a putative class action in 2012 on behalf of itself and alleged similarly situated Massachusetts school districts that have one or more buildings with airborne polychlorinated-biphenyl(PCB) levels above the public health levels established by the EPA. From the outset of the litigation, defendants argued this proposed class was not ascertainable, as implicitly required by Rule 23, because it was impossible to identify the class members without air quality testing to establish the presence of PCBs.

More than two years into the litigation—well after the defendants had engaged in extensive discovery, opposed the town’s initial motion for class certification, and filed motions for summary judgment—the town agreed that its original, proposed class definition failed Rule 23’s ascertainability standard. In an attempt to salvage the class, the town moved for leave to amend its class definition and, if necessary, its complaint. The new proposed definition would have abandoned reliance on measured airborne PCB levels in favor of the dates of construction or renovation of the school. The town contended that PCBs were likely to be present in the caulk used during that time frame.

The District of Massachusetts denied both the town’s motion to certify and its motion to amend.  Regarding certification, the court found that it was undisputed the individualized air quality testing required to determine class membership rendered the original proposed class unascertainable. Regarding the town’s attempt to amend its class definition, the court relied on a combination of Federal Rules of Civil Procedure 15 and 16.

First, the court reasoned that allowing the amendment would cause unfair prejudice to defendants because the complaint and the town’s pleadings leading up to the motion for leave were devoid of any reference to the relevant injury being the presence of PCBs in caulk with no reference to indoor air quality.  “Requiring the defendants to adapt their defensive posture to the Town’s new theory of its case this far into the proceedings unduly prejudices the Defendants and, therefore, compels the Court to deny the motion.”

Second, the court reasoned that allowing the amendment would cause undue delay in the litigation. The town had known of the potential need to amend since very early in the litigation and its “substantial change to the class definition and its proposed class issues would likely require additional discovery and a postponement of the scheduled trial date, considerations counseling against amendment.”

Finally, the court reasoned that the town’s proposed amendment was futile because even its new definition would remain overbroad, vague, and unascertainable. The definition based on school construction or renovation within a specified time period failed to inform potential class members or the court what claims the town asserts or what issues are central to the case. It did not describe the harm alleged to have been suffered by class members or specify any alleged misconduct by the defendants.

Although [the town] requests that the issues of causation and damages be postponed to individual trials following resolution of class issues, [it] still must define the class on whose behalf it acts with some precision.

Town of Lexington v. Pharmacia Corp., Civ. No. 12-cv-11645, 2015 WL 1321448 (D. Mass. Mar. 24, 2015).