986 F.3d 570
5th Cir.2021Background
- Arkema operated a chemical facility in Crosby, TX that stores refrigerated organic peroxides (Luperox) requiring cooling.
- During Hurricane Harvey (Aug. 2017) flooding disabled cooling systems; refrigerated trailers combusted and wastewater tanks overflowed, producing smoke, ash, and five emissions events; residents reported rashes, respiratory and other symptoms.
- Local property owners filed a putative class action (claims under RCRA, CERCLA, negligence, trespass, public nuisance) seeking damages and injunctive relief for property remediation and medical monitoring for all owners within a seven-mile radius.
- The district court certified both a Rule 23(b)(3) damages class and a Rule 23(b)(2) injunctive-relief class, excluding Plaintiffs’ damages expert but crediting other experts; Arkema appealed.
- The Fifth Circuit held that Daubert applies at the class-certification stage and vacated the certification order, finding the district court’s predominance and cohesiveness analyses insufficient and remanding for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of Daubert at class-certification | Daubert need not be applied with full force at certification | Daubert gatekeeping must apply because expert proof is central to showing Rule 23 requirements | Court: Daubert applies at certification when scientific evidence is material; district must assess admissibility/reliability before certifying |
| Predominance for Rule 23(b)(3) damages class | Common questions about Arkema’s conduct and exposure predominate; liability can be tried classwide and damages bifurcated | Causation, exposure, injury and damages are highly individualized and will overwhelm common issues | Court: District failed to rigorously analyze how liability and individualized causation/injury issues would be tried; predominance inquiry was inadequate — vacated and remanded |
| Cohesiveness for Rule 23(b)(2) injunctive class (medical monitoring and remediation) | Arkema’s general conduct supports classwide injunctions; remediation and monitoring can be applied across class | Requested injunctive relief is not specific enough; individual medical needs and variable contamination levels preclude a single classwide remedy | Court: Classwide injunctive relief not clearly specified; district did not make required findings about practicable, specific injunctive measures — remand for focused analysis |
| Use of experts and trial administration at certification | District relied on Plaintiffs’ experts to find commonality and manageability | Reliance on experts without full Daubert gatekeeping and without explaining trial procedures risks certifying an unmanageable class | Court: District must evaluate expert admissibility under Daubert and explain how trial would be run (e.g., evidence, bellwether trials, bifurcation); cannot defer these analyses |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) (trial-court gatekeeping standard for expert admissibility applies to scientific evidence)
- Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) (Rule 23 requires a rigorous analysis of commonality and proof at certification)
- Comcast Corp. v. Behrend, 569 U.S. 27 (2013) (plaintiffs must provide evidentiary proof that Rule 23(b)(3) predominance is met)
- In re Blood Reagents Antitrust Litig., 783 F.3d 183 (3d Cir. 2015) (Daubert should be applied at class-certification when expert proof is necessary to show Rule 23 requirements)
- Madison v. Chalmette, 637 F.3d 551 (5th Cir. 2011) (vacated certification where district failed to consider how individualized exposure/causation issues would be tried)
- Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) (predominance tests class cohesion and requires careful scrutiny of common vs. individual issues)
- Unger v. Amedisys Inc., 401 F.3d 316 (5th Cir. 2005) (class certification must be based on admissible evidence)
- Yates v. Collier, 868 F.3d 354 (5th Cir. 2017) (Rule 23(b)(2) requires class members be harmed in essentially the same way and injunctions be specific)