In a ruling that underscores the difficulty of securing class certification in toxic tort cases involving fear of contamination claims, the United States Court of Appeals for the Eighth Circuit reversed a Missouri federal district court’s certification of a class of plaintiffs alleging nuisance.  See Smith v. ConocoPhillips Pipe Line Co., 801 F.3d 921 (8th Cir. 2015). 

In 2002, a homeowner near Phillips Pipe Line Company’s petroleum pipeline in West Alton, Missouri, discovered benzene contamination in his well water, prompting Phillips to conduct remediation and monitoring.  Benzene, toluene, ethyl benzene, xylenes, and lead were detected in the groundwater beneath the homeowner’s land.  Plaintiffs, owners of nearby homes, subsequently filed a class action against Defendant alleging nuisance under Missouri law, seeking monetary damages for purported diminution of property value, complete remediation of the area, and continued monitoring.  Despite the lack of contaminants found on Plaintiffs’ properties, the district court certified the class for the owners of 61 properties within a quarter mile of the site, relying on the detection of contaminants in monitoring wells, the migrating nature of the pollution, and the possibility of “pockets of contamination.”

In reversing the district court’s class certification ruling, the Court held that Plaintiffs could not satisfy the commonality requirement of Federal Rule of Civil Procedure 23.  Plaintiffs failed to show any physical invasion of their property and therefore failed to show any actual injury.  The Court therefore concluded that the putative class’s fear of contamination, in the absence of proof failed to support the nuisance claim.