Another Federal Circuit Takes Broad View of Issue Class Certification Under Rule 23(b)(3) and 23(c)(4)
Written by Kristin Lausten
Recently, another federal circuit adopted the “broad view” of federal issue class certification under Rule 23(c)(3) and (c)(4). This leaves only the Fifth Circuit (Louisiana, Mississippi & Texas) and the Eleventh Circuit (Alabama, Florida & Georgia) as courts holding to the “narrow view” of class certification. The “board view” makes it easier for classes to be certified, increasing the risk to businesses and insurers in large complex tort cases.
The case at issue involved allegations of various toxic torts claims with respect to automotive and dry cleaning facilities alleged to have caused groundwater contamination in Ohio. The US Federal Court of Appeals for the Sixth Circuit affirmed the lower court’s grant of class certification on seven common issues and, in so doing, adopted the “broad view” of issue class certification. See Martin v. Behr Dayton Thermal Products LLC, Case No. 17-3663 (US Fed. 6th Cir. July 16, 2018).
There has been a long-running debate among the federal courts about issue class certifications under Federal Rule of Civil Procedure 23 and, in particular, the interplay between subsections (b)(3) and (c)(4). Subsection (b)(3) permits class certification 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.”
Subsection (c)(4) then provides that, “[w]hen appropriate, an action may be brought or maintained as a class action with respect to particular issues.”
Taking an environmental toxic tort as an example, let us assume there has been a spill/discharge of chemicals. For our example, let us further assume 1,000 persons and/or business are affected by the spill and assume the following seven distinct issues or aspects of the ensuing litigation:
- Chemical or chemicals discharged/spilled
- Manner of the discharge — air, ground, waterborne, etc.
- Preventative actions and warnings
- Type and extent of exposure
- Type of injury — to land, person, property
- Investigation and remediation efforts
- Extent of injury/damages
Under the “narrow view” of class certification, the “predominance” and “superiority” requirements would need to apply to the litigation as a whole — all seven issues in our example. Under the “broad view,” the “predominance” and “superiority” requirements are applied to each issue.
In general, with toxic torts, the type of exposure, type of injury and the extent of injuries/damages will be very unique to each plaintiff. Thus, class certification is much more difficult to obtain if the requirements of Rule 23(b)(3) must be met for ALL issues. If the predominance and superiority requirements are applied issue by issue, class certification can be had on some parts of the litigation leaving other parts to individual adjudication. Fortunately for the Louisiana defense bar, the Fifth Circuit holds to the “narrow view” making class certification easier to defeat. See Castano v. Am. Tobacco Co., 84 F.3d 734, 745 n.21 (US Fed. 5th Cir. 1996) (“A district court cannot manufacture predominance through the nimble use of subdivision (c)(4).”)
We predict that the Fifth Circuit will come under pressure from the plaintiffs’ bar to review and revise its narrow approach. The Sixth Circuit’s opinion in Behr Dayton Thermal expresses the view that “subsequent caselaw from within the Fifth Circuit itself indicates that any potency the narrow view once held there has dwindled …” citing Steering Comm. v. Exxon Mobil Corp., 461 F.3d 598, 603 (5th Cir. 2006) (discussing the value of bifurcation as an option).
Contact an Experienced Louisiana Toxic Tort Defense Lawyer
Need assistance? Have questions? Contact Kristin M. Lausten. We defend toxic tort cases in both state and federal courts throughout Louisiana. We use state-of-the-art technology and maintain relationships with a broad range of scientific and legal experts who are needed for defending toxic tort cases.
In addition, we provide legal consultation and planning so that you can decrease your risks of being sued for torts related to toxic substances.
The author may be contacted at:
Kristin M. Lausten
New Orleans, Louisiana
This article is provided as an educational service for general informational purposes only. The material does not constitute legal advice or rendering of professional services.