In an opinion highlighting some of the barriers to class certification in an environmental contamination case, a Kentucky federal court denied class status to plaintiffs alleging damages from exposure to hazardous substances from a glass manufacturing plant. See Modern Holdings v. Corning Inc, 13-cv-405 (E.D. Ky. Mar. 29, 2018).

Plaintiffs in the proposed class live and own property near a glass manufacturing facility in Danville, Kentucky. They brought suit against current and former owners of the plant, alleging nuisance, trespass, negligence, battery, fraudulent concealment, and negligent infliction of emotion distress.

The court found several flaws in the proposed class under both Fed. R. Civ. P. 23(a) and 23(b). Among the court’s concerns were issues of commonality, typicality, and representativeness of the named plaintiffs. On commonality, the court found that “significant individual issues that outnumber common issues, precluding the use of ‘common answers’ to further the case at trial.” Id. at 15. On typicality, the court noted that even just the named plaintiffs “have such an enormous variety of issues between them” that present unique questions of causation. Id. The court found the proposed class representatives were not particularly representative of the proposed class, noting they only have three of the 26 diseases the plaintiffs claim are caused by exposure to releases from the plant.