A federal judge in Oklahoma earlier this week denied class certification to homeowners living near a research facility, holding that individual issues outweighed allegedly common issues among the class claiming injury from contamination from the site. See Mitchell McCormick, et al. v. Halliburton Co. et al., No. 5:11-cv-01272 (W.D. Ok. 3/3/15).
For several decades, Halliburton performed a variety of important tasks on the Site at issue, including work for the United States Department of Defense cleaning out missile motor casings. This work involved removing solid rocket propellant, consisting primarily of ammonium perchlorate, from the missile casings using a high pressure water jet. As the missile motor casings were cleaned, water from the hydrojet and the dislodged propellant was run through screens to separate the solid materials from the cleaning water. The solid propellant was collected and periodically burned in pits on the Site, and the cleaning water was ultimately discharged into evaporation ponds. Over time, plaintiffs alleged, perchlorate from these operations reached the groundwater under the Site and migrated off-site.
So in 2011, plaintiffs filed the instant action, asserting causes of action for private nuisance, public nuisance, negligence, trespass, strict liability, and unjust enrichment. Plaintiffs then moved the Court to certify a class with respect to Halliburton’s alleged liability to the class for damages to their properties.
The Court began its analysis by noting that the class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2550 (2011). “To come within the exception, a party seeking to maintain a class action must affirmatively demonstrate his compliance with Rule 23.” Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013). Further, plaintiff ultimately bears the burden of showing that the Rule 23 requirements are met, and the district court must engage in its own “rigorous analysis” to ensure that certification is appropriate. See Shook v. El Paso Cnty., 386 F.3d 963, 968 (10th Cir. 2004).
Here, that analysis revealed that plaintiffs had not shown that questions of law or fact common to class members predominate over any questions affecting only individual members and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. “Considering whether ‘questions of law or fact common to class members predominate’ begins, of course, with the elements of the underlying cause of action.” Erica P. John Fund, Inc. v. Halliburton Co., 131 S. Ct. 2179, 2184 (2011). Halliburton’s liability as to any of plaintiffs’ causes of action could not be determined on a class wide basis because certain elements of plaintiffs’ causes of action require significant individualized evidence.
Regarding plaintiffs’ nuisance causes of action, observed the court, “[a] nuisance consists in unlawfully doing an act, or omitting to perform a duty which act or omission either . . . annoys, injures, or endangers the comfort, repose, health, or safety of others; or . . . in any way renders the other persons insecure in life, or in the use of property. . . .” Okla. Stat. tit. 50, § 1. Further, “[i]n order to maintain a cause of action for nuisance, the plaintiff must prove an unlawful act or omission of duty which either injured or endangered his use of his property.” N.C. Corff P’ship, Ltd. v. OXY USA, Inc., 929 P.2d 288, 294 (Okla. Civ. App. 1996). Thus, in order to establish Halliburton’s liability for nuisance, plaintiffs had to prove an injury to the use and/or the enjoyment of the property or that the use and/or the enjoyment of the property was endangered. This clearly required an individual plaintiff by plaintiff factual determination, i.e., did that particular plaintiff have a well on his property; did that particular plaintiff use the well for drinking water; was that particular plaintiff already on public water; what was the actual use of that particular property, etc. Additionally, regarding a cause of action for public nuisance, “before an individual can abate a public nuisance, it must be shown that the activity is specifically injurious to the person’s rights.” Smicklas v. Spitz, 846 P.2d 362, 369 (Okla. 1992). Further, in order to make this showing, a plaintiff must demonstrate that he sustained injuries “different in kind from that suffered by the public at large.” Schlirf v. Loosen, 232 P.2d 928, 930 (Okla. 1951). Thus, no class member could recover under a public nuisance theory without introducing individualized evidence of special harm different from other members of the public, which would necessarily include other members of the class.
Similarly, regarding plaintiffs’ negligence cause of action, while it is possible plaintiffs could establish duty on a class-wide basis in theory, plaintiffs could not show injury: establishing that defendant proximately caused an injury to a plaintiff is necessarily a highly individualized determination requiring each plaintiff to show that his property contains perchlorate and that the perchlorate came from the Site and not from some other source. Individual issues permeated the other causes of action as well.
The court concluded that "the vast number of important individualized issues" relating to defendant's alleged ultimate liability as to all of plaintiffs’ causes of action overwhelmed any common questions. The Court also found that a trial on whether defendant released perchlorate into the groundwater, as well as the current and future scope and extent of that groundwater contamination, was unlikely to substantially aid resolution of the ultimate determination of liability. Proof of these allegedly class wide facts would neither establish liability to any class member nor fix the level of damages awarded to any plaintiff; the common facts would not establish a single plaintiff’s entitlement to recover on any theory of liability, or even show that a single plaintiff was injured. Simply put, the individual issues would dwarf whatever common issues there may be, such that a vast array of mini-trials would be required for each class member if certification were granted.
Accordingly, a class action in relation to Halliburton’s liability was not superior to other available methods for fairly and efficiently adjudicating the controversy. Even if the Court were to certify the allegedly common issues, the subsequent separate proceedings necessary for each plaintiff would undo whatever efficiencies such a class proceeding would have been intended to promote.