Digging deeper: mass toxic tort class certification after Dukes, Comcast, and Amgen.

• Author: Coughlin, Timothy

This article originally appeared in the July 2013 Toxic and Hazardous Substances Committee newsletter.

In the past two years, the United States Supreme Court has issued several significant opinions imposing more rigorous requirements for certification of classes under Fed. R. Civ. P. 23. Specifically, the Supreme Court's decision in Wal-Mart Stores v. Dukes (1) held that plaintiffs must prove with affirmative evidence that they have met the requirements of Rule 23. In response, the trial and appellate courts have become more stringent about requiring plaintiffs to prove that putative class members have suffered a common injury and that the class action contains claims that may be resolved on common proof. In addition, the 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 the lower courts further in performing a "rigorous analysis" of class certification issues, even to the extent that they overlap with the merits of the case. These developments have wide-ranging implications for mass tort class actions, especially due to the fact-intensive nature of such cases. This article explores the potential implications of these opinions, particularly as they have been or may be applied in mass tort class action cases.

1. Courts Have Interpreted Dukes to Impose More Stringent Requirements for Certification of Mass Tort Classes

   In Wal-Mart Stores v. Dukes, the Supreme Court rejected, under Rules 23(a)(2) and 23(b)(2), certification of an employment discrimination class consisting of approximately 1.5 million plaintiffs, which it described as "one of the 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 "affirmatively demonstrate his compliance with the Rule;" that is, he must prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc."; (5)

   2) Heightened "commonality" requirements: "Commonality" under Rule 23(a) requires a plaintiff to demonstrate that class members have suffered the same injury, and their claims must depend upon a common contention "of such a nature that it is capable of class-wide resolution--which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke"; (6) and

   3) Rigorous analysis: The "rigorous analysis" required of a petition for class certification "will entail some overlap with the merits of the plaintiff s underlying claim." (7)

   In the 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 the same injury, and that their claims are capable of classwide resolution despite any potential differences between the plaintiffs.

   Less than a month after the Supreme Court handed down its opinion in Dukes, a Michigan court relied on Dukes in reversing its prior certification of a putative class in Henry v. Dow Chemical Company. (8) There, the court noted that, although its prior analysis had been correct under the law as the court understood it before Dukes, it was required to reanalyze whether the plaintiffs had met the commonality requirement as articulated in Dukes. (9) It found that, like Dukes, there was an absence of "glue" holding together plaintiffs' allegations that Dow had negligently released dioxin into the Tittabawassee River flood plain. (10) Rather, the court found too many highly individualized inquiries regarding issues such as "the level and type of dioxin contamination in the specific properties, the different remediation needs and different stages of remediation for different properties, and the fact that some of the properties have been sold" as well as the myriad ways the individual plaintiffs' use and enjoyment of their properties had been affected. (11) Thus, the court denied class certification based on the fact that, under the heightened Dukes standard, plaintiffs could not show that there was a common contention capable of class-wide resolution. (12)

   Two months after Dukes, the Third Circuit issued its opinion in Gates v. Rohm & Haas Co., affirming the district court's denial of the...