June 18, 2018

June 18, 2018

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Tenth Circuit Bars Class Tort Claims for Failing to Plead Injury

Underscoring the importance of pleading actual injury in a toxic tort class action, the U.S. Court of Appeals for the Tenth Circuit dismissed Oklahoma class claims that were based only on “reasonable concern” of future injury and a summary statement of alleged health effects.  See Reece v. AES Corp., No. 14-7010 (10th Cir. Apr. 20, 2016). 

Putative class Plaintiffs alleged injuries relating to Defendants’ disposal of coal combustion waste and wastewater generated in oil and gas drilling operations.  On Defendants’ motion, the trial court dismissed with prejudice Plaintiffs’ strict liability, negligence, and negligence per se claims.

On appeal, the Tenth Circuit upheld the District Court’s decision, noting that Oklahoma law requires pleading an actual injury.  Here, Plaintiffs’ “reasonable concern” about possible exposure to fly ash particles and groundwater contamination from drilling wastewater was insufficient to state a claim: “Alleging reasonable concern about an injury occurring in the future is not sufficient to allege an actual injury in fact.”   Id. at 48.  The court also noted that Plaintiffs did not plead any examples of injuries to specific Plaintiffs:  “Their summary statement of health effects is nothing more than a rote recitation of general harms” and is therefore insufficient to satisfy the injury element of Plaintiffs’ claims.  Id. at 49-50.

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About this Author

Gayatri M. Patel, Environmental Attorney, Beveridge & Diamond Law Firm

Gayatri (“Gaya”) Patel maintains a general litigation, regulatory, and environmental practice. Gaya also works on a variety of pro bono matters, including landlord/tenant, estate planning, and immigration matters.

(202) 789-6072
Daniel M. Krainin, Environmental Attorney, Beveridge Diamond Law Firm

Daniel M. Krainin is a Principal in the New York office of Beveridge & Diamond, P.C.  He was named to the 2011 and 2012 Super Lawyers list for the New York Metropolitan area, holds an AV Preeminent Peer Review Rating from Martindale-Hubbell, and serves as a Vice Chair of the ABA Environment Section's Environmental Litigation and Toxic Torts Committee.

212-702 5417
Eric Klein, environmental attorney, Beveridge & Diamond, P.C.

Eric L. Klein is an environmental civil litigator and regulatory counselor in the Washington, D.C. office of Beveridge & Diamond, P.C.  He has handled cases in state and federal courts throughout the United States, litigating a variety of complex civil and commercial matters before juries, trial and appellate courts, arbitrators and administrative tribunals.  Mr. Klein frequently litigates both statutory and common law claims, and specializes in challenging and defending technical experts in the litigation of complex environmental torts.

Graham C. Zorn, Environmental Law Attorney, Beveridge Diamond Law Firm

Graham C. Zorn is an Associate in the Washington, D.C. office of Beveridge & Diamond, P.C., with a general litigation, regulatory, and environmental practice.  Graham has represented individual businesses, trade associations, and municipalities in compliance, enforcement, and counseling matters involving the Clean Air Act, the Clean Water Act, CERCLA and other state and federal statutes.  He has worked extensively on a series of complex products liability and toxic tort cases related to alleged groundwater contamination involving a gasoline additive.  Graham has also counseled domestic...