On August, 2, the Western District of Kentucky decertified a plaintiff class after concluding that the highly individualized proof necessary to establish a permanent nuisance claim under Kentucky law made class certification unavailable under Fed. R. Civ. P. 23 (“Rule 23”) (Powell, et al. v. Tosh, et al., 5:09-CV-00121). This ruling indicates that plaintiffs seeking class certification based purely on nuisance claims under Kentucky law will face a heightened burden to meet Rule 23’s requirements because of elements necessary to prove such a claim.
I invite you to read my recent article regarding the Powell decision and learn more about the court findings.