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Eighth Circuit Rejects Bifurcated TCE Class Certification

In a case that highlights the complexity of structuring class actions, the U.S. Court of Appeals for the Eighth Circuit reversed a trial court’s decision to certify a class claiming damages from trichloroethylene (TCE) contamination.  See Ebert v. Gen Mills, Inc., 823 F.3d 472 (8th Cir. 2016).  The Eighth Circuit held that the trial court abused its discretion by narrowing the putative class and the issues before the court.

The putative class alleged in Minnesota federal court that TCE vapor from a plume under Defendant’s former facility threatened the health of residents and diminished property values in the surrounding neighborhood. After excluding class members with personal injury claims and bifurcating the action into liability and damages phases, the trial court certified two classes: a declaratory or injunctive relief class for the liability phase and a damages class for the damages phase.  

On appeal, the Eighth Circuit found that the trial court abused its discretion by certifying the classes. “[B]y bifurcating the case and narrowing the question for which certification was sought, the district court limited the issues and essentially manufactured a case that would satisfy the Rule 23(b)(3) predominance inquiry.”  Id. at 479.  Given the varied conditions at each class member’s property, the Court reasoned, “[t]he district court's narrowing and separating of the issues ultimately unravels and undoes any efficiencies gained by the class proceeding because many individual issues will require trial.”  Id. 

With similar reasoning, the Court held that the class also failed to satisfy the requirements of a declaratory or injunctive relief class: “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class.” Id. at 480 (quotation omitted).  Because different conditions at each neighboring property would require different remediation, a single judgment would be inadequate.

This article was prepared with the assistance of Lynne Howard.

© 2020 Beveridge & Diamond PC National Law Review, Volume VI, Number 218

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Daniel M. Krainin Environmental Litigation Attorney Beveridge & Diamond New York, NY
Principal

Dan deploys more than two decades of environmental litigation experience to resolve clients’ legal and business challenges.

Primarily focused on environmental and toxic tort litigation, Dan helps clients successfully resolve groundwater contamination, hazardous waste site remediation, natural resource damages, permit defense and product-related matters. He enjoys using his skills as a litigator to help clients solve environmental problems.

Among his many wins, Dan successfully led a team that defeated an emergency challenge to a permit that Dan’s client needed to continue its...

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Graham C. Zorn Environmental, Toxic Tort, Products Liability Litigation Attorney Beveridge & Diamond Washington, DC
Principal

Graham Zorn focuses his practice on environmental, toxic tort, and products liability litigation.

His representative experience includes extensive work on a series of complex products liability and toxic tort cases related to alleged groundwater, and litigation over lead in drinking water. He has represented individual businesses, trade associations, and municipalities in litigation, as well as in compliance, enforcement, and counseling matters involving the Clean Air Act, the Clean Water Act, CERCLA and other state and federal environmental statutes. He also counsels domestic and international clients on a variety of product compliance, market access, and enforcement matters. In particular, he is well versed in reporting requirements related to conflict mineral use in electronics, medical devices, and consumer products.

Graham obtained his law degree from Vermont Law School where he was a Head Notes Editor for the Vermont Law Review and a student clinician in the Environment and Natural Resources Law Clinic. During law school, he clerked at the Wisconsin Department of Justice in the Environmental Protection Unit where he assisted in defending state agencies in a citizen suit alleging Clean Air Act new source review violations.

Before law school, Graham worked on domestic social policy, with a focus on health care, and environment and energy policy for U.S. Senator Russ Feingold. He obtained his undergraduate degree from Carleton College with a major in Geology. 

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