A recent Eight Circuit decision highlights the difficulties in obtaining class action status in toxic tort actions. In Ebert, et al. v. General Mills, Inc., Class Action Plaintiffs alleged that General Mills released TCE onto the ground and into the environment causing the TCE in soil vapors to threaten homes and businesses in the surrounding neighborhood. 

The Plaintiffs sought class certification on two issues: (1) whether General Mills is liable to home owners of the properties in the defined neighborhood and (2) whether injunctive relief warranted comprehensive remediation.  The U.S. District Court of Minnesota granted the class certification by bifurcating the Plaintiffs claims and reasoning that individual issues do not predominate over the common issues in the claims for which class certification was sought.  In an opinion issued on May 20, 2016, the U.S. Court of Appeals for the 8th Circuit held that the district court’s grant of class certification was an abuse of discretion.  The Court based its opinion on Federal Rule of Civil Procedure 23(b)(3), which requires that issues common to the class must predominate over individual issues.  The Court reasoned that determining General Mill’s liability will require examining whether vapor contamination, if any, threatens or exists on each individual property as a result of General Mills actions.  With this property-by-property analysis, “individual proof necessary to resolve the issues abounds” and the class action failed “for lack of cohesion.”  The case was remanded to the district court with directions to revisit the issues in conformity with the Court’s holding.  This decision highlights the difficulties in obtaining class action status in toxic tort actions. Alleged damages to property and health effects are highly individualized inquiries unlikely to be certified as class actions.

For more information, please contact Kate Warihay.