Archive for the ‘Toxic Torts’ Category

Seeking Medical Monitoring After Environmental Contamination

Photo by cote. Some rights reserved.

A Legal Update from Mayer Brown covered the recent Third Circuit opinion in Gates v. Rohm & Haas Co.

The plaintiffs in the case, which started as a complaint filed against Rohm and Haas (a manufacturing company that is now a subsidiary of The Dow Chemical Company) in a Pennsylvania district court five years ago, sought certification for a class of residents of McCullom Lake Village who wanted the defendants to cover costs associated with medical monitoring “designed to determine whether any other former or current resident of McCullom Lake Village may have brain cancer.”

Why brain cancer? Well, according to the complaint, at least five individuals in McCullom Lake Village had developed malignant brain cancer within a short period of time, and others in the neighborhood had also developed brain cancer and rare brain tumors. The plaintiffs argued that exposure to vinyl chloride – a highly toxic chemical that was found in groundwater where Morton International (owned by Rohm and Haas at the time) was dumping liquid chemical waste – gives the proposed class members “a significantly heightened risk of developing malignant brain cancer and other illnesses.”

Despite what looked like a pretty convincing correlation/causation between the chemical waste dumping and the health of the residents of McCullom Lake Village, what the case came down to was Rule 23 of the Federal Rules of Civil Procedure. It was under this rule that the plaintiffs sought class certification, and it was this rule that undermined their case.

The district court denied the plaintiffs class certification under Rule 23.  When the case eventually came to the Third Circuit, the outcome was the same: “Given the inability to separate common issues from issues where individual characteristics may be determinative, […] the District Court did not abuse its discretion in denying the plaintiffs’ motion for class certification under Fed. R. Civ. P. 23(b)(2) and (b)(3). We [the Third Circuit] will affirm its judgment.”

For a more thorough review, and a point-by-point explanation of the courts’ reasoning, don’t forget to check out Mayer Brown’s Legal Update.

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