March 21, 2019

The plaintiffs bar is applauding the U.S. Supreme Court's choice this week to leave intact a Sixth Circuit decision that endorses a little-used path to class certification, a ruling experts say is likely to result in more successful class actions, especially toxic torts, across the country.

The justices passed up a chance to review the Sixth Circuit's broad interpretation of class action requirements in the Federal Rules of Civil Procedure, which allowed a group of Dayton, Ohio, residents suing four companies over groundwater pollution to move their lawsuit forward in an unconventional way.

U.S. District Judge Walter Rice in 2017 found the class claims didn’t predominate over questions affecting the individual members of the proposed class and denied certification under Rule 23(b)(3). But he allowed seven claims to move forward on a class basis under Rule 23(c)(4), which allows class treatment of some issues but keeps individual damages claims separate — a procedure known as issue-class certification. The Sixth Circuit upheld his decision in July.

Issue-class certifications have been an underutilized component of plaintiffs attorneys’ tool kits because some circuits have issued slightly different rulings on their use, making it an unpredictable tactic to pursue at the district court level. But that's likely to change with this development, according to Douglas J. McNamara, a partner at Cohen Milstein Sellers & Toll PLLC and a member of the firm’s consumer protection practice group.

“Issue-class certification makes sense sometimes, especially when you're going to have wide differences in causation and injuries and there are substantial damages,” McNamara said. “And the ideal cases for (c)(4) for have been toxic torts.”

That's because if a court can determine on a class basis whether a defendant dumped a particular pollutant, and whether that pollutant can cause the alleged harm, it saves a lot of time and energy, McNamara said. And he noted that it makes sense to calculate damages individually since there are so many potential differences in plaintiffs' exposure levels, prior medical histories and other issues.

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