A West Virginia state court has cleared the way for property damage claims by 25,000 or more individuals to proceed as class actions in Carter v. Monsanto Co., Circuit Court of Putnam Cty, W. Va. (2000) and Allen v. Monsanto Co., Circuit Court of Putnam Cty, W. Va. (2004). Both lawsuits involve alleged air and water releases of dioxins around a former chemical plant in Nitro, West Virginia. Plaintiffs seek property cleanup costs, damages for loss of property value, funds to test for human contamination, and future medical monitoring costs. They also assert claims for punitive damages and injunctive relief against future property contamination.

Although the law on class actions varies significantly from jurisdiction to jurisdiction, many courts have been historically reluctant to certify class actions asserting property damage claims for alleged environmental contamination. In large part, these holdings have been based on the view that property-specific questions necessarily predominate over general class-wide issues, and that individualized proof is necessary for each plaintiff to prove liability and damages. Also, evaluation of property damage claims often requires assessment of individualized factors unique to each subject property, as well as complicated damages analyses.

In rulings issued January 8, 2008, however, Putnam County Circuit Judge O.C. Spaulding permitted the plaintiffs to proceed on a class basis rather than requiring individual property damage cases. The court found that “requir[ing] the class members to repeatedly prove such evidence as countless individual trials on issues that ultimately bear on [a defendant’s] liability to everyone in the class” would be “an enormous waste of resources.” Thus, the court concluded that “[a]djudication of such common issues on a class-wide basis would be appropriate to conserve judicial resources.”

Meanwhile, proceedings continue in approximately 77 related civil actions filed on behalf of Nitro-area residents in October 2007. Although each plaintiff filed an individual lawsuit, the plaintiffs in Bradshaw v. Monsanto Co., Circuit Court of Putnam County, W. Va. (2007) and related cases also purport to represent a class of persons who have developed cancers “known to be caused by exposure to dioxins/furans.” According to plaintiffs, dioxin releases during plant operations caused them to breathe contaminated air, touch contaminated soil, live in contaminated homes, and ingest dioxins and furans for many years. Plaintiffs’ proposed class includes all persons who lived, worked, and/or attended school in the area for at least two years between 1949 and the present. While the precise size of this large putative class is not immediately known, plaintiffs assert that the class area covers 12,503 private residences. Each plaintiff individually seeks $5 million in compensatory damages, and the class collectively seeks $300 million in punitive damages.

Notably, the recent complaints suggest that plaintiffs’ counsel undertook significant efforts to investigate the alleged dioxin contamination before filing suit. According to the Bradshaw complaint, plaintiffs “have diligently pursued an investigation of the dioxin/furan contamination by conducting sophisticated and expensive air-modeling, sample analysis, [and] biologic sampling.” Based on these activities, plaintiffs allege that “independent sampling of houses in the contaminated area reveals levels of 2,3,7,8-[Tetrachloro-di-benzo-p-dioxin, or TCDD] in attic dust that exceed 2200 parts per trillion,” and that “plaintiffs’ biological testing of certain residents of the contaminated area reveals serum lipid levels of 2,3,7,8-TCDD well above… levels of dioxins/furans in the general population.”

For comparison purposes, the University of Michigan conducted a Dioxin Exposure Study in Midland, Michigan from 2004–2006. The Michigan study analyzes the alleged relationship between blood dioxin levels and dioxin levels in household dust and residential soils. Although 764 house dust samples analyzed as part of the study detected total dioxin concentrations ranging from 1.4 to 1748.3 parts per trillion (http://www.sph.umich.edu/dioxin/PDF/BDS_ dustdata_2005TEF.pdf), researchers concluded that a person’s age is the most important factor related to dioxin blood levels, and that age, gender, and body fat composition—rather than dioxin in household dust or the environment—have the greatest influence on blood dioxin levels.

These developments in West Virginia, and the plaintiffs’ bar’s continuing interest in dioxin and other chemical mass tort cases, highlight the need for lawyers to be well-versed in the scientific issues underlying mass tort cases and the procedural strategies for defending them.