Class Status Denied in Suit Against DuPont Over Tainted Water

January 8, 2009
by LYNN ROSNER RAUCH
Client Alert Newsletter Forecast 2009

On December 23, 2008, the U.S. District Court for the District of New Jersey denied motions for class certification in Rowe, et al. v. E.I. DuPont de Nemours and Co., and Scott, et al. v. E.I. DuPont de Nemours and Co. In both cases, plaintiffs pursued class relief, in the form of medical monitoring, relating to DuPont's alleged contamination of drinking water supplies through the alleged release of perfluorinated materials ("PFOA") from its Chambers Works Plant in Salem County, New Jersey. The Court explained that under New Jersey law, a "claim for medical monitoring 'seeks to recover the cost of periodic medical examinations intended to monitor plaintiffs' health and facilitate early diagnosis and treatment of disease caused by plaintiffs' exposure to toxic chemicals.'" Although the Court found that plaintiffs satisfied a number of the thresholds for class certification under Federal Rule of Civil Procedure 23 (such as numerosity, commonality, typicality and adequacy of representation), it denied the motions for class certification given that plaintiffs could not demonstrate a class-wide significant risk of serious disease since "each individual's risk of disease will vary depending on his/her actual PFOA exposure as well as his/her background risk of disease absent PFOA exposure."

The Court rejected plaintiffs' assumption that "all the proposed class members suffered the same amount of exposure (or more) to PFOA" as did the named plaintiffs, finding the "highly individualized nature of people's medical circumstances," coupled with the inability of plaintiffs to establish the "point above which individuals are at a distinctive increased risk" rendered plaintiffs' risk assessment methodology insufficient in the litigation (as opposed to regulatory) context to establish a right to medical monitoring. In sum, the Court found that the array of individualized issues relating to the risk of disease and plaintiffs' inability to show through common proof that all proposed class members were at a distinctive increased risk of disease and need of medical monitoring, warranted denial of class certification.

While the current economic climate may spawn class action litigation both in the financial and personal injury contexts, the Rowe and Scott decisions suggest that proposed class action plaintiffs will need to adduce factual and expert evidence to establish a right to class certification beyond threshold requirements. Indeed, the Rowe and Scott decisions were issued just one week before the Third Circuit's opinion in In re: Hydrogen Peroxide Antitrust Litigation, which clarified aspects of class certification procedures, requiring that all the requirements of Rule 23 are met before a class can be certified, that all fact and legal issues pertinent to the question of certification be resolved even if they involve the merits of the underlying dispute, and that a court consider expert as well as fact evidence offered by the parties. These decisions suggest that, at least within the Third Circuit, courts will scrutinize motions for class certification, and that proposed class action plaintiffs will need to approach their factual and legal burdens with a renewed level of rigor.