The Supreme Court’s ruling in Dukes v. Wal-Mart Stores, Inc., 2011 U.S. LEXIS 4567 (U.S. 2011), continues to have ramifications beyond labor and employment cases. In order for a plaintiff to proceed with a class action, the representative class must share common issues of causation or liability, known as the cohesiveness element of class certification. Dukes ruled that the cohesiveness element was missing in a putative nationwide class action involving thousands of women alleging systematic discrimination in pay and promotion. See recent blog entries “U.S. Supreme Court Issues Ruling In Dukes, et al. v. Wal-Mart Stores, Inc. - A Win For Employers,” and “Michigan State Court Issues One Of The First Opinions Applying Dukes In A Non-Employment Class Action Setting.”
This week, the Third Circuit’s ruling in Gates v. Rohm and Haas Co., No. 10-2108 (Aug. 25, 2011) relied on Dukes to uphold a district court’s denial of a putative class seeking medical monitoring and property damage to neighbors exposed to the release of chemicals from an industrial complex located in McCullom Lake Village, Illinois.
A medical monitoring claim is premised on an exposure to a toxic chemical that has yet to manifest itself into a personal injury. Because causation and medical necessity for monitoring often require individual proof, medical monitoring classes may founder for lack of cohesion. In Gates, the plaintiffs’ desire to obtain medical monitoring for neighbors exposed to vinyl chloride was rejected, with the Court stating: “We have been skeptical that the necessity for individuals’ medical monitoring regimes can be proven on a class basis.”
The court also rejected plaintiffs’ request for class wide monetary relief under Rule 23(b)(3) for property owners who allegedly suffered a loss in property values due to the contamination caused by defendants. The court upheld the trial court’s finding that common questions did not predominate over individual questions, and quoted from the lower courts decision: “[a]lthough many aspects of [p]laintiffs’ claims may be common questions, the parties agree that resolution of those questions leaves significant and complex questions unanswered, including questions relating to causation of contamination, extent of contamination, fact of damages, and amount of damages.”
Notably, the Court distinguished cases from the Seventh and Sixth Circuit which had approved class certifications after concluding that common questions predominated in instances of property contamination. Mejdrech v. Met-Coil Systems Corp., 319 F.3d 910 (7th Cir. 2003); Sterling v. Velsicol Chemical Corp., 855 F.2d 1188 (6th Cir. 1988). Mejdrech upheld a class because the geographic scope of contamination was “not especially complex.” Sterling allowed the class to proceed because a single set of operative facts established liability. In contrast, at McCullom Lake Village, multiple sources of harm occurred over time such that individualized issues predominated.
In light of Dukes and decisions such as Gates, it remains to be seen whether toxic torts claims arising from even “single instances” or from “simple theories of contamination” have sufficient cohesiveness to proceed as class actions.