Bruce Smith v. ConocoPhillips Pipe Line Co.
801 F.3d 921
| 8th Cir. | 2015Background
- Phillips 66 owned a petroleum pipeline under West Alton, MO; a leak was discovered and repaired in 1963 but contaminated soil was not fully remediated.
- In 2002 benzene was found in a nearby residence (Ellebracht); Phillips purchased/demolished several properties, fenced the epicenter, removed contaminated soil, and installed monitoring wells; MDNR approved monitored natural attenuation.
- Plaintiffs (Wunderlichs and Smiths) sued in 2011 on behalf of a putative class of property owners within 0.25 miles (61 properties) seeking nuisance damages and injunctive relief; a separate medical-monitoring class was proposed but not certified below.
- Plaintiffs’ geologist opined historical plume migration and possible pockets of contamination; Phillips’ remediation manager testified monitoring shows high on-site contamination but monitoring wells outside the fenced site show concentrations below MDNR cleanup levels and recent drinking-water tests on nearby homes showed nondetect for BTEX.
- The district court certified the nuisance class, relying on evidence of shifting contamination, monitoring-well detections, and an isolated MTBE detection on a class member parcel; Phillips appealed certification and the denial of its motion to disqualify plaintiffs’ experts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 23 commonality and typicality are satisfied for a nuisance class based on fear of contamination rather than proof of on-class-property contamination | Class claims a common injury: diminution and interference from the nearby contaminated site and continuing risk; class need not show physical invasion to assert nuisance | Phillips: plaintiffs lack proof of actual contamination on class properties; fears of possible spread do not establish common, tangible injury required for nuisance recovery | Reversed: court held fear of possible contamination, without proof of physical invasion or common classwide contamination, is insufficient to satisfy Rule 23 commonality/typicality for nuisance claims |
| Whether Missouri nuisance law allows recovery absent a physical intrusion onto plaintiff's land | Plaintiffs: Missouri law does not always require physical invasion; older MO cases support non-physical interferences (e.g., offensive uses) | Phillips: contemporary authority and persuasive decisions require a physical or otherwise demonstrable invasion to recover for property-value diminution from environmental contamination | Held: Court adopts contemporary consensus—Missouri nuisance requires proof, not mere speculative fear; plaintiffs’ evidence did not show classwide physical invasion |
| Whether the district court properly relied on the isolated MTBE detection and monitoring-well data to certify a 0.25-mile class | Plaintiffs: MTBE detection and monitoring-well evidence show contamination reached class area and that pockets may exist, supporting class certification | Phillips: MTBE is not a contaminant from the Phillips leak; monitoring shows off-site wells below cleanup levels and drinking-water sampling nondetect for BTEX | Held: The isolated MTBE result and monitoring data were insufficient to demonstrate a common class injury; certification was an abuse of discretion |
| Whether expert testimony required a full Daubert gatekeeping hearing before class certification | Plaintiffs: their experts provided sufficient opinion to support preliminary class findings | Phillips: district court should have conducted a full Daubert inquiry before certification | Held: Court affirmed that a focused Daubert analysis (per In re Zurn Pex) suffices; did not revisit Zurn, but ruled class certification still improper on merits of commonality |
Key Cases Cited
- Prof. Firefighters Ass'n of Omaha, Local 385 v. Zalewski, 678 F.3d 640 (8th Cir. 2012) (district court has broad discretion on class certification)
- In re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d 604 (8th Cir. 2011) (focused Daubert analysis for class certification)
- Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (U.S. 2011) (rigorous Rule 23 analysis; commonality requirement)
- Adams v. Star Enter., 51 F.3d 417 (4th Cir. 1995) (environmental fear and diminished value insufficient without physical detection/invasion)
- Frank v. Envtl. Sanitation Mgmt., Inc., 687 S.W.2d 876 (Mo. 1985) (Missouri nuisance focuses on unreasonable interference with use and enjoyment of land)
- Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (U.S. 1993) (gatekeeping standard for admissibility of expert testimony)