In Ebert v. General Mills, Inc., 823 F.3d 472 (8th Cir. 2016), the 8th Circuit Court of Appeals recently reversed class certification in a case involving alleged environmental contamination. The decision highlights the complexities faced in putative class action toxic tort cases, especially those involving vapor intrusion. Ebert stresses the fact that causation, liability and damages determinations are not only inextricably linked, but also that these concepts often involve highly individualized assessments that may not be suitable for resolution in class actions.
In this case, the owners of residential and commercial properties sued General Mills, alleging that it released trichloroethylene (TCE) onto the grounds surrounding its former manufacturing facility. Ebert, 823 F.3d at 475–76. They asserted that TCE entered nearby groundwater and that TCE vapors emanating from the groundwater migrated to their homes and businesses, negatively affecting the value of their properties. Id.
The plaintiffs brought several claims against General Mills, including:
- A violation of the Comprehensive Environmental Response Compensation and Liability Act (CERCLA).
- A violation of the Resource Conservation and Recovery Act (RCRA).
- Common law negligence.
- Private nuisance.
- Willful and wanton misconduct.
Id. at 476.
In federal court, the plaintiffs sought class certification regarding both General Mills’s liability for contamination and whether injunctive relief was warranted to compel site-wide remediation. Id.
Requirements for Class Certification
Under Federal Rule of Civil Procedure 23(a), plaintiffs seeking class-action status must satisfy four prerequisites:
- Numerosity, meaning the class is so numerous that joinder of all members is impracticable.
- Commonality, meaning the case involves questions of law or fact common to the class.
- Typicality, meaning the claims or defenses of the named parties are typical of those of the entire class.
- Adequacy of representation, meaning the representative class members and class counsel will fairly and adequately protect the interests of the class.
Here, in certifying a class of affected property owners, the district court bifurcated the case into two separate phases: one to address General Mills’s liability and the appropriateness of injunctive relief and the second to address monetary damages as to each individual property owner. Ebert, 823 F.3d at 476.
Class Lacked Predominance of Common Issues
The 8th Circuit reversed and remanded, concluding that despite the common set of facts applicable the case — i.e., General Mills’s contamination of the geographic area in which the plaintiffs owned property — individualized issues predominated the case. The court chided the district court, saying its ruling “limited the issues and essentially manufactured a case that would satisfy the Rule 23(b)(3) predominance inquiry.” Id. at 479.
Specifically, the court noted that to determine General Mills’s liability for property damage would require an individualized, property-by-property assessment about whether vapor intrusion was due, in whole or part, to General Mills’s actions. This would, in turn, require the trial court to consider such factors as whether there were any other sources of contamination besides General Mills affecting each property, whether any unique features of each property affected its decline in value and whether any mitigation had been performed on the properties. Id. at 479. Because this would involve a different set of evidence for each class member, the court concluded that individual questions predominated over common ones, such that class certification was inappropriate. Id. at 479-80.
As to the commonality of the request for remediation, the court explained that even this necessarily involved particularized assessments. “Remediation efforts on each of the affected properties, should they be awarded, will be unique.” Id. at 481. The court reasoned that the specific type of remediation needed for each property would depend on a number of factors, including the levels of TCE vapor present beneath each property and whether the property had already been equipped with a vapor mitigation system. Id.
In sum, the court concluded that the general evidence of environmental contamination over a common geographic area was insufficient to overcome the “exceedingly complex issues of injury and causation unique to each of the proposed plaintiffs in this class.” Id. at 477.