Duane Morris Class Action Review - 2023 - Report - Page 346
PFOA above drinking water standards, exposure to which could have adverse health
effects on fetuses or breastfed infants, liver function, the immune system, and thyroid,
among other impacts. Id. at *3-4. The defendant’s notices apprised customers of the
PFOA levels and possible adverse impacts of exposure to same, as well as advised that
if customers had “specific health concerns, a severely compromised immune system,
have an infant, are pregnant, or are elderly,” they may be at a “higher risk” to exposure
and should seek advice from health care providers before drinking the water. Id. at *4-5.
The notice further recommended installing a home water filter, or, using bottled water
for drinking and other household uses. Id. Following the filing of the lawsuit, the
defendant shut down the source of the PFOA contamination, and the court signed an
Order wherein the parties stipulated that the defendant would not activate or operate the
source of contamination before completion of its remediation efforts unless the New
Jersey Department of Environment Protection required it, or, the defendant, in its “sole
judgment,” determined that activation was necessary for public health, adequacy of
supply, or for “any other reason … that necessitates doing so” to provide safe and
reliable drinking water service. Id. at. *6. The plaintiffs asked the court to certify three
main classes consisting of New Jersey citizens to whom the defendant had sent one of
the two notices, a class that had not received notices at all, as well as two sub-classes.
Id. at *8. The two sub-classes would be comprised of individuals who had specific
health concerns, a compromised immune system, an infant, or who were pregnant or
elderly at the time they received notice, or who had an infant at the time of notice. Id. at
*8-9. The plaintiffs moved for class certification pursuant to New Jersey Rules of Court
(Rule 4:32-1(a)), and the court granted the motion. The court determined that the class
was sufficiently numerous, and agreed that the plaintiffs presented issues common to all
class members, including whether the defendant was legally bound or equitably
estopped from denying the admissions made in the two notices as to its violation of the
PFOA standards; whether the defendant was required to deliver water to class
members that met PFOA requirements; and whether the PFOA violation necessitated a
court-administered program of injunctive and equitable relief of medical monitoring. Id.
at *17. The court also held that the claims of the putative class members all arose out of
the defendant’s providing customers with water falling below PFOA standards, and that
the plaintiffs were adequate class representatives seeking the same relief on behalf of
their respective classes. Id. at *18-19. The defendant argued that class certification was
improper where, as here, there were too many individual issues to consider, and, where
the injunctive relief sought was rendered moot because the defendant had already shut
down the contaminated water source. Id. at *21. In reply, the plaintiffs argued that the
order still allowed the defendant to turn on the contaminated source based on its “sole
judgment.” Id. In these circumstances, the court declined to address with the merits of
the claims at the certification stage.
New York
The independent contractor versus employee classification analysis is necessarily factintensive and takes into account a variety of factors related to the degree of control by
the hiring entity, and the unique circumstances of the contractor relationship in question
making it difficult to certify such inquiries on a class-wide basis, but not impossible.
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Duane Morris Class Action Review – 2023
