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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.

© 2020 Beveridge & Diamond PC National Law Review, Volume VI, Number 146


About this Author

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

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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Eric L. Klein Environmental Litigation Attorney Beveridge & Diamond Boston, MA

Eric makes complex subjects simpler.

He is an environmental litigator in the Boston office of Beveridge & Diamond, with a national practice representing major companies and municipalities in a wide variety of matters including environmental and mass torts, class actions, and federal citizen suits under environmental statutes including the Clean Water Act, the Safe Drinking Water Act, and the Clean Air Act. He has handled cases in state and federal courts throughout the United States, litigating complex civil and commercial matters before juries, trial and appellate courts,...

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

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...