Duane Morris Class Action Review - 2023 - Report - Page 345
Pursuant to Massachusetts Code of Civil Procedure 23(a) (Mass. R. Civ. P 23(a)), the
plaintiffs sought certification of a proposed class of owners and occupants of residential
property within a half-mile to three-quarters of a mile of the gelatin plant. Id. The Court
held it would allow Plaintiffs to seek class certification, concluding that they had made
an adequate showing as to all class action requirements. Id. The court found that the
plaintiffs had presented “ample” evidence of the “noisome” odors in the form of
hundreds of complaints to regulatory agencies, social media posts, as well as sworn
statements, corroborating that Rousselot regularly released foul odors that likely
constituted a nuisance and diminished nearby property values. Id. at *3-4. The plaintiffs
also presented evidence identifying Rousselot as the source of the odors, including
notices of violation by the Peabody Board of Health for excessive odors, and other
similar reports from the Peabody Department of Health and Human Services, the
Massachusetts Department of Environmental Protection, an expert analysis of odor
emission data, and admissions by Rousselot itself. Id. at *4. Finding the class definition
unclear, the court proposed a revised definition to clarify the geographic boundary of the
residential housing, rendering the class more easily ascertainable pursuant to the
requirements of Mass. R. Civ. P 23. Id. at *5-6. Relying on the revised definition, the
court found sufficient evidence of numerosity rendering joinder impracticable. Id. at *8-9.
The court further determined that the claims at issue turned on questions of fact and law
common to all class members, including whether the odor emissions substantially
interfered with the class members’ use of their residence; whether Rousselot negligently
released substances that invaded the class members’ interest in the exclusive
possession of their residences; and whether Rousselot failed to exercise reasonable
care in designing, maintaining and operating its plant, resulting in harm to the
residences in the defined class area. Id. at *9-10. Rousselot challenged class
certification as improper on the grounds that not all residents had been impacted by the
plant emissions. Relying on thirty-six statements of putative class members (out of
thousands) who had never, or rarely, smelled any odor from the plant, Rousselot argued
that liability would have to be decided separately for each class member. Id. at 11. The
court disagreed. It held that the issue of liability for nuisance or trespass would be
evaluated based on objective standards, and not individuals’ perception of the odor. Id.
The court similarly determined that, even if some members had not suffered an injury
required for a negligence claim, the plaintiffs’ evidence suggested that the “vast
majority” of the proposed class had viable negligence claims that raised common
questions appropriate for class treatment. Id. Accordingly, the court held it would allow
the plaintiffs to bring their motion for class certification, incorporating the revised class
definition set forth by the court.
New Jersey
In Vera, et al. v. Middlesex Water Co., 2022 N.J. Super. Unpub. LEXIS 774 (N.J. Law
Div. Apr. 21, 2022), the plaintiffs filed a class action lawsuit on behalf of New Jersey
citizens receiving their water from the defendant Middlesex Water Company
(Middlesex), seeking injunctive relief, and medical monitoring as well as other
compensatory damages, for providing water containing levels of Perfluorooctanoic Acid
(PFOA) in excess of drinking standards. On October 22 and November 21, 2021,
Defendant sent two notices to its customers advising them that their water had levels of
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Duane Morris Class Action Review – 2023
