Ongoing exposure of numerous individuals to wind blown toxic materials comes within "mass action" exception to removal pursuant to the Class Action Fairness Act

Ongoing exposure of numerous individuals to wind blown toxic materials comes within "mass action" exception to removal pursuant to the Class Action Fairness Act

In Abraham v. St. Croix Renaissance Group, 2013 U.S. App. LEXIS 9899 (3rd Cir. 2013), Defendant sought to remove the case pursuant to Class Action Fairness Act ("CAFE"). Plaintiffs (459 in number) alleged that defendant purchased the site at issue (a former alumina refinery operation) knowing that loose bauxite and piles of red mud had a propensity to disperse when exposed to wind, injuring plaintiffs and their property. The refining of bauxite, a red ore, yields as wastes alumina residue and "red mud" (aka red dust). The plaintiffs alleged they were exposed to, among other substances, chlorine, fluoride, aluminum, arsenic, molybdenum, & selenium. Additionally the Plaintiffs alleged that friable asbestos was present. All of these substances were allegedly dispersed by wind and wind erosion.

Plaintiffs argued that removal was improper because 28 U.S.C. Section 1332(d)(11)(B)(ii)(1) excluded cases with facts such as these from the definition of "mass action."

The Third Circuit held that, when the record demonstrated circumstances that shared some commonality and persisted over a period of time, these could constitute "an event or occurrence" for purposes of Section 1332(d)(11)(B)(ii)(1). The words "event" and "occurrence" were not seen to necessarily have a temporal limitation. The court held that the complaint fell within the mass-action exclusion of CAFE.

The condition of the site during the period of defendant's ownership provided a source for the ongoing emission of the red mud and the hazardous substances, and the subsequent dispersion onto plaintiffs' persons and property. These circumstances, which the district court characterized as the continuous release of toxic substances from a single facility located in the Virgin Islands, constituted "an event or occurrence" for purposes of the exclusion. Thus, the remand ordered by the District Court was proper.