On April 21, 2022, in Tomas Vera et al. v. Middlesex Water Co. (MID-L-6306-21, Superior Court of New Jersey, Middlesex County), a New Jersey Superior Court judge granted plaintiffs’ motion for certification in a case stemming from PFAS contamination of the county’s water supply.  Defendant Middlesex Water Co. (“Middlesex”) sent notices to customers on October 22, 2021 and November 8, 2021 advising that testing showed levels of Perfluorooctanoic Acid (“PFOA”) of 36.1 parts per trillion, well above the 14 parts per trillion maximum contaminant level (“MCL”) standard set by the New Jersey Department of Environmental Protection (“NJDEP”).  The notices further advised of health concerns potentially associated with PFOA, recommended that customers with “specific health concerns, a severely compromised immune system, have an infant, are pregnant or are elderly” seek advice from a health care provider, and recommended installing a home water filter to reduce levels of PFOA in the tap water or use bottled water for drinking, cooking, or preparing beverages for infants.

Seven plaintiffs filed suit against Middlesex in October 2021 for costs incurred from following the recommendations in the written notices as well as for injunctive relief.  Plaintiffs then moved to certify class, proposing three main classes and two sub-classes:  1) a main class of New Jersey citizens who received version A of the form notice sent by Middlesex; 2) a main class of New Jersey citizens who received version B of the form notice sent by Middlesex; 3) a subclass of citizens who received either of the two notices and had specific health concerns, a severely compromised immune system, had an infant, were pregnant, or elderly and incurred medical expenses as a result of following the directive from the notice to seek advice from a health care provider; 4) a subclass of citizens who had an infant at the time the notice was received and incurred expenses purchasing bottled water; and 5) another main class of citizens who received water from Middlesex but have not been provided with a written notice of the PFOA violation.

Under New Jersey Court Rule 4:32-1, a class action may be brought only if the Rule 4:32-1(a) requirements of numerosity, commonality, typicality and adequacy of representation are met, along with at least one of the criteria from Rule 4:32-1(b).  Middlesex did not dispute that the Rule 4:32-1(a) requirements were met, but argued that the proposed classes failed under Rule 4:32-1(b) because common issues of law and fact did not predominate over individual issues of the class members, and plaintiffs’ claims for injunctive relief were moot because Middlesex had already stopped providing water from the contaminated wellfield.

Noting that under New Jersey law, “a class action should lie unless it is clearly infeasible,” the court agreed the Rule 4:32-1(a) requirements were met.  Because Middlesex serves over 300,000 persons, the court held it was “easy to speculate that each class or sub-class would have thousands of members.”  Commonality was also met as the court held the claims all arose from the factual admissions in the two form notices or lack of notice, and there were various questions common to all class members including whether Middlesex was required to provide notice of the PFOA violation, whether it was equitably estopped from denying the admissions in the notices provided, whether Middlesex should be required to deliver water meeting the PFOA requirements, and whether a court administered program of medical monitoring was necessary.  As the court held the plaintiffs’ claims along with the claims of each class or subclass arose from “Defendant providing customers with water out of compliance with the PFOA standards,” the court held the typicality requirement was also met.  Finally, the court held that counsel was qualified, thus the adequacy of representation prong was met.

As to Rule 4:32-1(b), plaintiffs argued that the proposed classes should be maintained under Rule 4:32-1(b)(2), which permits a class action where “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.”  The court noted that under New Jersey law, this requirement “is almost automatically satisfied in actions primarily seeking injunctive relief.”  Plaintiffs argued certification was proper because the classes were primarily seeking injunctive relief, while Middlesex argued there were many individual issues rendering class certification improper, and the primary injunctive relief sought was moot because Middlesex had already shut down and stopped providing water from the contaminated wellfield.  Plaintiffs replied that the injunctive relief sought – an order barring defendant from selling drinking water to the class in the future in violation of PFOA standards is not moot, particularly as Middlesex could opt in the future to turn on the contaminated wellfield. 

The court held that plaintiffs were primarily seeking injunctive relief and medical monitoring, and any monetary damages claims were incidental to the equitable relief.  The court further held that Middlesex had acted in a consistent manner towards all class members by addressing them either in a form notice or not at all.  Accordingly, the court certified the class under New Jersey Rule 4:32-1(b)(2).

Middlesex previously brought suit against 3M alleging it is responsible for the PFOA in the groundwater supply, and Middlesex may eventually be able to recoup from 3M any damages stemming from the Vera lawsuit.  While there are numerous cases pending in New Jersey against makers of PFAS chemicals including suits filed by the State of New Jersey, this will be an interesting test case involving PFAS related claims brought directly by consumers against their water utility company. 

Share | Email| Print| Comments|  Topics: Class Actions, Contamination, Drinking Water, Injunction, Medical Monitoring, New Jersey, PFAS, Water