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Sixth Circuit Panel Endorses “Broad View” of Class Certification in Toxic Tort Case

Rule 23(c)(4) of the Federal Rules of Civil Procedure provides that, “[w]hen appropriate, an action may be brought or maintained as a class action with respect to particular issues.” Fed. R. Civ. P. 23(c)(4). Rule 23(b)(3), on the other hand, provides that a class action may be maintained only where “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” R. 23(b)(3). The Second, Fourth, Seventh, and Ninth Circuit have adopted a “broad view” of class certification, permitting a district court to certify a class on particular issues under Federal Rule 23(c)(4), even where the traditional predominance requirements of Rule 23(b)(3) have not been met for the case as a whole. Only two circuits, the Fifth and Eleventh, ascribe to the more “narrow view” in which Rule 23(b)(3)’s predominance requirement is applied to prevent district courts from certifying particular issues under Rule 23(c)(4), without certifying an entire claim. In a recent case brought my homeowners alleging contamination to groundwater, Martin v. Behr Dayton Thermal Products LLC et al., No. 17-3663, --- F.3d ---, 2018 WL 3421711 (6th Cir. July 18, 2018), the Sixth Circuit has now joined the majority of circuits addressing this issue by endorsing the “broad view” of issue-based class certification.

In Martin, a group of residential property owners nearby industrial facilities formerly operated by Behr, Chrysler, and Aramark alleged that at least two groundwater contamination plumes consisting of chlorinated solvents, including TCE and PCE, had migrated beneath their properties. The homes were all connected to the public water supply, and some of the homes were impacted to varying degrees by vapor intrusion. Martin, 2018 WL 3421711, at *1-2.

At the lower court, Judge Walter H. Rice of the Southern District of Ohio declined to certify any of the plaintiffs’ claims – for nuisance, negligence, negligence per se, strict liability, and unjust enrichment – because individualized issues of causation and injury-in-fact dictated that the predominance requirement of Rule 23(b)(3) could not be met. Nevertheless, Judge Rice certified seven class issues related to the presence of the contamination, based on Rule 23(c)(4). Id. at *3. The seven issues certified for class consideration stopped short of specific causation or individualized damages to any particular property or plaintiff. For example, “Issue 6” considers “[w]hether Chrysler and/or Aramark’s contamination, and all three Defendants’ inaction, caused class members to incur the potential for vapor intrusion.” Id. (emphasis added).

The Sixth Circuit’s three-judge panel unanimously upheld Judge Rice’s decision but offered a different framework for the analysis. According to the Sixth Circuit, under the “broad view” of issue-based class certification, a district court should, first, consider whether particular issues are appropriate for class consideration and, second, consider whether common questions of law or fact predominate over individual questions within each issue. Id. at *6. Citing the Supreme Court’s opinion in Tyson Foods, Inc. v. Bouaphakeo, the Sixth Circuit concluded that certification is proper even where key issues like “actual injury, causation, and damages will have to be tried separately.” Id. at *7 (citing 136 S.Ct. 1036, 1045 (2016).)

Even if the plaintiffs were to prevail on all seven issues certified for class consideration, liability would not be resolved for any claim. The Sixth Circuit held, nevertheless, addressing these issues jointly “would conserve the resources of both the court and the parties” and thus would satisfy the “superiority” requirement of Rule 23(b)(3). Id. at *8.

Siding with a growing majority of circuits, the Sixth Circuit’s adoption of the more flexible “broad view” of issue-based class certification may lower the bar of class certification for multi-plaintiff toxic tort putative class actions in Michigan, Ohio, Kentucky, and Tennessee and, more importantly, continues the nationwide trend toward more lax requirements for class certification for common issues which itself has the potential to greatly expand the number of toxic tort cases amendable to class certification.