JurisdictionUnited States
Natural Resources & Environmental Litigation II
(May 1996)


Thomas S. Nichols
Gail L. Wurtzler
Davis, Graham & Stubbs LLP
Denver, Colorado






A. Class Actions From A Plaintiff's Perspective

B. State Of The Law On Class Certification

C. Issues In Cases Addressing Class Certification

1. Whether Plaintiffs Satisfied Rule 23(a)

2. Whether Plaintiffs Satisfied Rule 23(b)(1) or 23(b)(2)

3. Whether Plaintiffs Satisfied The Predominance And Superiority Requirements Of Rule 23(b)(3)

a. Role Of Individual Questions Of Injury, Causation, And Damages

b. Role Of Individual Defenses

c. Issue Of "Classwide" Relief

D. Use Of Exemplar Plaintiffs: Advantages And Disadvantages


A. Medical Monitoring As Individual Screening For A Particular Condition

B. Medical Monitoring As A Study Of A Group Or Population

C. Issues In Framing Medical Monitoring Relief

D. A Critical Issue Overlooked By The Courts


A. Whether Injury Is Permanent Or Temporary Determines Whether Remedy Is Damages For Loss of Value Or Injunctive Relief

B. Whether Injury Is Permanent Or Temporary Influences The Measure Of Damages

C. Elements Of Damages For Injury To Property

D. A Special Damages Issue For Toxic Tort Cases—"Stigma"


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Toxic tort actions involving environmental contamination are typically based on well-known legal theories. These theories include both common-law and statutory claims.

Federal statutory claims which may be included in toxic tort actions are claims for response costs under the Comprehensive Environmental Response, Compensation, and Liability Act,1 and claims under the citizen suit provisions of the Clean Water Act,2 the Clean Air Act3 or the Resource Conservation and Recovery Act.4 Depending upon the facts of the underlying dispute, claims under other federal environmental statutes or nuclear regulatory statutes may also be included. Many of these statutes have procedural prerequisites to the filing of an action or require a plaintiff to satisfy potentially onerous elements of proof.5 As a result, these federal statutory claims often present defendants with strong grounds for obtaining dismissal at an early stage in the litigation. However, several of these statutes do allow for successful plaintiffs to recover their attorneys' fees.6

The federal statutory claims, however, are not the most potent weapon in a plaintiff's arsenal. State law claims typically would allow higher possible recoveries and are not subject to as many procedural or pleading defenses. Such claims include trespass, public and private nuisance, negligence, negligence per se and strict liability. Of these claims, trespass and private nuisance are the most fact-intensive and therefore are usually the most difficult claims for a defendant to deal with by motion and most likely to get a plaintiff to the jury. For this reason, almost all toxic tort cases involving environmental contamination include claims for common-law trespass and private nuisance.

Depending upon the particular factual setting, state law claims may also be based on fraud and misrepresentation,

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outrageous conduct or state statutes which uniquely apply to the facts of the given dispute.

Many of the state law claims vary to some degree in the elements of proof, the application of defenses, or the types of relief available among the various states. These differences which are often small have arisen because of the way in which the case law has developed in each state or because of unique legislative limitations on a claim or legislative interpretations of the common-law theory. Therefore, it is not possible to generalize for all states, and the nuances of the law of each state must be examined before attempting to apply an appellate opinion from one state to a claim being determined in a different state.

Rather than delve into all of these nuances, this paper addresses three issues which came up with some frequency in toxic tort cases involving environmental contamination. These are: who sues when the case involves wide-spread claims of injury; the parameters of the evolving form of relief known as medical monitoring; and variations on relief for trespass and nuisance.


A. Class Actions From A Plaintiff's Perspective.

From a plaintiff's point of view, class actions have a number of advantages. First, such actions allow a large number of people to recover for their losses even though the injury that each has suffered may be too small to justify the expense and burden of a lawsuit. Second, the potential size of a class recovery allows plaintiffs to attract counsel who might not otherwise be interested in representing them on a contingent fee basis. Third, all members of the plaintiffs' group can be represented by only one or at most a handful of class representatives, thereby allowing many of the plaintiffs to secure any benefit of the litigation without being required to participate personally. Finally, a class action will often receive more public attention than a lawsuit brought by a single plaintiff, thus creating additional incentives for some defendants to settle promptly.

There are also disadvantages for a plaintiff in a class action. Class certification adds another layer of discovery and motion practice directed at the question of class certification and therefore may delay and add to the expense of litigation. In addition, the question of class certification, rather than the merits of the plaintiffs' claims, may become the focus of the case and defeat of class certification may then defeat the litigation for practical purposes. Even if the plaintiffs succeed in obtaining class certification, that certification may be limited to certain issues. In that case, the decision in the class action does not end the litigation but only provides a

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decision on overall issues and leaves individual issues, such as injury, causation or damages, to be tried separately.

B. State Of The Law On Class Certification.

In order to maintain a class action in a toxic tort case or any other case, the plaintiffs must satisfy the requirements of Rule 23 of the Federal Rules of Civil Procedure in a federal court action or the state equivalent of that rule in a state court action. As a threshold, the putative class representatives must show that:

(1) the class is so numerous that joinder of all members is impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims...of the representative parties are typical of the claims...of the class; and

(4) the representative parties will fairly and adequately protect the interests of the class.7

In addition, the plaintiffs must show that their proposed class action is one where

(1) the prosecution of separate actions by...individual members of the class would create a risk of (A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or (B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or

(2) 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; or

(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available

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methods for the fair and efficient adjudication of the controversy.8

In determining whether a prospective class action plaintiff has satisfied these requirements, a trial court is required to make "a rigorous analysis" and may not accept a facile allegation of "classwide wrongs" as the basis for class certification.9 In addition, the decision on class certification is a matter within the sound discretion of the trial court.

The discretion granted to the trial court on the certification issue leaves the decision as to what method of trial is most efficient primarily to the court that is in the best position to determine the facts of the case, to appreciate the consequences of alternative methods of resolving the issues of the case and that is in the best position to select the most efficient method for their resolution.10

Given these principles, a trial court's decision on class certification is one which is highly fact-dependent and is made in light of the particular circumstances presented. This situation is reflected in the widely divergent results on class certification motions in toxic tort actions. As a result, the precedential value of a decision on class certification in a particular case is limited for a subsequent case where class certification is requested.

C. Issues In Cases Addressing Class Certification.

A number of courts have certified one or more classes in toxic tort actions involving claims of property damage or personal injury due to environmental contamination or exposure to potentially hazardous substances.11 However, an equally large

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number of courts have refused to certify classes in such toxic tort actions.12 The grounds for these decisions vary and each

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decision appears to be based on the facts of the particular case before the court.


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