Sullivan et al v. Saint-Gobain Performance Plastics Corporation

RESPONSE in Opposition re MOTION to Certify Class

D. Vt.November 27, 2018

UNITED STATES DISTRICT COURT DISTRICT OF VERMONT JAMES D. SULLIVAN et al., individually, and on behalf of a Class of persons similarly situated, Plaintiffs, v. SAINT-GOBAIN PERFORMANCE PLASTICS CORPORATION, Defendant. Case No. 5:16-cv-00125-GWC Hon. Geoffrey W. Crawford SAINT-GOBAIN’S MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 1 of 51 i TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii PRELIMINARY STATEMENT .................................................................................................... 1 PLAINTIFFS’ PROPOSED CLASS DEFINITIONS .................................................................... 6 STANDARD FOR CLASS CERTIFICATION ............................................................................. 8 ARGUMENT ................................................................................................................................ 10 I. THE PROPOSED CLASSES ARE BESET WITH CONFLICTS OF INTEREST THAT DEFEAT TYPICALITY AND ADEQUACY ............................................................................................. 10 II. INDIVIDUAL ISSUES OVERWHELMINGLY PREDOMINATE OVER COMMON ISSUES, IF ANY ................................................................................................................................... 13 A. Plaintiffs Must Show That Central Elements of the Claims Answerable With Common Evidence Predominate Over Those That Require Individual Proof .................................................................................................... 14 B. Individual Issues Predominate for the Proposed Exposure Class ......................... 16 1. Increased Risk Depends on Each Class Member’s Circumstances .......... 17 2. The Usefulness of Medical Monitoring Depends on Individual Needs......................................................................................................... 20 3. Liability Raises Individual Issues of Alternate Exposure ......................... 23 4. Threshold Proof of Exposure Is Individualized ........................................ 25 5. The Class Is Subject to Individualized Affirmative Defenses .................. 26 C. Individual Issues Predominate for the Proposed Property Class .......................... 27 1. “Actual or Threatened Contamination” Requires Individual Tests .......... 28 2. Liability Requires Location-Specific Information for Alternate Cause ......................................................................................................... 28 3. Damages—and Injury—Depend on Each Individual’s Circumstances ........................................................................................... 29 D. A Class Action Is Not Superior for These Individualized, High-Value Claims ................................................................................................................... 33 III. DUKES BARS PLAINTIFFS’ ATTEMPT TO AVOID INDIVIDUAL ISSUES WITH MEDICAL MONITORING THROUGH INJUNCTIVE CLASS CERTIFICATION UNDER RULE 23(B)(2) ........ 34 A. Medical Monitoring Is Not Injunctive Relief, But Damages, and Thus Not Certifiable Under Rule 23(b)(2) ............................................................................ 34 B. Rule 23(b)(2) Certification Is Barred Because Not All Putative Class Members Would Be Entitled to the Same Injunction ........................................... 36 IV. PLAINTIFFS CANNOT PROCEED THROUGH AN ISSUE CLASS UNDER RULE 23(C)(4) ........... 37 V. BOTH PROPOSED CLASS DEFINITIONS POSE INCURABLE PROBLEMS OF STANDING ........... 39 CONCLUSION ............................................................................................................................. 40 Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 2 of 51 ii TABLE OF AUTHORITIES Page(s) Cases Adams v. S. Farm Bureau Life Ins. Co., 493 F.3d 1276 (11th Cir. 2007) ...............................................................................................33 Allen v. Pa. Eng’g Corp., 102 F.3d 194 (5th Cir. 1996) ...................................................................................................40 Am. Honda Motor Co. v. Allen, 600 F.3d 813 (7th Cir. 2010) .....................................................................................................9 In re Am. Med. Sys., Inc., 75 F.3d 1069 (6th Cir. 1996) ...................................................................................................10 Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) ......................................................................................................... passim Arch v. Am. Tobacco Co., Inc., 175 F.R.D. 469 (E.D. Pa. 1997) .........................................................................................34, 38 In re Asacol Antitrust Litig., 907 F.3d 42 (1st Cir. 2018) .............................................................................................. passim Ball v. Union Carbide Corp., 385 F.3d 713 (6th Cir. 2004) ........................................................................................... passim Barnes v. Am. Tobacco Co., 161 F.3d 127 (3d Cir. 1998)............................................................................................. passim Barraza v. C. R. Bard Inc., 322 F.R.D. 369 (D. Ariz. 2017) ...................................................................................21, 35, 36 In re Baycol Prods. Liab. Litig., 218 F.R.D. 197 (D. Minn. 2003)..............................................................................................37 Benefield v. Int'l Paper Co., 270 F.R.D. 640 (M.D. Ala. 2010) ............................................................................................13 In re Blood Reagents Antitrust Litig., 783 F.3d 183 (3d Cir. 2015).......................................................................................................9 Blyden v. Mancusi, 186 F.3d 252 (2d Cir. 1999).....................................................................................................38 Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 3 of 51 iii Boughton v. Cotter Corp., 65 F.3d 823 (10th Cir. 1995) .........................................................................................8, 23, 35 Brecher v. Republic of Argentina, 806 F.3d 22 (2d Cir. 2015).........................................................................................................6 Bridge v. Phx. Bond & Indem. Co., 553 U.S. 639 (2008) ...................................................................................................................1 Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331 (4th Cir. 1998) ...................................................................................................31 Brown v. Kelly, 609 F.3d 467 (2d Cir. 2010).....................................................................................................13 Castano v. American Tobacco Co., 84 F.3d 734 (5th Cir. 1996) .......................................................................................................8 Clark v. Experian Info. Solutions, Inc., 2001 WL 1946329 (D.S.C. 2001) ............................................................................................12 Clark v. State Farm Mut. Auto. Ins. Co., 245 F.R.D. 478 (D. Colo. 2007), aff’d, 590 F.3d 1134 (10th Cir. 2009) .................................34 Coleman v. Union Carbide Corp., 2013 WL 5461855 (S.D. W. Va. 2013) ...................................................................................13 Comcast Corp. v. Behrend, 569 U.S. 27 (2013) ...........................................................................................................1, 8, 15 In re Conagra Peanut Butter Prods. Liab. Litig., 251 F.R.D. 689 (N.D. Ga. 2008) ..............................................................................................38 Corley v. Orangefield Indep. Sch. Dist., 152 F. App’x 350 (5th Cir. 2005) ............................................................................................32 Cotramano v. United Techs. Corp., 2018 WL 2047468 (S.D. Fla. 2018) ........................................................................6, 28, 29, 31 Crosby v. Soc. Sec. Admin. of U.S., 796 F.2d 576 (1st Cir. 1986) ....................................................................................................26 Dacey v. Design, 2003 WL 25652480 (Vt. Super. Ct. 2003)...............................................................................39 Day v. NLO, 851 F. Supp. 869 (S.D. Ohio 1994) .........................................................................................35 Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 4 of 51 iv Denney v. Deutsche Bank AG, 443 F.3d 253 (2d Cir. 2006).....................................................................................................39 DL v. D.C., 713 F.3d 120, 126 (D.C. Cir. 2013) .........................................................................................14 Donovan v. Philip Morris USA, Inc., 2012 WL 957633 (D. Mass. 2012) ..........................................................................................15 Eaton v. Prior, 192 Vt. 249 (2012) ...................................................................................................................26 Ebert v. Gen. Mills, Inc., 823 F.3d 472 (8th Cir. 2016) ........................................................................................... passim Feinstein v. Firestone Tire & Rubber Co., 535 F. Supp. 595 (S.D.N.Y. 1982) ..........................................................................................12 In re Fibreboard Corp., 893 F.2d 706 (5th Cir. 1990) ...................................................................................................26 Fiorentino v. Cabot Oil & Gas Corp., 2011 WL 5239068 (M.D. Pa. 2011) ........................................................................................21 Fisher v. Ciba Specialty Chems. Corp., 238 F.R.D. 273 (S.D. Ala. 2006) .................................................................................28, 30, 31 In re Fosamax Prods. Liab. Litig., 248 F.R.D. 389 (S.D.N.Y. 2008) ...........................................................................12, 20, 22, 34 Gasoline Prods. Co. v. Champlin Ref. Co., 283 U.S. 494 (1931) .................................................................................................................38 Gates v. Rohm & Haas, 655 F.3d 255 (3d Cir. 2011)............................................................................................. passim Gen. Tel. Co. v. Falcon, 457 U.S. 147 (1982) ...................................................................................................................9 Gibbs v. E.I. DuPont de Nemours & Co., 876 F. Supp. 475 (W.D.N.Y 1995) ..........................................................................................34 Hanon v. Dataproducts Corp., 976 F.2d 497 (9th Cir. 1992) ...................................................................................................13 Hostetler v. Johnson Controls, Inc., 2018 WL 3868848 (N.D. Ind. Aug. 15, 2018) ...................................................................37, 38 Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 5 of 51 v In re IPO Sec. Litig., 471 F.3d 24 (2d Cir. 2006).........................................................................................................9 Krueger v. Wyeth, Inc., 2008 WL 481956 (S.D. Cal. 2008) ..........................................................................................12 Lafferty v. Sherwin-Williams Co., 2018 WL 3993448 (D.N.J. 2018) ......................................................................................25, 26 Lewallen v. Medtronic USA, Inc., 2002 WL 31300899 (N.D. Cal. 2002) ...............................................................................22, 35 Lockheed Martin Corp. v. Super. Court, 63 P.3d 913 (Cal. 2003) ...........................................................................................................22 Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) ...........................................................................................................29, 39 Martin v. Behr Dayton Thermal Prod. LLC, 896 F.3d 405 (6th Cir. 2018) ...................................................................................................38 Martin v. Shell Oil Co., 198 F.R.D. 580 (D. Conn. 2000)..............................................................................................28 Mays v. TVA, 274 F.R.D. 614 (E.D. Tenn. 2011).....................................................................................12, 13 McGuire v. Int’l Paper Co., 1994 WL 261360 (S.D. Miss. 1994) ........................................................................................26 McLaughlin v. Am. Tobacco Co., 522 F.3d 215 (2d Cir. 2008)............................................................................................. passim Metro-N. Commuter R.R. Co. v. Buckley, 521 U.S. 424 (1997) .................................................................................................................34 Mejdrech v. Met-Coil Sys. Corp., 319 F.3d 910 (7th Cir. 2003) .................................................................................23, 24, 30, 38 Modern Holdings v. Corning, 2018 WL 1546355 (E.D. Ky. 2018) ..................................................................................12, 26 Morris v. Davita Healthcare Partners, Inc., 308 F.R.D. 360 (D. Colo. 2015) ..............................................................................................13 In re MTBE Prods. Liab. Litig., 209 F.R.D. 323 (S.D.N.Y. 2002) .......................................................................................12, 38 Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 6 of 51 vi Myers v. Hertz Corp., 624 F.3d 537 (2d Cir. 2010)...........................................................................................9, 15, 26 Myrick v. Peck Elec. Co., 164 A.3d 658 (Vt. 2017) ..........................................................................................................40 Nafar v. Hollywood Tanning Sys., Inc., 339 F. App’x 216 (3d Cir. 2009) .............................................................................................12 In re Nassau Cty. Strip Search Cases, 461 F.3d 219 (2d Cir. 2006).....................................................................................................37 In re NCAA Student-Athlete Concussion Injury Litig., 314 F.R.D. 580 (N.D. Ill. 2016) ...............................................................................................38 O’Neal v. Dep’t of the Army, 852 F. Supp. 327 (M.D. Pa. 1994) ...........................................................................................40 Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999) ...................................................................................................................8 Parker v. Town of Milton, 169 Vt. 74 (1998) .....................................................................................................................29 Parko v. Shell Oil Co., 739 F.3d 1083 (7th Cir. 2014) ......................................................................................... passim Perez v. Metabolife Intern., Inc., 218 F.R.D. 262 (S.D. Fla. 2003) ............................................................................20, 21, 25, 26 In re Prempro, 230 F.R.D. 555 (E.D. Ark. 2005).............................................................................................37 In re Propulsid Prods. Liab. Litig., 208 F.R.D. 133 (E.D. La. 2002)...............................................................................................35 Redland Soccer Club, Inc. v. Department of the Army, 696 A.2d 137 (Pa. 1997) ..........................................................................................................16 Reilly v. Gould, Inc., 965 F. Supp. 588 (M.D. Pa. 1997) ...........................................................................................11 In re Rezulin Prods. Liab. Litig., 210 F.R.D. 61 (S.D.N.Y. 2002) ...............................................................................................35 Rhodes v. E.I. du Pont de Nemours & Co., 636 F.3d 88 (4th Cir. 2011) .....................................................................................................39 Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 7 of 51 vii Rhodes v. E.I. duPont de Nemours & Co., 253 F.R.D. 365 (S.D. W. Va. 2008), appeal dism’d, 636 F.3d 88 (4th Cir. 2011) ................................................................................................................................ passim In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293 (7th Cir. 1995) ...................................................................................................38 Rink v. Cheminova, Inc., 203 F.R.D. 648 (M.D. Fla. 2001), appeal denied as moot, 400 F.3d 1286 (11th Cir. 2005) .................................................................................................................................20 Rowe v. E.I. duPont de Nemours & Co., 2008 WL 5412912 (D.N.J. 2008) .................................................................................... passim Sher v. Raytheon Co., 419 F. App’x 887 (11th Cir. 2011) ............................................................................................9 In re St. Jude Med., Inc., 425 F.3d 1116 (8th Cir. 2005) ......................................................................................... passim In re St. Jude Med., Inc., 522 F.3d 836 (8th Cir. 2008) .........................................................................................8, 16, 38 Stepp v. Monsanto Research Corp., 2012 WL 604328 (S.D. Ohio 2012).........................................................................................15 Sterling v. Velsicol Chemical Co., 855 F.2d 1188 (6th Cir. 1988) ...................................................................................................8 M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832 (5th Cir. 2012) ...................................................................................................14 Sutera v. Perrier Grp. of Am. Inc., 986 F. Supp. 655 (D. Mass. 1997) ...........................................................................................40 In re Teflon Prods. Liab. Litig., 254 F.R.D. 354 (S.D. Iowa 2008) ............................................................................................12 Thompson v. Am. Tobacco Co., 189 F.R.D. 544 (D. Minn. 1999)..............................................................................................12 Tyson Foods, Inc. v. Bouaphakeo, 136 S.Ct. 1036 (2016) ..............................................................................................................14 Unger v. Amedisys Inc., 401 F.3d 316 (5th Cir. 2005) .....................................................................................................9 Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 8 of 51 viii Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) ......................................................................................................... passim Walsh v. Cluba, 198 Vt. 453 (2015) ...................................................................................................................39 In re Welding Fume Prods. Liab. Litig., 245 F.R.D. 279 (N.D. Ohio 2007) ...........................................................................................37 Yslava v. Hughes Aircraft Co., 845 F. Supp. 705 (D. Ariz. 1993) ............................................................................................35 Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, amended, 273 F.3d 1266 (9th Cir. 2001) ..............................................8, 34, 35 Statutes and Rules 10 V.S.A. § 1410........................................................................................................................4, 29 12 V.S.A. § 512..............................................................................................................................26 28 U.S.C. § 2072 ............................................................................................................9, 12, 32, 36 Fed. R. Civ. P. 23 ................................................................................................................... passim Fed. R. Evid. 701 ...........................................................................................................................31 Fed. R. Evid. 702 .............................................................................................................................9 Other Authorities McLaughlin on Class Actions (13th ed. 2016) ..........................................................................8, 37 Newberg on Class Actions (5th ed. 2017) ......................................................................................15 Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 9 of 51 1 PRELIMINARY STATEMENT As “‘an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only,’” proposed class actions require “‘rigorous analysis’” and are subject to strict procedural, statutory, and due process limits. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348, 350-51 (2011) (citation omitted); McLaughlin v. Am. Tobacco Co., 522 F.3d 215, 232 (2d Cir. 2008), abrogated on other grounds by Bridge v. Phx. Bond & Indem. Co., 553 U.S. 639 (2008). Due process and the Rules Enabling Act do not permit class adjudication if it would “do away with the rights” that a party—whether a defendant or an absent class member—“would customarily have to raise plausible individual challenges” on the certified claims. In re Asacol Antitrust Litig., 907 F.3d 42, 51-52 (1st Cir. 2018). Rule 23 provides a variety of measures to ensure this constitutional standard is met. Under Rule 23(a), the named plaintiffs must be adequate representatives of the class and possess claims typical of the class. Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013). Then, Rule 23(b) and (c) enumerate the requirements for the valid types of class actions, each of which imposes protections for individualized claims and defenses. A damages class under Rule 23(b)(3) must show that there are common issues dispositive to the claims of the class that can be resolved “in one stroke” and that predominate over the individual issues. Dukes, 564 U.S. at 350. An injunctive class under Rule 23(b)(2) is permitted only if the entire class would be entitled to the same injunction. Id. at 360-61. And an issue class under Rule 23(c)(4) cannot be certified if any common questions are merely preliminary to individual issues essential to the claims of the putative class. McLaughlin, 522 F.3d at 234. Plaintiffs cannot meet these standards. Their proposed classes seek medical monitoring and property/groundwater damage arising from the presence of perfluorooctanoic acid (PFOA) in groundwater in Bennington and North Bennington, Vermont. They attribute the PFOA to past manufacturing activities at Chemfab facilities. Plaintiffs seek to assert tort and statutory claims on behalf of all those who have property interests or who ingested water in an area that Plaintiffs call the “Zone of Contamination.” But tort claims have long been disfavored for class treatment because the class mechanism cannot resolve individual issues of injury, causation, liability, and Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 10 of 51 2 damage unique to each tort plaintiff. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997). As set forth below, Plaintiffs’ testimony and that of their experts show each of these elements is rife with individual issues that preclude certification. Plaintiffs’ motion for class certification is based on an outdated view of the law that the Supreme Court and other federal appellate courts have decisively rejected over the last 20 years. Plaintiffs fail even to cite the Supreme Court’s landmark decision in Dukes, which heightened the analysis to establish commonality and to obtain certification, and superseded most of the cases on which Plaintiffs rely. They ignore the unanimous consensus of numerous federal appellate courts in rejecting the certification of medical monitoring class actions because individual, not common, issues predominate. They likewise ignore the three federal appellate courts that have, since Dukes, considered and rejected the certification of property damage class actions. And they barely acknowledge the two prior federal cases—Rowe and Rhodes—that denied the certification of putative class actions, similar to the ones proposed here, arising out of the presence of PFOA in groundwater. These precedents establish that individualized issues pervade these claims and preclude satisfaction of the “rigorous” requirements of Rule 23. Individual Issues Overwhelm the Proposed Exposure / Medical Monitoring Class Even if state law permits medical monitoring for asymptomatic plaintiffs—and Vermont does not—the federal appellate authorities and PFOA cases hold the lack of a physical injury requirement does not diminish the individualized nature of the claim. None of the elements of a medical monitoring claim—exposure, causation, liability, increased risk, and need for future testing—can be resolved without addressing individual issues. Plaintiffs’ medical expert, Alan Ducatman, M.D., readily admits there are more than 15 individual differences that affect a claim for medical monitoring, including the amount of PFOA one is exposed to, blood serum levels, age, gender, physiology, water consumption, level of PFOA in water, the source of the water, a person’s diet, nutrition, drug and alcohol use, body mass index, general health, pregnancy, susceptibilities Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 11 of 51 3 to PFOA, if any, and other factors. (Ducatman Tr. at 55:25-61:12.) 1 Those individual differences pervade the proposed class. Whether any individual experienced an increased risk of future health conditions allegedly due to PFOA depends on, among other things, the individual’s background risk and general health, which vary due to the many “considerable individual differences” acknowledged by Dr. Ducatman. (Id. at 55:23-61:4.) Likewise, whether any alleged increased risk may warrant monitoring also depends on what medical care each individual already receives, and on the potential benefits and increased risks of additional testing given their individual circumstances. Barnes v. Am. Tobacco Co., 161 F.3d 127, 146 (3d Cir. 1998). And individual inquiries are necessary to determine whether putative class members (like all the named Plaintiffs) already have one of the health conditions at issue and, thus, do not need monitoring. Ball v. Union Carbide Corp., 385 F.3d 713, 728 (6th Cir. 2004). Issues arising from causation are also individualized due to differences in the sources of PFOA exposure, which may be attributable to other sources in groundwater or to other environmental or occupational exposures. See Gates v. Rohm & Haas, 655 F.3d 255, 265 (3d Cir. 2011). Because PFOA was an unregulated chemical “widely found” in diverse products (see TAC, Dkt. 113, ¶ 17), whether any class member’s exposure to PFOA was attributable to the Chemfab facilities or to other sources is inherently individualized. For instance, a study by the Vermont Department of Health found that 14% of respondents in the proposed class area had occupational exposure to PFOA. Likewise, liability depends on foreseeability, which varies according to each individual’s location relative to the alleged source of PFOA and the time of the alleged releases and exposures. See Barnes, 161 F.3d at 146. Even the threshold issue of exposure, which is central both to the merits and class membership, is individualized. The proposed exposure class is defined as current and former 1 All non-docket documents cited herein are submitted with Saint-Gobain’s Omnibus Declaration and Exhibits, in which they may be located in the alphabetical table of contents by their short citation used in this brief. Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 12 of 51 4 residents of the putative class area with PFOA in their blood above purported “background levels.” There is no common basis to identify those individuals—rather, it would require blood tests for anyone who lived in the putative class area for the last several decades. That threshold inquiry is even more complicated because it may show an individual to be a member of multiple, overlapping putative classes—e.g., the PFOA putative class actions concerning different and additional defendants in Petersburgh, New York, and Hoosick Falls, New York. Determining which class action would adjudicate and release each member’s claim would be hopelessly unmanageable. Thus, the medical monitoring claims of the proposed exposure class entail an overwhelming predominance of individual issues that precludes certification of a damages class under Rule 23(b)(3). Nor can Plaintiffs save the proposed exposure class by attempting to shoehorn their medical monitoring damages claims into an injunctive class action under Rule 23(b)(2). Such certification is barred where, as here, individual circumstances render each putative class member “entitled to a different injunction.” Dukes, 564 U.S. at 360-61 (emphasis omitted). Individual Issues Overwhelm the Proposed Property Class Plaintiffs’ proposed property class fares no better. Every element of these claims is individualized—the presence of PFOA at a claimant’s property, causation, liability, and damages. Plaintiffs cannot prove the presence of PFOA on their property, much less injury, on a class-wide basis, which requires individualized soil and water tests. Plaintiffs’ experts all deny being able to determine the presence or amount of PFOA at any property with common evidence. Causation is individualized because some putative class members, including named Plaintiffs, have potential alternate sources of PFOA in groundwater on their property. Thus, they “could well have experienced different levels of contamination, implying different damages, caused by different” entities. Parko v. Shell Oil Co., 739 F.3d 1083, 1085 (7th Cir. 2014). As with the exposure class, liability issues in tort are interwoven with individual questions of foreseeability that vary based on each property’s location and the time of releases and exposures to PFOA. Likewise, groundwater protection claims present individual questions under Vermont’s nine-factor test for determining “unreasonable harm” to groundwater. 10 V.S.A. § 1410(e). Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 13 of 51 5 Finally, whether a property owner experienced a diminution in value is undisputedly property-specific. Parko, 739 F.3d at 1086; Ebert v. Gen. Mills, Inc., 823 F.3d 472, 479 (8th Cir. 2016). Plaintiffs do not purport to prove it on a common basis, and their expert Robert Unsworth says Plaintiffs are not “seeking class certification for purposes of establishing monetary damages associated with property value diminution.” (Unsworth Prop. Reb. Rpt. at 1-2.) So, too, whether a Plaintiff incurred any added costs in relation to the groundwater protection claims cannot be answered by applying “average” cost data, but must be evaluated individually. Individual Issues Defeat The Proposed Issue Class Finally, the predominance of individual issues in this case cannot be escaped through the use of a single issue class under Rule 23(c)(4). Initially, Plaintiffs fail to identify any issue central to the validity of the claims of the putative classes that can actually be decided based entirely on common evidence. Issue class treatment is barred both by Second Circuit law and the Seventh Amendment because the any common questions are inextricably intertwined with controlling individual issues. See McLaughlin, 522 F.3d at 234; Ebert, 823 F.3d at 479. * * * Denying class certification does not foreclose claims for individualized relief. And to the extent common remedies are appropriate, they have already been and are being implemented at Saint-Gobain’s expense through its joint work with Vermont’s DEC. Saint-Gobain has ensured there is PFOA-free water in the putative class area by providing bottled water, installing filtration systems on home water wells, and agreeing to connect homes to the municipal water system, among other individually tailored remedies. Unlike Plaintiffs’ demand for one-size-fits-all relief, those administrative remedies provide appropriate, tailored solutions for residents of the putative class area. Additional relief may be sought through individual actions reflecting individual concerns—not the overbroad, ill-fitting class actions proposed here, which prejudices Saint- Gobain’s rights and cannot adequately address the interests of the individuals it purports to represent. Plaintiffs thus fail to satisfy Rule 23’s requirements and certification should be denied. Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 14 of 51 6 PLAINTIFFS’ PROPOSED CLASS DEFINITIONS Though Plaintiffs bear the burden on establishing their classes should be certified, their motion conspicuously fails to even set forth their proposed class definitions: Exposure Class: “All persons, whether minor or adult, including any person claiming by, through, or under a Class Member, who, as of the time a class is certified in this case, have resided in the Zone of Contamination and have ingested PFOA- contaminated water in the Zone of Contamination and who have suffered accumulation of PFOA in the bodies as demonstrated by blood serum tests disclosing a PFOA level in their blood above the recognized background levels.” Property Class: “All natural persons, whether minor or adult, including any person claiming by, through or under a Class Member, who have interests in real property within the Zone of Contamination, including, but not limited to, those persons whose private water supply wells have been found to be contaminated with PFOA above 20 ppt.” (TAC ¶ 77.)2 These definitions pose a host of practical and procedural problems. Class Area: Though Plaintiffs call the putative class area the “Zone of Contamination,” it is in fact “those areas … designated by the State of Vermont as ‘Designated Areas of Concern in North Bennington and Bennington’ on April 26, 2016, the boundaries of which being most recently delineated on April 17, 2017.” (TAC ¶ 76.) It does not describe properties specifically affected by PFOA, but rather the areas DEC is investigating, many of which have had no PFOA detected. (See id.) Plaintiffs admit “DEC has expanded the boundaries” of this area and that it “may continue to expand and require amendment and/or modification as defined.” (TAC ¶ 76.) This definition based on evolving administrative decision-making is “untethered to evidence of exposure or dose reconstruction data for each individual in the proposed class and medical evidence establishing a health risk posed by that exposure.” Cotramano v. United Techs. Corp., 2018 WL 2047468, at *11 (S.D. Fla. 2018). It fails to provide “objective criteria” for “the definite boundaries of a readily identifiable class.” Brecher v. Republic of Argentina, 806 F.3d 22, 25 & n.2 (2d Cir. 2015). Members: The proposed exposure class includes those who “have resided” in the putative class area, “ingested PFOA-contaminated water,” and have PFOA blood levels above 2 All eight named Plaintiffs seek to represent the proposed property class, and six (excepting Ted Crawford and Gordon Garrison) seek to represent the proposed exposure class. (Dkt. 121 at 3.) Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 15 of 51 7 “background” (TAC ¶ 77) (which Plaintiffs (mistakenly) define as 2.1 µg/L). Determining who is a member of the putative class would require providing notice to every current and former resident of that area, including former students at Bennington College, over nearly 50 years, each of whom would have to take a blood test. Likewise, the proposed property class is limited to “natural persons” (and thus does not include corporate, municipal, or religious entities). Yet it includes any type of “interests”—whether ownership, rental, or through a business association—“in real property”—whether single family homes, vacant lots, multi-family properties, commercial properties, or mobile home properties. It “includ[es], but [is] not limited to, those persons” whose wells tested “above” Vermont’s regulatory level of “20 ppt,” and thus also includes those whose wells tested from 0 to 20 ppt of PFOA and those on municipal water (i.e., “stigma” plaintiffs). (Id.) Plaintiffs offer no basis to represent the distinct interests of these different individuals. Exclusions: Though the exposure class excludes those who have filed an action alleging personal injuries from PFOA (id. ¶ 78(d)), it does not exclude those who experienced a personal injury they attribute to PFOA. Thus, the class includes both “exposure-only plaintiffs” and those who may be “currently injured,” whose interests are “not aligned.” Amchem, 521 U.S. at 626. Overlap with Other Putative Class Actions: This putative class action is one of three such actions seeking medical monitoring for PFOA in areas within 10 miles of one another. Plaintiffs have submitted supplemental authority noting that a New York state court certified the Burdick class action seeking medical monitoring for PFOA against Taconic Plastics in Petersburgh, New York. (Dkt. 191-1.) In addition, the Baker putative class action in the Northern District of New York seeks medical monitoring for PFOA against Saint-Gobain and Honeywell in Hoosick Falls, New York. See Compl., Baker v. Saint-Gobain Performance Plastics Corp., 16- cv-917 (N.D.N.Y.). Both the Burdick and Baker class actions are defined with reference to those who have “ingested PFOA-contaminated water” within a certain proximity of the facilities at issue. See id. ¶ 135; (Dkt. 191-1 at 4-5.) As a result, any current or former resident of the class area in this case who has ever drunk water in the nearby towns of Petersburgh or Hoosick Falls may also be a member of these other putative class actions as well. Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 16 of 51 8 STANDARD FOR CLASS CERTIFICATION “[H]istorically, certification of mass tort litigation cases has been disfavored,” Castano v. Am. Tobacco Co., 84 F.3d 734, 746 (5th Cir. 1996), because such cases “present ‘significant questions, not only of damages but of liability and defenses of liability, ... affecting the individuals in different ways.’” Amchem, 521 U.S. at 625 (citation omitted). Since the Supreme Court’s decision in Amchem, the “overwhelming majority of … decisions in federal and state court have rejected class certification in mass tort and related property damage cases irrespective of the claims asserted by plaintiffs.” McLaughlin on Class Actions § 5:41 (13th ed. 2016). Every federal appellate court to consider a proposed medical monitoring class has refused certification. Barnes, 161 F.3d at 130; Gates, 655 F.3d at 265; Ball, 385 F.3d at 728; In re St. Jude Med., Inc., 425 F.3d 1116, 1120 (8th Cir. 2005); In re St. Jude Med., Inc., 522 F.3d 836, 840 (8th Cir. 2008); Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1196, amended, 273 F.3d 1266 (9th Cir. 2001); Boughton v. Cotter Corp., 65 F.3d 823, 825-26 (10th Cir. 1995). As to property damage, Plaintiffs rely on a few older decisions (Mot., Dkt. 107-1, at 18), but ignore more recent Supreme Court cases tightening class certification standards. See Amchem, 521 U.S. at 625; Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999); Dukes, 564 U.S. at 348; Comcast, 569 U.S. at 34. As the Manual for Complex Litigation cautions, Plaintiffs’ lead case, the 30-year-old decision in Sterling v. Velsicol Chemical Co., 855 F.2d 1188 (6th Cir. 1988), “should be read with caution in light of subsequent rulings of the Supreme Court and courts of appeals.” Id. at § 22.71 n.1310 (4th ed. 2004). No federal appellate decision subsequent to Dukes has approved certification of a Rule 23(b)(3) property damage class action. See Gates, 655 F.3d 255; Parko, 739 F.3d 1083; Ebert, 823 F.3d 472. “A party seeking class certification must affirmatively demonstrate his compliance with the Rule.” Dukes, 564 U.S. at 350-51. First, Plaintiffs must prove they meet the Rule 23(a) prerequisites: (1) numerosity, (2) common questions of law or fact, (3) typicality of class representative claims, and (4) adequate representation. Second, Plaintiffs must prove they meet requirements for one of the valid types of class actions—here, a damages class action, see Fed. R. Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 17 of 51 9 Civ. P. 23(b)(3), an injunctive class action, see id. 23(b)(2), or an issue class. See id. 23(c)(4). Plaintiffs bear the “burden” to show “by a preponderance of the evidence that each of Rule 23’s requirements has been met.” Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010). The opposing party need not disprove the requirements. See id. Moreover, any certification must also comply with the Rules Enabling Act and thus must be denied where it would “‘abridge, enlarge or modify any substantive right.’” Dukes, 564 U.S. at 367 (quoting 28 U.S.C. § 2072(b)). It is a “core principle that class actions are the aggregation of individual claims, and do not create a class entity or re-apportion substantive claims.” Asacol, 907 F.3d at 56. The Court must engage in independent scrutiny, and may not certify a class unless it is satisfied, after “rigorous analysis” that the criteria set forth in Rule 23 are met. Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982). Thus, “the district judge must receive enough evidence, by affidavits, documents, or testimony, to be satisfied that each Rule 23 requirement has been met.” In re IPO Sec. Litig., 471 F.3d 24, 41 (2d Cir. 2006), on reh’g, 483 F.3d 70 (2d Cir. 2007). A district court decides certification just as it “would resolve a dispute about any other threshold prerequisite for continuing a lawsuit,” and may “weigh conflicting evidence and determine the existence of a Rule 23 requirement,” even if it “is identical to an issue on the merits.” Id. As for Plaintiffs’ expert submissions, the Supreme Court in Dukes expressed “doubt” that expert testimony could be admitted for class certification without satisfying the Daubert standard. 564 U.S. at 354. A majority of the courts of appeals that have considered the question hold that Daubert and Rule 702 apply to expert testimony submitted for class certification. In re Blood Reagents Antitrust Litig., 783 F.3d 183, 187 (3d Cir. 2015); Am. Honda Motor Co. v. Allen, 600 F.3d 813, 815-16 (7th Cir. 2010); Sher v. Raytheon Co., 419 F. App’x 887, 890-91 (11th Cir. 2011); Unger v. Amedisys Inc., 401 F.3d 316, 323 n.6 (5th Cir. 2005); see also IPO, 471 F.3d at 42 (rejecting notion that expert evidence may be considered on class certification if it is not “fatally flawed”). As set forth in Saint-Gobain’s concurrently filed motion, Plaintiffs’ expert testimony proffered on class certification is inadmissible under Daubert and Rule 702. Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 18 of 51 10 ARGUMENT Plaintiffs’ motion for class certification fails in five critical respects, any one of which suffices to deny certification. First, the class definitions are beset with conflicts of interest that preclude a finding that the Rule 23(a) requirements of typicality and adequacy are satisfied. Second, Plaintiffs cannot satisfy a Rule 23(b)(3) damages class because individual issues predominate over common issues, if any. Third, Plaintiffs cannot use a Rule 23(b)(2) injunctive class to circumvent the individual issues arising with medical monitoring claims since they cannot show that such a class is sufficiently cohesive that all members are entitled to the same injunction. Fourth, Plaintiffs cannot use a Rule 23(c)(4) issue class to circumvent the individual issues that pervade their claims because any common issues certified there would be merely preliminary to the more fundamental individual issues that control Plaintiffs’ claims. Fifth, the proposed class definitions are fatally flawed because they include class members who lack standing. I. THE PROPOSED CLASSES ARE BESET WITH CONFLICTS OF INTEREST THAT DEFEAT TYPICALITY AND ADEQUACY Establishing typicality and adequacy under Rule 23(a) requires that “a class representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class members.” Dukes, 564 U.S. at 348-49 (citation omitted). “The adequacy inquiry … serves to uncover conflicts of interest between named parties and the class they seek to represent.” Amchem, 521 U.S. at 625. Here, the proposed classes comprise people with extremely varied interests and claims. Those diverse interests are not merely misaligned—rather, they are antagonistic, precluding findings of typicality and adequacy. Id. at 626; In re Am. Med. Sys., Inc., 75 F.3d 1069, 1083 (6th Cir. 1996). The named Plaintiffs are eight individuals who seek recovery for purported harms allegedly caused by the former Chemfab facilities. Plaintiffs vary widely as to an array of factors relevant to their claims. A small sampling of these many individual differences, too numerous to list, includes the following:  the levels of PFOA in their blood (compare, e.g., Sumner Tr. at 209:1-2 ( ), with L. Crawford Tr. at 84:23-24 (2.8 ppb)); Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 19 of 51 11  PFOA levels in the water at their homes (compare, e.g., L. Crawford Tr. at 93:19- 94:4 (4.1 ppt), with Sumner Tr. at 76:17-22 (420 ppt));  their proximity to the former Chemfab facilities (compare, e.g., Garrison Tr. at 107:13-19 (0.25 miles away) with T. Crawford Tr. at 173:9-14 (three miles));  their pre-existing medical conditions relevant to proposed monitoring (compare, e.g., Sullivan Tr. at 111:4-19 ( ), with Addison Tr. at 68:17- 70:4 163:11-166:3 ( ));  the medical care they already receive (compare, e.g., Sullivan Tr. at 111:4-19 ( ), with Hausthor Tr. at 181:14-23 ( ));  their length of residency in the proposed class area (compare, e.g., T. Crawford at 14:18-15:16, 16:8-17:3 (lived in Bennington for most of his life), with Addison Tr. at 10:6-22, 12:10-14 (lived in Bennington since 2008));  use of groundwater and well maintenance (compare, e.g., Garrison Tr. at 49:10-49:21 (uses town water), with Hausthor Tr. at 46:7-47:9 (uses well; no well maintenance)); and  when they knew of the alleged risks from the former Chemfab facilities (compare, e.g., Sumner Tr. at 87:14-88:10 (complained about odors/emissions in 1990s), with Knight Tr. at 156:17-23 (learned of PFOA in Bennington in early 2016)). The named Plaintiffs have all experienced ailments for which the proposed exposure class seeks medical monitoring, such that “ ” (Guzelian Rpt. at 96; see also Mandel Rpt. at 126 tbl. 11); see also Ball, 385 F.3d at 728. Yet the proposed class includes individuals with no alleged physical manifestations of PFOA exposure. As a result, there is a conflict of interest between the “named plaintiffs who already have” certain of the conditions proposed to be monitored, and the “unnamed plaintiffs who do not,” from whom they “have fundamentally different interests.” Ball, 385 F.3d at 728. As the Supreme Court has explained in rejecting certification of a mass tort class action, “the interest of exposure-only plaintiffs” is “not aligned” with those who may be “currently injured.” Amchem, 521 U.S. at 626. Indeed, “[a] named plaintiff’s claim may be adversely affected by facts which may prove to be helpful to another,” which “is especially true for the medical monitoring class.” Reilly v. Gould, Inc., 965 F. Supp. 588, 600 (M.D. Pa. 1997). A related conflict arises because the class definition includes absent members who have Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 20 of 51 12 “manifest personal injury,” unless they “have filed a lawsuit,” and may thus not be adequately represented by named Plaintiffs who have not experienced those injuries. (TAC ¶¶ 77, 78(d).) As recognized by the Department of Health, many absent members of the putative class have the conditions that Plaintiffs attribute to PFOA,3 including at least two absent members who claim they developed cancer from PFOA. (Sumner Tr. at 103:13-104:8.) Even more conflicts arise (Knight Tr. at 125:5-15), (Sumner Tr. at 151:2-9.) Courts hold that these conflicts lead to serious problems of claim-splitting. Absent class members with present alleged injuries may later file suit—for personal injury or property damage—only to learn they had impermissibly split a single cause of action. In re MTBE Prods. Liab. Litig., 209 F.R.D. 323, 338 (S.D.N.Y. 2002). Conversely, “[e]ach of the potential ‘exposure- only’ class members presents a conflict of interest against the interest of named plaintiffs who are currently injured.” Modern Holdings v. Corning, 2018 WL 1546355, at *16 (E.D. Ky. 2018) (citing Amchem, 521 U.S. at 626). Thus, Plaintiffs’ “efforts to reserve personal injury and damage claims” for future litigation “may, in fact, jeopardize the class members’ rights to bring such claims in a subsequent case,” Thompson v. Am. Tobacco Co., 189 F.R.D. 544, 550 (D. Minn. 1999), or may make Saint-Gobain subject to a second suit on claims it reasonably believed it already litigated. This is a “possible prejudice … too great” to permit certification. Id. at 551.4 This claim-splitting conflict is not curable. No pronouncement by this Court can modify substantive claim-splitting law, see 28 U.S.C. § 2072(b), or guarantee that a later court will not find that class members’ personal injury claims are barred. See MTBE, 209 F.R.D. at 340; Mays v. TVA, 274 F.R.D. 614, 623 (E.D. Tenn. 2011). Opt-out opportunities, which are available only 3 Vermont Department of Health Report, available at https://bit.ly/2OVYrAH. 4 See also, e.g., In re Fosamax Prods. Liab. Litig., 248 F.R.D. 389, 401 (S.D.N.Y. 2008); In re Teflon Prods. Liab. Litig., 254 F.R.D. 354, 368 (S.D. Iowa 2008); Feinstein v. Firestone Tire & Rubber Co., 535 F. Supp. 595, 606 (S.D.N.Y. 1982); Krueger v. Wyeth, Inc., 2008 WL 481956, at *3 (S.D. Cal. 2008); Nafar v. Hollywood Tanning Sys., Inc., 339 F. App’x 216, 224-25 (3d Cir. 2009); Clark v. Experian Info. Solutions, Inc., 2001 WL 1946329, at *3-*4 (D.S.C. 2001). Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 21 of 51 13 to Rule 23(b)(3) class members, are no substitute for compliance with Rule 23’s adequacy and superiority requirements. MTBE, 209 F.R.D. at 338 & n.23; Mays, 274 F.R.D. at 623. And excluding persons with current physical injuries from the class would only create an impermissibly unascertainable class whose membership turns on whether each putative class member has any of the conditions that Plaintiffs attribute to PFOA exposure. See Benefield v. Int’l Paper Co., 270 F.R.D. 640, 645 (M.D. Ala. 2010); Coleman v. Union Carbide Corp., 2013 WL 5461855, at *40 (S.D. W. Va. 2013). “[I]f a court must undertake extensive individualized inquiries into whether a putative member falls within the class definition, certification is not appropriate.” Morris v. Davita Healthcare Partners, Inc., 308 F.R.D. 360, 371 (D. Colo. 2015). Classes so riven with conflicts cannot be certified. Likewise, the named Plaintiffs are not typical of the proposed property class due to the variety of purported injuries they claim. Some are on municipal water with no PFOA. (Garrison Tr. at 114:23-115:13.) Among those with PFOA detected in their water, some exceed Vermont’s 20 ppt standard (Sullivan Tr. at 98:1-6), while others do not. (T. Crawford Tr. at 149:9-12.) Some may have preferred municipal water to begin with (Sumner Tr. at 245:13-22), while others would remain on well water if they could. (Sullivan Tr. at 64:21-65:3.) Some reluctantly agree to connect to municipal water, but with specialized concerns about problems from chlorine or fluoridation. (L. Crawford Tr. at 201:21-202:11.) Some have point-of-entry-treatment (POET) systems at this time, with any further remediation yet to be determined. (Knight Tr. at 64:4-7, 47:22-24.) This variety of alleged injuries gives rise to individualized defenses, which preclude the finding that the claims of these representatives are typical. Brown v. Kelly, 609 F.3d 467, 481 (2d Cir. 2010); Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). II. INDIVIDUAL ISSUES OVERWHELMINGLY PREDOMINATE OVER COMMON ISSUES, IF ANY Class certification should be denied because of the individual issues that pervade the claims of the putative classes. Under the record and the relevant caselaw, any common issues Plaintiffs may identify under Rule 23(a)(2) are overwhelmed by the incontrovertible predominance of individual issues in these claims. The questions in this case cannot be answered without evidence Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 22 of 51 14 that will be different for each person in the proposed classes, from residence-to-residence and occupant-to-occupant. Certification under Rule 23(b)(3) should thus be denied. A. Plaintiffs Must Show That Central Elements of the Claims Answerable With Common Evidence Predominate Over Those That Require Individual Proof Analysis of commonality and predominance is controlled by the Supreme Court’s landmark decision in Dukes, which “changed the landscape” for class certification, DL v. D.C., 713 F.3d 120, 126 (D.C. Cir. 2013), and “heightened the standards for establishing commonality.” M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 839 (5th Cir. 2012). Plaintiffs cite some cases to try to suggest common issues (Mot. at 18), but nearly all predate Dukes and are superseded by it. For example, while many of Plaintiffs’ cases found common questions due to a defendant’s purported “common course of conduct,” Dukes held such generalized factual or legal questions insufficient, since “[a]ny competently crafted class complaint literally raises common ‘questions.’” Dukes, 564 U.S. at 350 (citation omitted); accord Ebert, 823 F.3d at 478. As Dukes explained, it is not “the raising of common ‘questions’” that matters for class certification, “but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” 564 U.S. at 350 (citation omitted, emphasis added). Commonality thus requires that plaintiffs’ claims “depend upon a common contention … of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. (emphasis added). Thus, while “[a]n individual question is one where members of a proposed class will need to present evidence that varies from member to member, … a common question is one where the same evidence will suffice for each member to make a prima facie showing [or] the issue is susceptible to generalized, class-wide proof.” Tyson Foods, Inc. v. Bouaphakeo, 136 S.Ct. 1036, 1045 (2016) (quotation omitted). A common issue, then, is one that can “be resolved by way of generalized proof.” McLaughlin, 522 F.3d at 226 (emphasis added). Thus, an issue is not common if it is subject to individualized defenses. As Dukes holds, “a class cannot be certified on the premise that [the defendant] will not be entitled to litigate its ... Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 23 of 51 15 defenses to individual claims.” 564 U.S. at 367; see Myers, 624 F.3d at 551; Newberg on Class Actions § 4:55 (5th ed. 2017). Whether a given defense is affirmative or a challenge to the elements of the claim, there is “no reason” to give it “less weight” in the certification decision. Myers, 624 F.3d at 551. To find commonality without considering defenses would abridge the substantive rights of Saint-Gobain in violation of the Rules Enabling Act. Dukes, 564 U.S. at 367. Tellingly, no federal appellate court has approved certification of an environmental tort action under Rule 23(b) following Dukes.5 Still further, even if Plaintiffs could identify a common issue under Dukes, Rule 23(b)(3)’s “predominance criterion is far more demanding.” Amchem, 521 U.S. at 623-24; accord Comcast, 569 U.S. at 34. The requirement “tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Myers, 624 F.3d at 547. It permits certification only where it would be efficient “and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.” Id. It “is not determined simply by counting noses: that is, determining whether there are more common issues or more individual issues, regardless of relative importance.” Parko, 739 F.3d at 1085. Rather, predominance will be satisfied only “if resolution of some of the legal or factual questions … can be achieved through generalized proof, and if these particular issues are more substantial than the issues subject only to individualized proof.” Myers, 624 F.3d at 547. As the Second Circuit has explained, “Rule 23 is not a one-way ratchet, empowering a judge to conform the law to the proof.” McLaughlin, 522 F.3d at 220. 5 Plaintiffs cite two post-Dukes district court decisions—one a medical monitoring decision and the other an environmental property damage action—that denied motions to decertify class actions. Donovan v. Philip Morris USA, Inc., 2012 WL 957633 (D. Mass. 2012); Stepp v. Monsanto Research Corp., 2012 WL 604328 (S.D. Ohio 2012). Donovan ultimately culminated in a defense judgment, No. 06-12234, Dkt. 742 (D. Mass. Sept. 22, 2016), and neither decision has been subject to appellate review. Though Saint-Gobain submits that those decisions were erroneous for the same reasons that certification is barred in this case under Dukes, in light of the higher standard for motions to decertify, those decisions should not be followed here. Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 24 of 51 16 B. Individual Issues Predominate for the Proposed Exposure Class Federal appellate courts hold that medical monitoring is a “highly individualized remedy,” and “the common issues do not predominate over individual issues that must be litigated to resolve the plaintiffs’ claims.” St. Jude, 522 F.3d at 840-41; accord Gates, 655 F.3d at 269-70. Notably, Plaintiffs previously conceded to this Court that if medical monitoring is an individualized remedy, “it’s going to be very, very difficult to get a class certified.” (Dkt. 104 at 39.)6 While this Court has not determined that Vermont would recognize a claim for medical monitoring, it has noted that such claims generally consist of four elements: (1) exposure, (2) liability, (3) increased risk, and (4) availability of a useful medical monitoring regimen. (Dkt. 105 at 6.) As other PFOA cases have observed, these elements are inherently individualized. In Rowe v. E.I. duPont de Nemours & Co., 2008 WL 5412912 (D.N.J. 2008), the district court denied the certification of a Rule 23(b)(3) class seeking medical monitoring for alleged exposure to PFOA because at least “three of the essential elements of medical monitoring relief—namely, significant exposure, increased risk of disease, and necessity of medical monitoring—implicate numerous individualized issues.” Id. at *21. The Rowe court “set forth in great detail the litany of individualized issues that pervade Plaintiffs’ requests for medical monitoring.” Id. Likewise, in Rhodes, the district court denied certification of a Rule 23(b)(2) class action seeking medical monitoring for alleged exposure to PFOA due to the plaintiffs’ failure to show that the “claims can be proven by common rather than individualized proof.” Rhodes v. E.I. duPont de Nemours & Co., 253 F.R.D. 365, 374 (S.D. W. Va. 2008), appeal dism’d, 636 F.3d 88, 98-101 (4th Cir. 2011). The court concluded that “individualized inquiry” would be necessary to address whether “the class had been significantly exposed to [PFOA] relative to the general population; whether the plaintiffs could show that the class had a significantly increased risk of contracting a serious latent 6 Though this Court previously observed that Redland Soccer Club, Inc. v. Department of the Army, 696 A.2d 137 (Pa. 1997), “permitted a trial based on collective, not individual experience” (Dkt. 105 at 5), subsequent decisions of the Third Circuit have addressed the interplay between Redland Soccer and Rule 23. In Barnes, 161 F.3d at 138-46, and Gates, 655 F.3d at 264-70, the Third Circuit held that the individual issues presented by claims for medical monitoring under Redland Soccer precluded class certification under Rule 23. Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 25 of 51 17 disease; and whether the plaintiffs could demonstrate that diagnostic testing was necessary.” Id. at 380. The individualized issues associated with each of these elements preclude certification. 1. Increased Risk Depends on Each Class Member’s Circumstances Even if Vermont law were to recognize medical monitoring claims for an asymptomatic person, it would likely require Plaintiffs to show that exposure to PFOA from the former Chemfab facility “caused each individual plaintiff to have a significantly increased risk of contracting serious latent diseases thereby demonstrating the need for medical monitoring.” Barnes, 161 F.3d at 145. In Rowe, the federal district court denied certification of a medical monitoring class in another litigation alleging PFOA in groundwater—there, due to a DuPont facility in New Jersey. 2008 WL 5412912. The court explained that “personal health characteristics are just one of many individualized issues that pose a problem for the cohesiveness of the … class.” Id. at *12. Rather, “each class member’s risk of disease will differ depending on his/her background risk of disease and susceptibility to PFOA,” which “depend[s] largely on individual circumstances, such as gender, age, drug/alcohol use, nutrition, body mass index, physiology, behavior, medical history … and general state of health.” Id. at *17. As a result, “each class member would … have to demonstrate his/her specific exposure, how that exposure has increased his/her risk of disease, and his/her corresponding need for medical monitoring, all of which would require medical expert testimony specific to each individual.” Id. at *21; accord Rhodes, 253 F.R.D. at 376. Plaintiffs agree as to the existence of the individual differences identified by the court in denying class certification in Rowe, 2008 WL 5412912, at *17, 20-21. Their expert, Dr. Ducatman, admits that there are “so many” “considerable individual differences” as to each of the issues identified by the Rowe court (but he evaluated none of them). Q. Among the individuals residing within the areas at issue in this matter would you expect there to be considerable individual differences as to their amount and length of exposures to PFOA? A. Yes. Q. Would you expect there to be considerable individual differences as to what their PFOA blood serum levels would be? A. Yes. Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 26 of 51 18 Q. Would you expect there to be considerable individual differences as to what their susceptibilities, if any, to PFOA might be? A. Yes. Q. As to those individual differences and exposure of blood levels and susceptibilities, if any, would that be a function of a number of different variables? A. Yes. Q. And those individual differences would be a function of, among other things, their ages. Correct? A. Age would be a variable. Q. And those individual differences would be a function of, among other things, their gender. True? A. Yes. Q. Those individual differences would be a function of, among other things, their physiology. Correct? A. Yes. Q. Those individual differences would be a function of, among other things, how long they lived in the area. True? A. Yes. Q. Those individual differences would be a function of, among other things, their rates of daily water consumption. Correct? A. Yes. And not just that, for the time that they lived near the factory also, you know, their tidal volume for breathing, because that’s another route of exposure. Q. Those would all be different? A. Yes. Q. And the individual differences would also be a function of, among other things, the concentrations of PFOA in the water they drank. Correct? A. Yes. Q. And those individual differences would also be a function of, among other things, their sources of water. Correct? … A. Yes, that’s correct. Q. And the individual differences would be a function of, among other things, their diet and nutrition. Correct? A. There are differences between all of us from PFOA and PFOS contaminants based on diet and nutrition. … Q. The individual differences would be a function of, among other things, drug and alcohol use. Correct? … A. Okay. So if it’s susceptibility, then the answer becomes yes. … Q. And those individual differences would be a function of, among other things, their body weight and Body Mass Index or BMI. Correct? A. Yes. Q. And those individual differences would be a function of, among other things, their general state of health as well as other medical conditions. Correct? Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 27 of 51 19 A. Yes. Q. And those individual differences would be a function of, among other things, their occupational histories. Correct? A. If their occupation had exposure to perfluoroalkyl substances, that would be another and very important route of exposure. Q. In your opinion, what else, if anything, would those individual differences in either exposures, blood levels or susceptibility to PFOA, if any, be a functions of? A. Okay. I don’t remember all the things you mentioned, but let me go down a list of things that we often adjust for. So – and you may think you included these under general health, but renal function would certainly be one. … Then another one that you may have mentioned and I simply don’t remember is drugs. … There are so many things. I’m a little worried about not being complete. Do you want me to stop or do you want me to think of others? (Ducatman Tr. at 55:23-61:4 (emphasis added).) Plaintiffs’ counsel similarly admitted that “you’re going to find individual difference” as to “anything and everything” on these points. (Dkt. 104] at 32.) (See Guzelian Rpt. at 94-119.) Dr. Ducatman did not review any of that evidence. (Ducatman Tr. at 37:8-19, 39:11-40:2, 45:8-46:18, 195:6-13.) But Saint- Gobain’s expert, Dr. Guzelian, did, (Guzelian Rpt. at 21.) (Id.; see generally id. at 94-126.) Based on similar concerns, the Third Circuit in Gates rejected certification of a putative medical monitoring class action arising out of vinyl chloride pollution. The court held that “the inquiries into whether class members were exposed above background levels, whether class members face a significantly increased risk of developing a serious latent disease, and whether a medical monitoring regime is reasonably medically necessary all require considering individual proof of class members’ specific characteristics.” Gates, 655 F.3d at 270. Thus, common evidence Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 28 of 51 20 cannot “prove the medical necessity of plaintiffs’ proposed monitoring regime without further individual proceedings to consider class members’ individual characteristics and medical histories and to weigh the benefits and safety of a monitoring program.” Id. at 269; see also Barnes, 161 F.3d at 146. The court therefore affirmed the district court’s denial of certification because “individual issues predominate over any” common issues. Gates, 655 F.3d at 270. As the Eighth Circuit explained, the need for monitoring “is an individualized inquiry depending on that patient’s medical history, … the patient’s risk factors …, the patient’s general health, … and other factors.” St. Jude, 425 F.3d at 1122. Where the risk at issue “depends on the dosage,” “[a] court could not decide whether any class member’s [exposure] caused him or her to suffer a significant increase in the risk ... without considering these individual factors.” Fosamax, 248 F.R.D. at 400. Thus, each “individual’s claim [is] … necessarily proportional to his or her exposure to toxic emissions or waste.” Ball, 385 F.3d at 713. Because risk “would necessarily depend upon the varied circumstances of the class members’ exposure and other factors which may increase risk of disease,” it is “not at all a common issue.” Rink v. Cheminova, Inc., 203 F.R.D. 648, 661 (M.D. Fla. 2001), appeal denied as moot, 400 F.3d 1286, 1297 (11th Cir. 2005). Just one health condition would be difficult enough, but monitoring for the many health conditions listed by Plaintiffs (see Ducatman Class Rpt. at 7-10) “would be unmanageable in the framework of a class action.” Perez v. Metabolife Int’l, Inc., 218 F.R.D. 262, 272 (S.D. Fla. 2003). Thus, as in Rowe, “class certification would not alleviate the problem of extraordinary expense.” 2008 WL 5412912, at *21. 2. The Usefulness of Medical Monitoring Depends on Individual Needs The criteria for damages on a medical monitoring claim—that is, the existence of a useful monitoring program—are also individualized. (Dkt. 109 at 6.) Additional Testing: Whether Plaintiffs’ requests for monitoring are “above and beyond” the testing they “normally” receive is an individual question. (Dkt. 72 at 37-38.) “[A] medical monitoring claim requires each plaintiff to demonstrate that the medical monitoring regimen he had been or would have been prescribed … has changed due to the exposure,” “taking into account Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 29 of 51 21 individualized and personal factors such as genetics, medical history, etc.” Fiorentino v. Cabot Oil & Gas Corp., 2011 WL 5239068, at *7 (M.D. Pa. 2011). Class certification is properly denied where individual members of the putative class may need “to undergo exactly the same diagnostic screenings and tests” for reasons other than the alleged exposure. Perez, 218 F.R.D. at 272. “Giving all class members a right of access to the same uniform monitoring program would allow these high-risk individuals to obtain free medical tests that the medical community would normally recommend for them in the absence of exposure.” Id. (Guzelian Rpt. at 95.) (Id. at 95 & tbl. 8; Mandel Rpt. at 126 tbl. 11.) (Guzelian Rpt. at 31-34.) Thus, “the amount of monitoring a class member would require in the normal course of her treatment and illness, without the monitoring sought in this case, is an individualized inquiry into the medical needs and ongoing course of treatment for each class member.” Barraza v. C. R. Bard Inc., 322 F.R.D. 369, 382 (D. Ariz. 2017). (Guzelian Rpt. at 96.) Yet Dr. Ducatman did not consider these issues for the named Plaintiffs or absent class members. (Ducatman Tr. at 37:8-19, 39:11-40:2, 45:8-46:18, 195:6-13.) Need for Monitoring: “[T]he requirement that each class member demonstrate the need for medical monitoring precludes certification” because it requires each putative class member to prove “the monitoring program that would be prescribed for him” because of exposure. Barnes, 161 F.3d at 146; accord Gates, 655 F.3d at 269; Barraza, 322 F.R.D. at 382. “A patient who has been [exposed] may or may not require additional monitoring, and whether he or she does is an Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 30 of 51 22 individualized inquiry depending on that patient’s medical history, … the patient’s risk factors …, the patient’s general health, … and other factors.” St. Jude, 425 F.3d at 1122. “A class member’s need for additional monitoring hinges on the particular traits or characteristics of each class member.” Lockheed Martin Corp. v. Super. Court, 63 P.3d 913, 924-25 (Cal. 2003); accord Rowe, 2008 WL 5412912, at *17. Dr. Ducatman admits that every one of those factors is individualized. (Ducatman Tr. at 55:25-61:7.) Likewise, Dr. Ducatman’s declaration to this Court affirms that individual differences include “demographic differences, inherited differences, … potential additional sources of exposure, …. varying medical histories, [and] medical co-morbidities.” (Ducatman Decl., Dkt. 91-1, at 9-10.) Because each putative class member’s “unique medical history and the circumstances surrounding his or her” exposure can reveal individualized differences, the need for a “monitoring program” cannot “be proven on a class-wide basis.” Fosamax, 248 F.R.D. at 400; accord Lewallen v. Medtronic USA, Inc., 2002 WL 31300899, at *4 (N.D. Cal. 2002). Risk/Benefit: Further, since the proposed monitoring could “be contraindicated and potentially risky,” common evidence cannot “prove the medical necessity of plaintiffs’ proposed monitoring regime without further individual proceedings to consider class members’ individual characteristics and medical histories and to weigh the benefits and safety of a monitoring program.” Gates, 655 F.3d at 269. (Guzelian Rpt. at 10.) (Id. at 38; see also Ducatman Tr. at 138:18-147:23, 151:14-21.) Yet Dr. Ducatman neither considered these risks nor evaluated their application to the named Plaintiffs in forming his class certification opinion, which never mentions “false negatives” or “false positives.” (Ducatman Tr. at 156:9-16.) Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 31 of 51 23 3. Liability Raises Individual Issues of Alternate Exposure Plaintiffs’ motion relies on Saint-Gobain’s purported “same conduct or practice” in an attempt to show there are common questions. (Mot. at 17 (citation omitted).) Though some of Plaintiffs’ cases have described such questions as common and “not especially complex,” see Mejdrech v. Met-Coil Sys. Corp., 319 F.3d 910, 912 (7th Cir. 2003), that is not the case here under the governing law and record evidence. Rather, as the Tenth Circuit held in Boughton, issues of “liability may differ depending upon where individual plaintiffs reside.” 65 F.3d at 827. There, the Tenth Circuit affirmed the trial court’s finding that individual issues predominated in an environmental medical monitoring class action involving radioactive waste because “[p]laintiffs allege that their injuries derive from more than one source, and questions of injuries and liability may differ depending upon where individual plaintiffs reside.” Id. at 826. Likewise, in Ball, the Sixth Circuit held that certification was properly denied in a similar environmental medical monitoring action since, among other things, “[e]ach individual’s claim was … necessarily proportional to his or her exposure to toxic emissions or waste,” and “depended on their period of residency” within the class area. 385 F.3d at 728. Liability, including issues of alternative causation, cannot be established on a common basis because it is specific to, among other things, each putative class member’s location, period of residence, and personal activities. Plaintiffs have not proffered common proof that even purports to show the former Chemfab facility caused the presence of PFOA at each location within the proposed class area. While Plaintiffs’ experts Gary Yoder, Dr. Philip Hopke, and Dr. Donald Siegel purport to model air emissions and transport from the former Chemfab facilities, they all deny that they can determine on a common basis the presence or amount of PFOA in air or water at any property within the putative class area, much less its source. (Yoder Tr. at 159:1-9; Hopke Tr. at 137:25-139:2; Siegel Tr. at 33:7-18; see also Morrissey Rpt. at 4.) As Dr. Siegel states, agreeing with Saint-Gobain’s experts, the “timing of PFOA to initially pass through soil and reach the water table inherently will be variable across … Bennington and North Bennington.” (Siegel Merits Reb. Rpt. at 2-1.) Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 32 of 51 24 Plaintiffs claim “[t]here is no credible evidence of any other source” of PFOA in the proposed class area (Mot. at 16), to suggest that this case involves one undisputed source of exposure. Cf. Mejdrech, 319 F.3d at 912. The record is to the contrary. (DEC PFOA Modeling at 5; see Morrissey Rpt. at 28-32; Chinkin Rpt. at 7; Chinkin Reb. Rpt. at 18.) And in fact, Plaintiff Knight himself wrote a letter to this effect for his homeowners’ association and agreed the Landfill “could be” responsible for PFOA exposure. (Knight Tr. at 191:23-192:6.) In addition to the fact that there are alternate sources responsible for the presence of PFOA in the groundwater in Bennington, there are alternate individual factors for each putative class member that affect causation. In Barnes, the Third Circuit held that such potential sources of alternative causation defeated certification of a medical monitoring class even for well-established health risks of cigarette smoking, including lung cancer, cardiovascular disease, and chronic obstructive pulmonary disease. 161 F.3d at 146. Individualized defenses concerning causation of nicotine addiction precluded certification since “defendants would be permitted to cross-examine each individual about his specific choices, decisions and behavior, and … to offer expert testimony about each person’s specific circumstances.” Id. (quoting district court with approval). Still further, there are many potential alternative sources here for exposure to PFOA through channels other than groundwater in the putative class area. Initially, because there are putative PFOA class actions pending for the nearby areas of Hoosick Falls and Petersburgh, it is likely that those who currently live or work in one town may have previously lived in another, complicating their exposure history. Moreover, there is a high likelihood that individuals’ unique activities have given them alternative exposure to PFOA, which as Plaintiffs admit, is “widely found in, amongst other products, non-stick cookware, stain-resistant carpets and fabrics, water repellant clothing, and food packaging.” (TAC ¶ 17.) For instance, the Vermont Department of Health found that 14% of the individuals it surveyed in Bennington had occupational exposure to Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 33 of 51 25 PFOA.7 (Guzelian Rpt. at 149, 173; Mandel Rpt. at 4, 32.) Even Plaintiffs’ expert Dr. Ducatman admits that different individuals in the putative class area may have different levels of exposure based on biological factors or individual activities (including “very important” occupational exposures) over the class period (Ducatman Tr. at 55:25-61:7), which cannot be replaced “with evidence of hypothetical, composite persons in order to gain class certification.” Gates, 655 F.3d at 266. Because of this, federal and Vermont guidelines assume that nearly 80% of an individual’s exposure to PFOA comes from sources other than water.8 Thus, proof of causation would require “individualized determinations as to whether each class member had actually ingested” water containing PFOA from the former Chemfab facility, “with all the attendant difficulties noted above of making such factual determinations in the absence of written documentation.” Perez, 218 F.R.D. at 271. The “potential exposures, if any, are likely drastically different,” such that “[c]onducting such causative inquiries on a class-wide basis would be problematic and wildly inaccurate—individualized proceedings are necessary.” Lafferty v. Sherwin-Williams Co., 2018 WL 3993448, at *6 (D.N.J. 2018). This precludes certification. See id. 4. Threshold Proof of Exposure Is Individualized Even proof of exposure to PFOA—a threshold requirement of class membership, as well as an element of any purported claim for medical monitoring—is an individualized issue. Plaintiffs’ class definition requires showing, via blood tests, that one has PFOA above “recognized background levels” (TAC ¶ 77) (which Plaintiffs mistakenly define as above 2.1 µg/L (Ducatman Tr. at 95:20-97:21; Guzelian Rpt. at 19, App. B at 13)). Plaintiffs thus cannot prove exposure by common proof, which must “accurately reflect the exposure of individual members of the class.” Gates, 655 F.3d at 265. If it “would show only the amount that hypothetical residents would have 7 See Vermont Department of Health Report, available at https://bit.ly/2OVYrAH. 8 EPA Drinking Water Health Advisor for PFOA, available at https://bit.ly/2PHCOsY; Vermont Final PFOA Rule, Dec. 2016, available at https://bit.ly/2DQzEwN; Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 34 of 51 26 been exposed to under a uniform set of assumptions without accounting for differences in exposure … based upon an individual’s characteristics,” then it cannot be used “to gain class certification.” Id. at 266; see Dukes, 564 U.S. at 367; In re Fibreboard Corp., 893 F.2d 706, 712 (5th Cir. 1990). For example, unlike Plaintiff Knight, his wife, who is not a named Plaintiff, had no PFOA detected in her blood because she always drank bottled water while living in the same home. (Knight Tr. at 152:25-153:5.) Such information can only be learned through individual inquiry. Moreover, individual issues associated with “requiring all proposed class members to submit to blood tests and depositions … would eliminate any possibility that a class action would yield any of its intended efficiencies.” McGuire v. Int’l Paper Co., 1994 WL 261360, at *5 (S.D. Miss. 1994); accord Perez, 218 F.R.D. at 269. Not only are putative class members “impossible to identify prior to individualized fact-finding and litigation,” Crosby v. Soc. Sec. Admin. of U.S., 796 F.2d 576, 580 (1st Cir. 1986), but there is “significant concern for how adequate Rule 23(c)(2)(B) notice could be provided to each and every one of the individuals who … resided within the Affected Area” over 50 years. Modern Holdings, 2018 WL 1546355, at *16. The proposed exposure class “holds an uncertain number of persons, many of whom may be impossible to track, … with no knowledge of the alleged harm they may face.” Id. Thus, these “[i]ndividual issues of exposure, causation, and damages” present insuperable manageability problems and “preclude class certification.” Lafferty, 2018 WL 3993448, at *6. 5. The Class Is Subject to Individualized Affirmative Defenses In addition to the elements of the claim, the affirmative defense of the statute of limitations creates individualized issues for the proposed exposure class. Dukes, 564 U.S. at 367; see also Myers, 624 F.3d at 551. The three-year statute of limitations for personal injury claims runs from the date “a plaintiff discovers or reasonably should discover the injury, its cause, and the existence of a cause of action.” Eaton v. Prior, 192 Vt. 249, 254 (2012) (citation omitted); 12 V.S.A. § 512(4). That defense may apply to putative class members who lived near the Chemfab facilities when they were in operation. For example, Plaintiff Sumner lived less than 1,000 feet from the Water Street facility when it operated, had “serious concerns” about the facility and its effect on Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 35 of 51 27 his and his wife’s health, and, thus, filed a complaint with the EPA. (Sumner Tr. at 93:22-94:11, 95:2-18.) He “knew at the time that [he] had been affected” by the emissions and says he “saw physical … manifestations of those effects, … including nose bleeds and headaches.” (Id. at 101:13-24.) He believed there was a causal relationship between the emissions and his symptoms (id. at 96:24-97:9), and “knew that the potential was there” for the emissions to be carcinogenic. (Id. at 97:15-17, 99:14-17.) This testimony provides a basis for a statute of limitations defense not only as to Mr. Sumner, but also as to other absent members of the putative class, such as Mr. Sumner’s neighbors who had similar concerns. (Id. at 105:13-16.) That defense cannot be decided except by individual inquiry. C. Individual Issues Predominate for the Proposed Property Class All federal appellate authorities since Dukes have rejected certification of property damage class actions under Rule 23(b)(3). In Gates, the Third Circuit found a predominance of individual issues for the proposed property damage class, explaining that resolution of any common questions still left individual “questions relating to causation of contamination, extent of contamination, fact of damages, and amount of damages.” Gates, 655 F.3d at 271. “Given the potential difference in contamination on the properties, common issues do not predominate.” Id. at 272. The Seventh Circuit reached the same conclusion in Parko. It held predominance was not satisfied where “class members could well have experienced different levels of contamination, implying different damages, caused by different polluters.” 739 F.3d at 1085. These numerous critical individual issues meant that class certification would “not greatly simplify the litigation,” such that “the complications, the unwieldiness, the delay, and the danger that class treatment would expose the defendant or defendants to settlement-forcing risk are not costs worth incurring.” Id. And, in Ebert, the Eighth Circuit rejected class certification, holding that “[t]o successfully establish the alleged claims, there are individual issues that will predominate on the matters of liability and damages.” 823 F.3d at 479. “[T]here likely will be a property-by-property assessment of additional upgradient (or other) sources of contamination, whether unique conditions and features of the property create the potential for vapor intrusion, whether (and to what extent) the Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 36 of 51 28 groundwater beneath a property is contaminated, whether mitigation has occurred at the property, or whether each individual plaintiff acquired the property prior to or after the alleged diminution in value.” Id. Consistent with these precedents, the record here compels the same result. 1. “Actual or Threatened Contamination” Requires Individual Tests “[C]ommon proof will not show that any plaintiff’s property is, in fact, contaminated,” especially where, as here, “it appears from sampling data that not every parcel in the Proposed Class Area” had PFOA detected. Fisher v. Ciba Specialty Chems. Corp., 238 F.R.D. 273, 307 (S.D. Ala. 2006); accord Parko, 739 F.3d at 1086-87. For many properties in the putative class area—including those owned by named Plaintiffs—PFOA was not detected above 20 ppt. (L. Crawford Tr. at 92:24-95:11.) Moreover, Plaintiffs’ experts all deny that their analyses determine the presence of PFOA at any given property. See supra Section II.B.3. Plaintiffs cannot show by common proof which properties have PFOA in them, much less that all properties where PFOA has not been detected “are now in imminent danger,” which “will have to be proven on a property- by-property basis.” Fisher, 238 F.R.D. at 307; accord Gates, 655 F.3d at 271-72; Cotramano, 2018 WL 2047468, at *19. 2. Liability Requires Location-Specific Information for Alternate Cause Causation—a preliminary question for liability—is individualized due to property-specific issues concerning if, how, when, and from where PFOA reached the property. (Morrissey Rpt. at 4-5, 20-27; Chinkin Rpt. at 6-9; Knight Tr. at 190:24-192:16.) Because “groundwater does not move in a predictable fashion, and the plaintiffs themselves have submitted evidence in support of their motion showing that the levels of [PFOA] in the water of the two named plaintiffs are dramatically different,” there are individualized questions of when and how PFOA “traveled to each of the plaintiffs’ properties and whether there is another source.” Martin v. Shell Oil Co., 198 F.R.D. 580, 592 (D. Conn. 2000). Although “[c]ommon evidence may offer one potential source[,] … many other explanations may exist that are specific to a particular property,” Fisher, 238 F.R.D. at 307, making “a property-by-property inquiry … necessary.” Id. at 305 n.70. Even for chemicals like PFOA that “do not appear in nature,” “there are myriad explanations unrelated Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 37 of 51 29 to [the defendant] for why they might be found at a given location,” especially where the chemical was used “extensively” over a long period. Id. In addition, “individual proximate cause issues will permeate a diminution in value analysis because of the many diverse communities encompassed within the proposed class area.” Cotramano, 2018 WL 2047468, at *20. Because other parties may have been responsible for the presence of PFOA, putative “class members could well have experienced different levels of contamination, implying different damages, caused by different polluters,” requiring an individualized inquiry into causation. Parko, 739 F.3d at 1085. (Chinkin Rpt. at 9.) Further, liability is also individualized with respect to proof of “unreasonable harm” for Plaintiffs’ claims under the Groundwater Protection Act. Under the Act, “unreasonable harm” is determined by a nine-factor test. 10 V.S.A. § 1410(c), (e). Those factors include “the purpose of the respective uses or activities affected,” “the economic, social and environmental value of the respective uses, including protection of public health,” “the nature and extent of the harm caused, if any,” and “the practicality of avoiding the harm, if any,” among others. 10 V.S.A. § 1410(e). Plaintiffs have failed to proffer any evidence purporting to show unreasonable harm on a class- wide basis. (Unsworth Tr. at 68:8-17.) Even if they had attempted to do so, they would have been precluded by Vermont and federal standing doctrine, which requires a “particularized” injury that “affect[s] the plaintiff in a personal and individual way.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992); accord Parker v. Town of Milton, 169 Vt. 74, 78 (1998). As a result, each putative class member could prove a claim under the Act only by weighing of each of these nine factors on an individual basis. 3. Damages—and Injury—Depend on Each Individual’s Circumstances Plaintiffs seek two forms of damages for the putative class—diminution in property value under their tort theories and groundwater damages under Vermont’s Groundwater Protection Act. Fourth Initial Disclosures at 2; Unsworth Class Rpt. at 1.) The issue of damages presents Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 38 of 51 30 inherently individualized questions that preclude certification. Some courts have permitted certification to “carv[e] at the joints” of the parties’ dispute by conducting separate proceedings on damages. Mejdrech, 319 F.3d at 911. But those cases are inapplicable here because the court would have to consider individualized information not only for damages, but also for the inseparable threshold question of injury, which is required for standing. See infra Section V. Diminution in Value: Plaintiffs seek to recover for alleged diminution of value under their tort claims but do not proffer any expert testimony that purports to prove those damages on a common basis. In fact, their expert Robert Unsworth denies that Plaintiffs are “seeking class certification for purposes of establishing monetary damages associated with property value diminution.” (Unsworth Prop. Reb. Rpt. at 1-2.) Mr. Unsworth testified that he was “not proposing a methodology to get at individual home losses” and that “it would be difficult, given the ongoing dynamic situation there, to do a formal econometric hedonic model in the community.” (Unsworth Reb. Tr. at 199:13-200:13.) (Jackson Rpt. at 1.) (Id.) (id. at 5-6), (id. at 12), (Id. at 15-16); see also Parko, 739 F.3d at 1086; Ebert, 823 F.3d at 479; Gates, 655 F.3d at 271. This “militates strongly against certification under Rule 23(b)(3).” Fisher, 238 F.R.D. at 308. In lieu of a common method for proof of diminution in property value, the named Plaintiffs Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 39 of 51 31 have submitted declarations in support of class certification that assert, in identical language, that they have experienced such diminution. Plaintiffs also disclosed the amount of diminution in value that they contend corresponds to each Plaintiff, stating that each “will testify” to the matter. (Fourth Initial Disclosures at 2-3.) Putting aside that this lay opinion testimony is inadmissible under Rule 701, there can be “no dispute that computation of damages will inevitably be a property-specific enterprise.” Fisher, 238 F.R.D. at 308. The issue is individualized because “plaintiffs have made no pretense of presenting expert opinion or other evidence tending to show that damages can be computed according to some formula, statistical analysis, or other easy or essentially mechanical methods.” Id. (citations omitted). Plaintiffs do not “account for numerous individual characteristics of the homes and surrounding neighborhoods, which are not uniform throughout the proposed class,” and have not attempted to address them through “real-world market evidence, even for the class representatives.” Cotramano, 2018 WL 2047468, at *19. “Added Cost” Damages: Although Mr. Unsworth did not proffer a method to determine diminution in value for the class, he does purport to do so for groundwater damages. He describes “added cost” damages as the difference between the costs incurred for residents when they were on private well water and the allegedly increased costs when they are transitioned to municipal water. (Unsworth Merits Rpt. at 2.) Instead of applying this construct to the individual members of the putative class, Mr. Unsworth relies on purported “average” data, rather than the data specific to each of their claims, which he did not review. (Mullin Rpt. at 4; Unsworth Merits Rpt. at 11, 14, 18; Unsworth Tr. at 126:6-127:8.) Yet taking the “shortcut” of “abstract” “‘averages’” instead of “individual damages” is “a caution signal … that class-wide proof of damages [i]s impermissible.” Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331, 343 (4th Cir. 1998); accord In re Asacol, 907 F.3d at 54. The named Plaintiffs provided individual data on actual costs of well installation and maintenance, but Mr. Unsworth “did not look at the individual plaintiff data” (Unsworth Tr. at 172:17-23), which vary due to factors such as water usage, financing, and well construction. (Id. at 162:21-25, 163:13-164:2, 191:20-23.) Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 40 of 51 32 (Schmeltzer Email.) (Mullin Rpt. at 4, 12, 24-33.) “[A]n average of the values … would necessarily yield a windfall to some [individuals] at the expense of others” and, thus, warrants “denying class certification.” Corley v. Orangefield Indep. Sch. Dist., 152 F. App’x 350, 355 (5th Cir. 2005). While average values, if accurate, might determine the total damages of the class, using them to determine the claim of individuals within the class is “demonstrably wrong.” In re Asacol, 907 F.3d at 54. Mr. Unsworth attempts to avoid this problem by speculating that any undercompensated individuals “would opt out of the class” or that damages can be allocated in a separate proceeding. (Unsworth Tr. at 134:14-22; Unsworth Reb. Tr. at 74:8-75:1.) Yet by basing damages on “a uniform set of assumptions” as to “hypothetical residents,” he fails to describe the damages of the members of the putative class. Gates, 655 F.3d at 266. Likewise, trying to create a common question by “[r]oughly estimating the gross damages to the class as a whole,” McLaughlin, 522 F.3d at 231, rather than individual members, violates the Rules Enabling Act. 28 U.S.C. § 2072(b). Doing so would alter Saint-Gobain’s “substantive right to pay damages reflective of [its] actual liability,” if any, rather than a composite average, and is precluded. McLaughlin, 522 F.3d at 231. “Replacement Cost” Damages: Mr. Unsworth also purports to award “replacement cost” damages to make changes to water infrastructure of the Town of Bennington. (Unsworth Tr. at 218:21-219:11.) Yet he admits that the alleged damages do not relate to PFOA (id. at 247:24- 248:4), and the Town of Bennington (as a municipal entity and not a “natural person”) is not a class member. (TAC ¶ 77.) Mr. Unsworth thus proffers damages calculations based on the replacement of property in which the putative class members have no legal interest or standing. (See Unsworth Tr. at 220:11-22.) He acknowledged the mismatch between his replacement cost opinion and the putative class—it concerns “[t]he damages that the public has suffered … of which the members of the class” are a subset. (Unsworth Reb. Tr. at 173:9-19.) Thus, he seeks to furnish the Town of Bennington, a non-party, with improved water infrastructure. No class member is Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 41 of 51 33 individually entitled to such damages, and this award of relief to a third party and against Saint- Gobain is a patent violation of the Rules Enabling Act. McLaughlin, 522 F.3d at 231. D. A Class Action Is Not Superior for These Individualized, High-Value Claims Finally, Plaintiffs fail to show that a class action is a superior method of resolving the claims of either putative class. Rule 23(b)(3) specifies a variety of factors relevant to this determination, including “the extent and nature of any litigation concerning the controversy already begun by or against class member” and the “likely difficulties in managing a class action.” For the proposed exposure class, at the outset, the overlap with the putative class actions in Petersburgh and Hoosick Falls doom a finding of superiority under Rule 23(b)(3). See supra at 7. Just to begin the first step of identifying class members here would also require identifying whether they may also be members of the other two putative classes by virtue of having consumed water in Petersburgh or Hoosick Falls. For individuals who are members of multiple classes covering the same alleged need for medical monitoring from PFOA exposure, the Court would have to decide which proceeding would dispose of their claims and how to reconcile competing class notices and opt-out procedures. See Fed. R. Civ. P. 23(c)(2). Moreover, because the Burdick/Petersburgh class action against Taconic Plastics has been certified in New York state court,9 there is the possibility of a judgment or class action settlement in that case that may wholly or partially extinguish the claims of proposed class members here. Were that so, then even determining class membership in this case would require a threshold inquiry into claim preclusion to determine whether the claims arise “out of the same operative nucleus of fact” and therefore had been released. Adams v. S. Farm Bureau Life Ins. Co., 493 F.3d 1276, 1289 (11th Cir. 2007). Even if the Court could progress beyond these problems caused by overlapping class actions, the many individual issues outlined above preclude a finding of superiority for the 9 Plaintiffs have cited the certification order in Burdick in support of their motion (Dkt. 191-1), but that case was governed by New York state procedure, in which the requirements of Federal Rule 23, the Rules Enabling Act, Dukes, Amchem, McLaughlin, and others do not apply. In any event, Saint-Gobain notes that the defendant in Burdick has filed a notice of appeal. Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 42 of 51 34 proposed exposure class. “If each class member has to litigate numerous and substantial separate issues to establish his or her right to recover individually, a class action is not ‘superior.’” Zinser, 253 F.3d at 1192. Plaintiffs’ one-size-fits-all approach is not superior to the individualized monitoring relief putative class members may wish to seek—properly—based on any present alleged injuries they attribute to PFOA. As other courts have observed, “[c]lass members may wish to seek a monitoring program that is tailored, under the advice of their own physicians, to their individual preferences and unique medical histories.” Fosamax, 248 F.R.D. at 402. This is especially true where, as here, “[n]o medical association has recommended” the proposed program, such that “[t]here is an insufficient basis to believe that all class members would prefer the proposed monitoring program.” Id.; accord (Ducatman Tr. at 106:17-107:16, 111:2-114:5; Guzelian Rpt. at 38-39.) Likewise, the value of the claims precludes a finding of superiority. The Supreme Court has recognized that medical monitoring is a “costly remedy.” Metro-N. Commuter R.R. Co. v. Buckley, 521 U.S. 424, 442 (1997) (citation omitted). The diminution in value claims asserted on behalf of the proposed property class are for tens of thousands of dollars. (Fourth Initial Disclosures at 2.) “Where the amount of damages available to each plaintiff is high, each individual has a substantial interest in proceeding independently and thereby controlling the prosecution of his case.” Clark v. State Farm Mut. Auto. Ins. Co., 245 F.R.D. 478, 489 (D. Colo. 2007), aff’d, 590 F.3d 1134 (10th Cir. 2009). Because these claims “may well be sizable enough for individual (or joined) suits to be a feasible alternative to a class action,” a class action is not superior. Parko, 739 F.3d at 1086. III. DUKES BARS PLAINTIFFS’ ATTEMPT TO AVOID INDIVIDUAL ISSUES WITH MEDICAL MONITORING THROUGH INJUNCTIVE CLASS CERTIFICATION UNDER RULE 23(B)(2) A. Medical Monitoring Is Not Injunctive Relief, But Damages, and Thus Not Certifiable Under Rule 23(b)(2) Plaintiffs’ motion relies on pre-Dukes decisions approving Rule 23(b)(2) certification due to the purported “equitable” nature of medical monitoring. See, e.g., Arch v. Am. Tobacco Co., Inc., 175 F.R.D. 469 (E.D. Pa. 1997); Gibbs v. E.I. DuPont de Nemours & Co., 876 F. Supp. 475 Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 43 of 51 35 (W.D.N.Y 1995); Day v. NLO, 851 F. Supp. 869 (S.D. Ohio 1994); Yslava v. Hughes Aircraft Co., 845 F. Supp. 705 (D. Ariz. 1993). Yet, as Dukes observed, “[t]he Rule does not speak of ‘equitable’ remedies generally but of injunctions and declaratory judgments.” 564 U.S. at 365. As a result, class actions seeking monetary relief under Rule 23(b)(2) cannot be certified “at least where … the monetary relief is not incidental to the injunctive or declaratory relief.” Id. at 360; accord Barraza, 322 F.R.D. at 387. Rule 23(b)(2) is inapplicable to the proposed exposure class because Plaintiffs seek monetary relief, not an injunction. Plaintiffs explain that they “don’t envision the Court requiring Saint-Gobain to buy a bus and equipment and all that sort of thing and send it down to Bennington,” but instead seek a program to allow individuals to get tests at various facilities, with the results made “available to their primary care physician.” (8/28/17 Transcript at 41-42.) Plaintiffs have further submitted expert testimony that provides a present value for their proposed medical monitoring program to be paid by Saint-Gobain. (Brandt Rpt.; Shepard Rpt.; Gentle Rpt.) Thus, Saint-Gobain “would do nothing more than pay money” to “be used to pay for class members to see their own physicians” and receive tests. Barraza, 322 F.R.D. at 386; accord In re Rezulin Prods. Liab. Litig., 210 F.R.D. 61, 73-74 (S.D.N.Y. 2002). Where, as here, Plaintiffs seek “the establishment of a reserve fund for past and future damages, compensation for future medical treatment, plus other compensatory and punitive damages,” any injunctive relief, such as further research, is “merely incidental” to damages and Rule 23(b)(2) is inapplicable. Zinser, 253 F.3d at 1196; accord Boughton, 65 F.3d at 827; St. Jude, 425 F.3d at 1122; In re Propulsid Prods. Liab. Litig., 208 F.R.D. 133, 144-45 (E.D. La. 2002); Lewallen, 2002 WL 31300899, at *3. Nor can Plaintiffs skirt individual issues by proposing to establish a medical monitoring fund in which individual questions can be litigated after-the-fact in a claims process. The Second Circuit is emphatic that such proposals to “prove collective damages on a class-wide basis” and then allow individual putative class members to “claim shares of this fund” constitute “‘fluid recovery’ [that] has been forbidden in” this Circuit since 1973. McLaughlin, 522 F.3d at 231 (citation omitted). “Roughly estimating the gross damages to the class as a whole and only Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 44 of 51 36 subsequently allowing for the processing of individual claims would inevitably alter defendants’ substantive right to pay damages reflective of their actual liability.” Id. This would violate the Rules Enabling Act, 28 U.S.C. § 2072(b), by allowing Rule 23’s class action device to abridge a substantive right. See Amchem, 521 U.S. at 613; McLaughlin, 522 F.3d at 231. Such a “proposed claims process provides defendants no meaningful opportunity to contest” the elements of each class member’s claims, and cannot stand under Dukes. Asacol, 907 F.3d at 53. B. Rule 23(b)(2) Certification Is Barred Because Not All Putative Class Members Would Be Entitled to the Same Injunction The individualized nature of medical monitoring also precludes Rule 23(b)(2) certification because the proposed class does not seek injunctive relief for “the class as a whole,” Dukes, 564 U.S. at 360-61, which lacks sufficient “cohesiveness.” Barnes, 161 F.3d at 142; accord Barraza, 322 F.R.D. at 389. As Dukes explained, “claims for individualized relief … do not satisfy” Rule 23(b)(2), which “applies only when a single injunction or declaratory judgment would provide relief to each member of the class.” 564 U.S. at 360 (citations omitted). Rule 23(b)(2) requires “indivisible” injunctive relief as to conduct that “can be enjoined or declared unlawful only as to all of the class members or as to none of them”—not “when each individual class member would be entitled to a different injunction.” Id. (emphasis added). Applying these principles, the district court in Rhodes denied certification of a Rule 23(b)(2) medical monitoring class action alleging PFOA in groundwater from DuPont’s Washington Works facility in West Virginia because the class was not “cohesive.” 253 F.R.D. at 374. The court explained that cohesiveness is essential because “it would be unjust to bind absent class members to a negative decision where the class representatives’ claims present different individual issues than the claims of the absent members.” Id. at 371 (citation omitted). To meet that standard, the court explained that the plaintiffs would need to “offer evidence that commonly proves the elements of a medical monitoring claim for each proposed class member.” Id. at 374. For all the reasons set forth above, the Rhodes court held that common proof could not establish any of those elements: that “each potential class member has experienced significant exposure; Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 45 of 51 37 each has experienced a significantly increased risk of disease; and a reasonable doctor considering the exposure and increased risk of each individual would recommend medical monitoring different from what he would have prescribed absent the exposure.” Id. Rule 23(b)(2) certification was therefore denied. Likewise, the Third Circuit in Gates held that “[b]ecause causation and medical necessity often require individual proof,” Rule 23(b)(2) certification was barred under Dukes, since “[a] single injunction or declaratory judgment cannot provide relief to each member of the class proposed here.” Gates, 655 F.3d at 263-64 (citation omitted). Many other decisions are in accord. See St. Jude, 425 F.3d at 1121-22; In re Welding Fume Prods. Liab. Litig., 245 F.R.D. 279, 314- 15 (N.D. Ohio 2007); In re Prempro, 230 F.R.D. 555, 569 (E.D. Ark. 2005); In re Baycol Prods. Liab. Litig., 218 F.R.D. 197, 211-12 (D. Minn. 2003). Indeed, the vast “majority of courts has refused to certify medical monitoring class actions under Rule 23(b)(2).” 1 McLaughlin on Class Actions § 5:19. The same result is warranted here. IV. PLAINTIFFS CANNOT PROCEED THROUGH AN ISSUE CLASS UNDER RULE 23(C)(4) Plaintiffs cannot avoid the individualized issues in this case by seeking class certification under Rule 23(c)(4) as to a single issue. (See Mot. at 34.) Plaintiffs rely on the Second Circuit’s pre-Dukes adoption of the so-called “broad” view of issue classes, which holds that only the certified issues, and not the class as a whole, need satisfy the predominance and superiority requirements. In re Nassau Cty. Strip Search Cases, 461 F.3d 219, 227 (2d Cir. 2006). They fail, however, to identify any common issues for issue class treatment, much less to explain how certification of those issues would meet the Second Circuit’s requirement to “reduce the range of issues in dispute and promote judicial economy.” McLaughlin, 522 F.3d at 234 (quotation omitted). Indeed, because of the holding in Dukes that certification is warranted only where it will “generate common answers apt to drive the resolution of the litigation,” Dukes, 564 U.S. at 351 (citation omitted), “[i]ssue certification is generally only warranted when resolving the issue on a class-wide basis will meaningfully facilitate or simplify the resolution of the remaining issues.” Hostetler v. Johnson Controls, Inc., 2018 WL 3868848, at *12 (N.D. Ind. Aug. 15, 2018). Here, Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 46 of 51 38 as in McLaughlin, “the number of questions that would remain for individual adjudication” after an issue certification—that is, all the issues—would render class action treatment inefficient. 522 F.3d at 234; accord St. Jude, 522 F.3d at 841 (citations omitted). To the extent the Sixth Circuit held otherwise in Martin v. Behr Dayton Thermal Prod. LLC, 896 F.3d 405, 412 (6th Cir. 2018), as to which a petition for certiorari has been filed (18-472), it is contrary to McLaughlin and does not control this case. Apart from procedural problems, Plaintiffs’ proposed issue class procedure would violate the Seventh Amendment because it “amount[s] to a probability” that juries in individual proceedings would be called upon to re-examine facts tried to the class jury. Blyden v. Mancusi, 186 F.3d 252, 269 (2d Cir. 1999). Courts have thus prohibited issue classes in mass tort cases because the individual-stage determination of proximate cause “overlaps [with] the issue of the defendants’ negligence” that would be determined in class-stage proceedings. In re Rhone- Poulenc Rorer, Inc., 51 F.3d 1293, 1303 (7th Cir. 1995).10 Likewise, the individual-stage questions of damages “cannot be submitted to the jury independently” of liability-stage determinations of injury (a pre-requisite to standing) “without confusion and uncertainty.” Gasoline Prods. Co. v. Champlin Ref. Co., 283 U.S. 494, 500 (1931). In environmental cases such as this one, “liability and damages … cannot be separated from one another,” Rowe, 2009 WL 2424086, at *3, and thus the Court cannot “carv[e] at the joints” of the parties’ dispute through separate proceedings on damages. Mejdrech, 319 F.3d at 911; see also Parko, 739 F.3d at 1085. Following similar reasoning, the Eighth Circuit reversed issue certification on liability in an environmental tort action. Ebert, 823 F.3d at 479. While the plaintiffs there, as here, argued that liability was a common issue, the Eighth Circuit disagreed. “[T]here are determinations contained within that analysis that are not suitable for class-wide determination,” such that “any 10 See also, e.g., Hostetler, 2018 WL 3868848, at *7, 15; In re Conagra Peanut Butter Prods. Liab. Litig., 251 F.R.D. 689, 698-99 (N.D. Ga. 2008); In re NCAA Student-Athlete Concussion Injury Litig., 314 F.R.D. 580, 598-99 (N.D. Ill. 2016); In re MTBE Prods. Liab. Litig., 209 F.R.D. 323, 352 (S.D.N.Y. 2002); Arch v. Am. Tobacco Co., 175 F.R.D. 469, 493-94 (E.D. Pa. 1997). Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 47 of 51 39 limitations in the initial action are, at bottom, artificial or merely preliminary to matters that necessarily must be adjudicated to resolve the heart of the matter.” Id. at 479-80. Those determinations included, for example, whether contamination “threatens or exists on each individual property as a result of [the defendant’s] actions, and, if so, whether that contamination is wholly, or actually, attributable to [the defendant] in each instance.” Id. The same is true here. V. BOTH PROPOSED CLASS DEFINITIONS POSE INCURABLE PROBLEMS OF STANDING Under Second Circuit law, “no class may be certified that contains members lacking Article III standing.” Denney v. Deutsche Bank AG, 443 F.3d 253, 264 (2d Cir. 2006). Thus, a putative class must “be defined in such a way that anyone within it would have standing,” id., including that each putative class member have experienced an “injury in fact.” Lujan, 504 U.S. at 560. Here, both class definitions include members with no such injury, and class certification is therefore barred for lack of standing. Moreover, because “this is a case in which any class member may be uninjured, …. [t]he need to identify those individuals will predominate and render an adjudication unmanageable.” Asacol, 907 F.3d at 53-54. The proposed exposure class includes current and former residents of the proposed class area who have PFOA in their blood above background levels. (TAC ¶ 77.) Yet for the reasons previously briefed (see Dkt. 35-1 at 11-16), accumulation of PFOA alone is not an injury in fact, and cannot show standing. Almost all Americans have some PFOA accumulation in their blood. (Grandjean Tr. at 168:9-169:4.) Thus, there are background levels of PFOA in most people, but that does not mean that they have sustained an injury. As the Fourth Circuit explained, “[t]he presence of PFOA ... in the plaintiffs’ blood does not, standing alone, establish harm or injury.” Rhodes v. E.I. du Pont de Nemours & Co., 636 F.3d 88, 95 (4th Cir. 2011). Consistent with that principle, Vermont law limits negligence liability “to unanticipated physical injury” and “does not generally recognize a duty to exercise reasonable care … unless one’s conduct has inflicted some accompanying physical harm.” Walsh v. Cluba, 198 Vt. 453, 466 (2015) (citation omitted). The proposed exposure class definition describes “[t]he mere possibility of future harm,” which is not an injury, Dacey v. Design, 2003 WL 25652480 (Vt. Super. Ct. 2003), and thus does not confer Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 48 of 51 40 standing. Though the Court deferred ruling on this issue until summary judgment (Dkt. 74 at 14), it should decide it now because it determines whether members of the putative class have standing. The same goes for the proposed property class, which “include[s], but [is] not limited to, those persons” with property interests in the putative class area whose private wells tested above 20 ppt for PFOA. (TAC ¶ 77.) Thus, this definition includes those in the putative class area, like Plaintiff Garrison, who are on municipal water and have not had PFOA detected in the groundwater at their property. (Garrison Tr. at 143:19-144:6.) Such individuals lack standing since Vermont law holds this “stigma” theory of diminution in value is not a legal injury, but rather a “measure for damages” for an “‘actual and substantial’ threat of contamination,” Myrick v. Peck Elec. Co., 164 A.3d 658, 664 (Vt. 2017), which may not exist for each putative class member. And as even Mr. Unsworth acknowledges, under his groundwater damages model, some class members “may experience a financial cost savings” as a result of their switch to municipal water, in which case they have no legal injury sufficient to support standing. (Unsworth Reb. Tr. at 50:20-22.) Moreover, even putative class members who exceed Vermont’s 20 ppt threshold for PFOA have not, without more, experienced an injury in fact. As courts have explained in other PFOA cases, such regulatory standards are “of limited utility in a toxic tort case” because of their “distinct purpose.” Rhodes, 253 F.R.D. at 377. They provide “a level below which there is no appreciable risk to the general population,” but do not show “that any extra level above the ‘safe’ level are significantly harmful.” Id.; accord, e.g., Allen v. Pa. Eng’g Corp., 102 F.3d 194, 198 (5th Cir. 1996); Sutera v. Perrier Grp. of Am. Inc., 986 F. Supp. 655, 664 (D. Mass. 1997); O’Neal v. Dep’t of the Army, 852 F. Supp. 327, 333 (M.D. Pa. 1994). As the Rowe and Rhodes courts noted, these standards do “not identify the ‘danger’ point above which individuals are at a distinctive increased risk.” Rowe, 2008 WL 5412912, at *18; accord Rhodes, 253 F.R.D. at 378. Exceeding that level does not constitute injury and thus cannot define membership in the proposed property class. CONCLUSION For the foregoing reasons, Saint-Gobain respectfully submits the Court should deny Plaintiffs’ motion for class certification. Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 49 of 51 41 Dated: November 27, 2018 Respectfully submitted, /s/ R. Bradford Fawley R. Bradford Fawley DOWNS RACHLIN MARTIN PLLC 28 Vernon Street, Suite 501 Brattleboro, VT 05301-3668 Telephone: (802) 258-3070 Facsimile: (802) 258-4875 bfawley@drm.com Sheila L. Birnbaum (pro hac vice) Mark S. Cheffo (pro hac vice) Douglas Fleming (pro hac vice) Bert L. Wolff (pro hac vice) Lincoln Davis Wilson (pro hac vice) DECHERT LLP Three Bryant Park 1095 Sixth Avenue New York, NY 10036 Tel: (212) 698-3500 Fax: (212) 698-3599 sheila.birnbaum@dechert.com mark.cheffo@dechert.com douglas.fleming@dechert.com bert.wolff@dechert.com lincoln.wilson@dechert.com Attorneys for Saint-Gobain Performance Plastics Corp. Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 50 of 51 42 CERTIFICATE OF SERVICE I hereby certify that, on November 27, 2018, I served the foregoing SAINT-GOBAIN’S MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION on the following counsel by electronic case filing: Gary A. Davis James S. Whitlock DAVIS & WHITLOCK, P.C. 21 Battery Park Ave., Suite 206 Asheville, NC 28801 Telephone: (828) 622-0044 Facsimile: (828) 398-0435 jwhitlock@enviroattorney.com gadavis@enviroattorney.com Emily J. Joselson, Esq. James W. Swift, Esq. LANGROCK SPERRY & WOOL, L.L.P. P.O. Drawer 351 Middlebury, VT 05753 Telephone: (802) 388-6356 Facsimile: (802) 388-6149 ejoselson@langrock.com jswift@langrock.com David F. Silver, Esq. Timothy M. Andrews, Esq. BARR STERNBERG MOSS SILVER & MUNSON, P.C. 507 Main Street Bennington, VT 05201 Telephone: (802) 442-6341 Facsimile: (802) 442-1151 tandrews@barrsternberg.com dsilver@barrsternberg.com DATED: November 27, 2018 /s/ R. Bradford Fawley R. Bradford Fawley Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 51 of 51