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United States Court of Appeals for the Sixth Circuit
March 8, 2018, Argued; July 16, 2018, Decided; July 16, 2018, Filed
File Name: 18a0139p.06
[*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.
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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896 F.3d 405 *; 2018 U.S. App. LEXIS 19441 **; 2018 FED App. 0139P (6th Cir.) ***; 101 Fed. R. Serv. 3d (Callaghan) 330
TERRY MARTIN; LINDA RUSSEL, aka Linda Russell; NANCY SMITH; DEBORAH NEEDHAM, Plaintiffs-Appellees, v. BEHR DAYTON THERMAL PRODUCTS LLC; BEHR AMERICA, INC.; CHRYSLER MOTORS LLC, nka Old Carco LLC; ARAMARK UNIFORM & CAREER APPAREL INC., Defendants-Appellants.
Subsequent History: Motion granted by Martin v. Behr Dayton Thermal Prods. LLC, 2018 U.S. App. LEXIS 22135 (6th Cir., Aug. 8, 2018)
Rehearing, en banc, denied by Martin v. Behr Dayton Thermal Prods. LLC, 2018 U.S. App. LEXIS 23360 (6th Cir., Aug. 20, 2018)
US Supreme Court certiorari denied by Behr Dayton Thermal v. Martin, 2019 U.S. LEXIS 1959 (U.S., Mar. 18, 2019)
Prior History: [**1] Appeal from the United States District Court for the Southern District of Ohio at Dayton. No. 3:08-cv-00326—Walter H. Rice, District Judge.
In re Behr Dayton Thermal Prods., LLC, 2017 U.S. App. LEXIS 27899 (6th Cir., June 22, 2017)
district court, predominance, contamination, certification, class action, plume, vapor, Plaintiffs', class treatment, groundwater, class certification, properties, common question, broad view, individualized, certify, class member, causation, intrusion, resolving, narrow view, courts, abuse of discretion, cause of action, actual injury, common issue, adjudicating, neighborhood, class-wide, circuits
Civil Procedure, Special Proceedings, Class Actions, Appellate Review, Appeals, Appellate Jurisdiction, Interlocutory Orders, Standards of Review, Abuse of Discretion, Certification of Classes, Judicial Discretion, Prerequisites for Class Action, Predominance, Superiority, Standards of Review, Trials, Separate Trials, Constitutional Law, Bill of Rights, Fundamental Rights, Trial by Jury in Civil Actions, Governments, Courts, Rule Application & Interpretation