In the latest in a flurry of PFOA (perfluorooctanoic acid) suits, a New York court granted class certification to a group of New York residents who claim that they have been harmed by decades of exposure to the chemical near a manufacturing facility. See Burdick v. Tonoga, Inc., Index No. 253835 (N.Y. Sup. Ct. 2018). The court found that although each resident might have been exposed to different levels of the contaminant and may have been exposed in different ways, plaintiffs had demonstrated that there were common issues of fact and law among them that warranted class certification.
Defendant Tonoga, Inc. owns and operates a plastics manufacturing facility in Petersburgh, New York. One of its operations involves coating fabrics with polytetrafluoroethylene (“PTFA” or “Teflon”), a chemical which, when deposited into soil, degrades and eventually forms PFOA. Plaintiffs are Petersburgh residents with allegedly elevated levels of PFOA in their blood. The residents filed suit in 2016 under theories of nuisance, trespass, and strict liability. Based on the various methods of exposure, plaintiffs proposed four different classes for certification: a town water property damage class, a private well-water property damage class, a private well nuisance class, and a PFOA personal injury class.
The court focused on the New York class certification criteria of commonality, typicality, and superiority. In evaluating each proposed class, the court found that because common issues predominated each claim, class certification was warranted. With regard to the proposed personal injury class, for example, the court determined that at least one common issue of law or fact existed, and that even though there were factual differences between the named and proposed plaintiffs, “such differences d[id] not overcome the facts that all plaintiffs’ medical monitoring claims ar[o]se from the same course of conduct by defendant and [were] based on the same legal theory.”