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In a case alleging that a community was exposed to airborne vinyl chloride, the Third Circuit affirmed that a class action was inappropriate since individual issues predominated

In Gates v. Rohm & Haas Co. et al, 2011 U.S. App. LEXIS 17756 (3rd. Cir.: 8/25/11), Plaintiffs were residents of a primarily residential area of approximately 2,000 people and 400 homes.  Defendant chemical companies owned and operated a facility one mile north of of the village. 

The plaintiffs alleged that defendants dumped wastewater containing vinylidene chloride into a nearby lagoon that seeped into an underground aquifer where it degraded into vinyl chloride (a known human carcinogen) ("VC").  Plaintiffs contended that VC evaporated into the air from the shallow aquifer and was swept by the wind over the village.  Plaintiffs sought certification of two classes: (1) a class seeking medical monitoring for village residents exposed to the airborne VC between 1968 and 2002, and (2) a liability-only issue class seeking compensation for property damage from the exposure.  The District Court denied the class certification, finding that individual issues predominated, and thus barred certification under FRCP 23.  The plaintiffs appealed.

The Court of Appeals laid out those key factors that should be considered under Pennsylvania law in ascertaining if a class action is appropriate to address medical monitoring: 1) exposure greater than normal background levels; (2) to a proven hazardous substance; (3) caused by the defendant's negligence; (4) as a proximate result of the exposure, plaintiff has a significantly increased risk of contracting a serious latent disease; (5) a monitoring procedure exists that makes the early detection of the disease possible; (6) the prescribed monitoring regime is different from that normally recommended in the absence of the exposure; and (7) the prescribed monitoring regime is reasonably necessary according to contemporary scientific principles.  The Court noted that expert testimony is required to prove these elements.  [California law is similar.]

The primary shortcoming of the plaintiffs' case was the lack of commonality.  The Court found that the District Court did not abuse its discretion in finding plaintiffs would be unable to prove a concentration of vinyl chloride that would create a significant risk of contracting a serious latent disease for all class members, nor was there common proof that could establish the danger point for all class members. The Court found that plaintiffs' proposed common evidence and trial plan would not be able to prove the medical necessity of plaintiffs' proposed monitoring regime without further individual proceedings to consider class members' individual characteristics and medical histories and to weigh the benefits and safety of a monitoring program.  The Court also found that the District Court did not abuse its discretion in finding the property damage class members' individual issues predominated over the issues common to the class.  Given the potential difference in contamination on the properties, common issues did not predominate.

Thus, the Court affirmed the action of the District Court in denying class certification.

Free Download available of the Third Circuit's ruling in Gates v. Rohm & Haas Co. et al.