In the wake (no pun intended) of the Horizon gulf oil spill, what could be worse than (a) representing BP; (b) in Louisiana; (c) on a case involving personal injuries allegedly sustained on an oil platform? How about making the injury one for alleged radiation exposure? And the defendant wins! We don't ordinarily comment on personal injury class actions, even ones by employees, but the case of DeHart v. BP American Inc.pdf was just too interesting to pass up.

Here’s what happened. The plaintiff worked on a decommissioning project for a BP platform in the Gulf of Mexico in early 2007. He and others contended that they were injured by exposure to radioactive dust and liquids and brought personal injury claims for negligence under the Jones Act, 33 U.S.C. section 905(b). Following a removal and procedural wrangling, the plaintiff moved for certification. So far, so good for the plaintiffs.

After that, it seems, nothing went right under Rule 23. First, in response to some of the defendants’ arguments, the plaintiff had re-defined and limited the proposed class from 130 to as few as about 35 individuals. This number was below that generally recognized to support “numerosity” under Rule 23(a), and the actual number of class members exhibiting symptoms was even lower than that. More importantly, the court found that the plaintiff could not satisfy Rule 23(b)(3)’s predominance requirement because of highly individual inquiries required to determine what exposure caused what injury, including the type and magnitude of exposure, the duration of exposure, the employee’s prior health condition, the alleged health condition(s), what treatment they needed, and difficulties inherent to the specific materials claimed by the plaintiffs to have harmed them. Indeed, the court found these features so strong as to preclude a finding of typicality. Further, these differences undermined the element of “superiority.” The court also found that because DeHart claimed not to be exhibiting symptoms of radiation exposure and other putative class members did, they had an inherent conflict over whether they wanted a large present recovery, or monitoring and payment of future medical costs. Thus, the court found, the plaintiff could satisfy virtually none of the elements of Rule 23 and denied certification.

The bottom line: Sympathetic facts or a locally unpopular defendant won't support a class action if the Rule 23 requirements aren’t present.