On May 20, 2016, the U.S. Court of Appeals for the Eighth Circuit reversed class certification in a case involving residential vapor intrusion claims, in Ebert et al. v. General Mills, Inc., No. 15-1735 (8th Cir. May 20, 2016). Critical to the Court’s analysis was its determination that causation is a strenuous and nuanced inquiry that cannot be taken for granted.
This opinion is of particular interest to corporate clients threatened with or defending toxic tort litigation (including, but not limited to, vapor intrusion claims). In addition to helping to defeat future attempts at class certification, the opinion is expected to be significant in supporting (or defeating) dispositive motions or claims at trial that fail to take causation seriously in evaluating liability.
Finally, the opinion is also a reminder to adequately evaluate potential vapor intrusion issues in the course of transactional due diligence (now required as part of the All Appropriate Inquiries as set forth under the ASTM E1527-13 standard for phase I environmental site assessments).
Vapor Intrusion Claims Increasing in Frequency
Ebert highlights the increasing frequency of putative class claims based on vapor intrusion stemming from historic groundwater contamination. Plaintiffs, residential real estate owners, filed suit against General Mills alleging decreased property values on account of chlorinated solvents that allegedly migrated from a nearby industrial facility and caused vapor intrusion into plaintiffs’ homes. The U.S. District Court for the District of Minnesota certified a class of residential property owners on two issues: General Mills’ general liability, and whether injunctive relief (remediation) could be compelled. Ebert et al. v. General Mills, Inc.,2015 BL 52202(D. Minn. Feb. 27, 2015).
Class Lacked Commonality: Causation is a Complex Threshold Inquiry to Liability
The Eighth Circuit reversed class certification on the basis that the class lacked commonality and cohesiveness. The Court rejected plaintiffs’ theory that initial wrongdoing attributable to General Mills was sufficient to establish its liability to plaintiffs, and the Court commented the proposed class “artificially narrowed” the relevant issue. In overturning class certification, the Court focused on two key determinations: (1) causation is a complicated and nuanced inquiry, and (2) the causation inquiry must be resolved prior to determining liability.
The Court’s guidance instructs that the causation inquiry requires determining whether vapor intrusion threatens or exists on a specific property, and whether the vapor intrusion is attributable to the defendant. The Court made clear these determinations do not exist in a vacuum and should be considered by evaluating other factors, such as other sources of contamination, whether a potential for vapor intrusion is created, the extent (if any) of groundwater contamination beneath the property, any mitigation that has occurred at the property, and whether the plaintiff acquired the property before or after the alleged diminution in value.
The Court’s discussion is instructive in light of the Court’s conclusion that some evidence of historic contamination was alone inadequate to determine the defendant’s liability for the alleged vapor intrusion.
The full opinion in the matter Ebert et al. v. General Mills, Inc., No. 15-1735 (8th Cir. May 20, 2016), is available at http://media.ca8.uscourts.gov/opndir/16/05/151735P.pdf.