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Eighth Circuit Refuses To Certify Class In Case Alleging Neighborhood Claims For Damages Arising From Toxic Tort Vapor Intrusion

In Ebert v. General Mills823 F.3d 472 (8th Cir. 2016), the United States Court of Appeals for the Eighth Circuit held the United States District Court of Minnesota’s entry of an Order certifying a proposed class of plaintiffs in an environmental pollution case was an abuse of discretion because “the class lacks the requisite commonality and cohesiveness to satisfy Rule 23.” The case was remanded to the District Court with directions to revisit the issues in conformity with the Court’s holding.  

Plaintiffs, all owners of residential properties, filed suit against General Mills alleging General Mills caused the chemical substance trichloroethylene (TCE) to be released onto the ground and into the environment. Plaintiffs claim that as a result of this contamination, TCE vapors migrated into the surrounding residential area, threatening the health of the residents and diminishing the value of their property. 

Plaintiffs sought class certification on two issues: (1) whether General Mills was liable to home owners of the properties in the defined neighborhood and (2) whether injunctive relief warranted comprehensive remediation.  The United States District Court of Minnesota granted the class certification by bifurcating the Plaintiffs’ claims and reasoning that individual issues do not predominate over the common issues in the claims for which class certification was sought. 

However, a federal appeals panel for the Eighth Circuit reversed, finding that the class lacked the requisite commonality and cohesiveness to satisfy Rule 23.  The Court reasoned that determining General Mill’s liability will require examining whether vapor contamination, if any, threatens or exists on each individual property as a result of General Mills actions.  With this property-by-property analysis, “individual proof necessary to resolve the issues abounds” and the class action failed “for lack of cohesion.”  

The panel noted Judge Frank’s bifurcation of the action and certification of a class on liability that would be separate from the case’s money damages portion used “an available approach that is gaining ground.”  But in this case, that approach failed because the plaintiffs’ claims lacked the requisite cohesiveness, the panel said – – “In reality, the issue of liability and the relief sought by these homeowners is, at bottom, highly individualized.”