Duane Morris Class Action Review - 2023 - Report - Page 58
district court further ruled that the Ohio class was just a start and expressed willingness
to certify classes from other states that recognize the viability of the medical monitoring
remedy.
The defendants sought interlocutory review of the certification order. The Sixth Circuit
granted the petition, elucidated the standards that apply to a petition for Rule 23(f)
interlocutory review, and articulated why the panel believed the defendants should
prevail in their appeal of the class certification ruling. First, the Sixth Circuit doubted that
the plaintiff had Article III standing to press his class claims. While the presence of
PFAS in his bloodstream could conceivably constitute an injury-in-fact, a science panel
and medical monitoring could not redress such an injury because those remedies would
not remove PFAS from his bloodstream or otherwise prevent his future exposure to
PFAS. Regarding cohesion and specificity of relief, the Sixth Circuit doubted the district
court’s ruling that the essential element of commonality was satisfied, insofar as the
plaintiff here “may all be able to ask a common question – whether exposure to PFAS is
sufficiently harmful to warrant medical monitoring. But . . . that question having a
common answer seems highly suspect. To the contrary, it would likely hinge on ‘the
type, amount, and timing of each of the millions of class members’ exposures, as well
as his or her background health risks related to age, gender, medical history, genetic
predispositions, and lifestyle choices.’” Id. at *19-20. The Sixth Circuit further noted that
the district court conflated commonality and the requirement that an injunctive relief
class be cohesive. Finally, the Sixth Circuit found that the district court’s ruling was a
sufficient “death knell” to the defendants – in terms of the enormous liability risk the
decision presented – to authorize interlocutory review, and further concluded that the
posture of the case – in terms of the district court’s willingness to expand the class
beyond the State of Ohio – likewise supported interlocutory review.
The Sixth Circuit summarized its ruling as follows: “when a district court certifies one of
the largest class actions in history, predicated on a questionable theory of standing and
a refusal to apply a cohesion requirement endorsed by seven courts of appeals, to
authorize pursuit of an ill-defined remedy that sits uneasily with traditional constraints on
the equity power and threatens massive liability, such a decision warrants further
review.” Id. at *28.
In Laudato, et al. v. EQT Corp., 23 F.4th 256 (3d Cir. 2022), the plaintiff sought
compensation for the defendant’s use of the plaintiff’s underground space for storing
natural gas and sought to certify a class of similarly-situated landowners. The district
court found that “it would seem in everyone’s best interests to resolve this case on a
class basis” and declared that “class certification will be granted, with instructions,”
though the district court rejected the plaintiff’s class definition. The defendant petitioned
for appellate review under Rule 23(f), asserting that the district court erred in its class
certification ruling. The plaintiff argued that the petition should be dismissed as
premature because the district court’s order was “preliminary” and did not grant class
certification. The Third Circuit rejected that argument. It reasoned that “[d]espite the
forward-looking language, . . . the district court plainly contemplated that any
subsequent certification order would be limited to merely redefining the class” and “the
district court also made clear that the order contained its final word on certification
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Duane Morris Class Action Review – 2023
