18 March 2015
Traditionally, federal courts have been reluctant to certify class actions in environmental contamination cases because of inherently unique issues raised by plaintiffs’ personal-injury claims. In other contexts, however, class plaintiffs have been able to overcome atypicality arguments at the certification stage by advocating that courts certify the class for liability only and then bifurcate proceedings for individual hearings on damages. Despite being subject to the criticism that certification, even for limited purposes, puts undue pressure on defendants to settle, this trend also appears to be gaining traction in the context of mass environmental torts.
Ebert v. General Mills, Inc.,1 a decision by Judge Donovan W. Frank of the US District Court for the District of Minnesota, is the latest example of this trend. The Ebert court certified a class of about 200 property owners in a Minneapolis neighborhood to pursue claims against General Mills for allegedly contaminating the groundwater beneath the owners’ properties with the solvent trichloroethylene (“TCE”). The Ebert plaintiffs successfully obtained certification by presenting Judge Frank with narrow liability issues for class treatment. The judge also bifurcated the damages portion of the trial and said that he could always decertify the class later if individual issues began to predominate. Importantly, the plaintiffs in this case limited their claims to property damage and injunctive relief, seeking an order compelling General Mills to remediate the property; they did not bring personal injury claims.
The certification was narrowly tailored. In an obvious effort to minimize problems with the typicality requirement, the plaintiffs sought to certify a class of property owners within a specified geographic area allegedly affected by the TCE, and to seek resolution on a class basis of only the issues of (a) whether the TCE at issue came from General Mills; and (b) injunctive relief for a “comprehensive cleanup” of the TCE plume. This targeted focus carried the day on the typicality requirement. The court rejected General Mills’ emphasis on the unique aspects of each of the individual properties at issue in the case and instead focused on the fact that the class representatives are using the same legal theories to seek the same remedies based on the same occurrence (TCE contamination resulting from General Mills’ alleged uniform course of conduct). The court reasoned that “minor differences” are not sufficient to defeat typicality. The court did not discuss the degree to which separate remedies may be appropriate for different properties, but was persuaded that “different levels of contamination and different treatment of each property do not defeat typicality.”
The court was more troubled with the adequacy prong. In the present complaint, the class is not seeking to recover damages for personal injuries, which are inherently unique. Minnesota, like many other states, has a general rule against claim splitting—meaning, in this context, that plaintiffs cannot resolve their property-damage/cleanup claims through the certification process and then attempt to resolve any personal-injury claims they may have through another, separate process.
In an apparent effort to make this claim-splitting issue disappear, the court (a) decided that individuals who could eventually allege future injuries are not subject to the claim-splitting ban, as they could not bring claims now for future injuries; and (b) relied on the representation of plaintiffs’ counsel that none of the plaintiffs were in fact seeking to recover for any current injuries. The court noted that the class could be modified or decertified if necessary in the future.
In granting certification, the court bifurcated the action into two phases. The first phase will address liability under Fed. R. Civ. P. 23(b)(2), and, if General Mill is found liable, the second phase will address damages under Rule 23(b)(3). The court did not elaborate on how individual issues would be addressed at the damages phase of the proceeding.
This decision highlights that creative plaintiffs’ counsel can in some instances convince a trial court that certification of limited issues in a large environmental tort is workable and appropriate. Plaintiffs’ counsel in this case applied the same playbook with which they had achieved success in an earlier environmental case. See LeClercq v. Lockformer, Co., Civ. No. 00-7164, 2001 WL 199840, at *7 (N.D. Ill. Feb. 28, 2001) (certifying a class for injunctive relief and liability, but reserving the determination of monetary damages, if needed, for individualized treatment). Obtaining class certification provides plaintiffs with significant leverage in settlement discussions, as the liability determination, however narrowly defined, carries major consequences. As an example, beyond damages for the current claims, future plaintiffs with personal-jury claims can be expected to maintain that a finding of liability against General Mills for purposes of the present property-damage claims should be given collateral-estoppel effect with respect to the future personal-injury claims.
1 2015 BL 52202, D. Minn., No. 13-3341, 2/27/15.