Duane Morris Class Action Review - 2023 - Report - Page 284
settlement between some defendants, and Plaintiff sought class certification against
another defendant, alleging strict liability failure to warn claims and negligence claims.
Id. The plaintiffs proposed four classes, including (i) the Municipal Water Property
Damage Class; (ii) the Private Well Water Property Damage Class; (iii) the Nuisance
Damage Class; and (iv) the PFOA Invasion Injury Class. The court certified all of the
classes. It certified the PFOA Invasion Injury Class, Municipal Water Property Damage
Class, and Private Well Water Property Damage Class under Rule 23(a) and 23(b)(3),
and certified the Nuisance Damage Class under Rule 23(a) and Rule 23(c)(4). Id. at
*10-13.
With respect to class (iv), the court found that medical condition did not have to be the
same for each class member, only beneficial for the class, and a claim for medical
monitoring is injunctive in nature when built around a scheme of court-ordered testing.
Id. at *12-13. With respect to classes (i), (ii), and (iii), the defendant argued against the
predominance requirement by attacking the ability to calculate damages on a class-wide
basis. Id. at *22. The damages model proposed by plaintiffs’ expert used a single
method to determine damages on a class-wide basis. The court found that, although
there may be individualized damages, class certification was not defeated based on the
damages model; instead, the damages model was sufficient to certify classes (i) and (ii)
(1). Id. at *67. However, class (iii) was not successful under Rule 23(b)(3) because the
court found no viable class-wide methodology for assessing damages. Id. The court
certified the class under Rule 23(c)(4) because it found that liability could be determined
through the class phase of the litigation, and then each individual could attempt to prove
their individual amount of damages. Id. at *74-75.
In Hardwick, et al. v. 3M Co., 2022 U.S. Dist. LEXIS 39300 (S.D. Ohio Mar. 7, 2022),
the plaintiff brought a class action related to the “C-8” MDL, that dealt with PFOA and
PFAS, seeking certification of a nationwide class and declaratory and injunctive relief,
including medical monitoring. Id. at *4. The plaintiff sought certification under Rule 23(a)
and Rule 23(b)(2). In addition to Rule 23 arguments, the defendants argued that the
plaintiff lacked standing, and the proposed class members lacked standing. Id. at *20.
The court determined that although an actual injury is not necessary for standing, the
plaintiff must demonstrate an increased risk of a disease or illness for the request for
court-ordered medical monitoring. Id. at *23. The court ruled that the plaintiffs were
easily able to demonstrate an increased risk based on governmental, environmental,
and health watchdog groups’ scientific studies examining the effects of PFOA and
PFAS, and for the same reason, the court found the traceability and redressability
requirements for standing were satisfied. Id. at *25, *33.
The defendants obtained a small victory with the issue of commonality, although it did
not defeat class certification completely. The defendants argued that medical monitoring
laws varied immensely across the states, which the court agreed was sufficient to
defeat a nationwide class, and instead, it certified an Ohio-based class. Id. at *80.
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Duane Morris Class Action Review – 2023
