Digging Deeper: Mass Toxic Tort Class Certification after Dukes, Comcast, and Amgen

This article originally appeared in July 2013 Toxic and Hazardous Substances Committee newsletter. In past two years, United States Supreme Court has issued several opinions imposing more requirements for certification classes under Fed. R. Civ. P. 23. Specifically, Supreme Court's decision in Wal-Mart Stores v. Dukes (1) held that plaintiffs must prove with affirmative evidence that they have met requirements 23. In response, trial and appellate courts have become more stringent about requiring plaintiffs to prove that putative class members have suffered a common injury and that class action contains claims that may be resolved on common proof. In addition, Supreme Court's decision in Dukes, and more recently in Amgen v. Connecticut Retirement Plans and Trust Funds (2) and Comcast v. Behrend, (3) have pushed lower courts further in performing a rigorous class certification issues, even to extent that they overlap with merits case. These developments have wide-ranging implications for mass tort class actions, especially due to fact-intensive nature such cases. This article explores potential implications these opinions, particularly as they have been or may be applied in mass tort class action cases. I. Courts Have Interpreted Dukes to Impose More Stringent Requirements for Certification Mass Tort Classes In Wal-Mart Stores v. Dukes, Supreme Court rejected, under Rules 23(a)(2) and 23(b)(2), certification an employment discrimination class consisting approximately 1.5 million plaintiffs, which it described as most expansive class actions ever. (4) The Dukes opinion emphasizes several themes: 1) Heightened evidence standard: Rule 23 does not set forth a mere pleading standard; rather, a party seeking class certification must provide significant evidence to demonstrate his compliance with Rule; that is, he must prove that there are in fact sufficiently numerous parties, common questions law or fact, etc.; (5) 2) Heightened requirements: Commonality under 23(a) requires a plaintiff to demonstrate that class members have suffered same injury, and their claims must depend upon a common contention of such a nature that it is capable class-wide resolution--which means that determination its truth or falsity resolve an issue that is central to validity each one claims in one stroke; (6) and 3) Rigorous analysis: The rigorous required a petition for class certification will entail some overlap with merits plaintiff s underlying claim. (7) In two years since Dukes, both federal and state courts have started to impose more stringent burdens on plaintiffs bringing mass tort class actions to affirmatively demonstrate that putative class members have all suffered same injury, and that their claims are capable classwide resolution despite any potential differences between plaintiffs. Less than a month after Supreme Court handed down its opinion in Dukes, a Michigan court relied on Dukes in reversing its prior certification a putative class in Henry v. Dow Chemical Company. (8) There, court noted that, although its prior analysis had been correct under law as court understood it before Dukes, it was required to reanalyze whether plaintiffs had met commonality requirement as articulated in Dukes. (9) It found that, like Dukes, there was an absence glue holding together plaintiffs' allegations that Dow had negligently released dioxin into Tittabawassee River flood plain. (10) Rather, court found too many highly individualized inquiries regarding issues such as the level and type dioxin contamination in specific properties, different remediation needs and different stages remediation for different properties, and fact that some properties have been sold as well as myriad ways individual plaintiffs' use and enjoyment their properties had been affected. …