Martin v. Behr Dayton Thermal Prods. LLC

Opinion

 [*408]  [***2]   JANE B. STRANCH, Circuit Judge. This toxic tort class action case arises from Defendants' alleged contamination of the groundwater in the McCook Field neighborhood of Dayton, Ohio. Plaintiffs own properties in McCook Field, which is a low-income area surrounding [**2]  a Superfund site. They allege that Defendants released volatile organic compounds and other hazardous substances into the groundwater underlying their properties and were deliberately indifferent to the resultant harm. The district court denied Plaintiffs' motion for class certification under Federal Rule of Civil Procedure 23(b)(3), but certified seven issues for class treatment under Rule 23(c)(4). Defendants filed a Rule 23(f) petition to appeal the district court's issue-class certification order, and this court granted review. For the following reasons, we AFFIRM the district court's certification decision.

I. BACKGROUND

A. Factual Background

In 2008, thirty named plaintiffs filed this class action case, which now encompasses 540 properties in the McCook Field neighborhood. Defendants are four entities incorporated in Delaware and authorized to do business in Ohio: Behr Dayton Thermal Products LLC; Behr America, Inc.; Chrysler Motors LLC; and Aramark Uniform & Career Apparel, Inc.¹

Plaintiffs allege that the groundwater beneath their properties is contaminated with a number of known and suspected carcinogenic volatile organic compounds (VOCs). They contend that Defendants Chrysler and Aramark released these chemicals into the environment over [**3]  a period of many years while they operated their respective automotive and dry cleaning  [***3]  facilities.² The toxic chemicals seeped from the commercial properties into the groundwater in two separate plumes, which converge south of Aramark's facility.

The Chrysler-Behr Plume encompasses groundwater contamination from the Chrysler-Behr facility. Plaintiffs assert that Defendants Behr and Chrysler have known about the VOC contamination since 2000 but failed to take steps to remediate it or prevent its spread. The United States Environmental Protection Agency (EPA) became involved in 2006, initiated an emergency  [*409]  removal action in 2007, and designated the area as a Superfund site in 2009. According to the EPA, Defendants Behr and Chrysler released trichloroethene (TCE) and other hazardous substances from their facility, which contaminated the groundwater. This contaminated groundwater migrated south to the areas underlying Plaintiffs' properties. In 2006, the EPA conducted testing of the surface overlying the Chrysler-Behr Plume and determined that the "sub-slab" levels of TCE and other VOCs exceeded allowable levels.

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