This case arises from waste allegedly deposited by the defendant Olin Corporation (“Olin”) in public landfills maintained by the Town of Hamden. The plaintiffs, because of the discovery of contamination in the New-hall neighborhood of Hamden, seek damages against Olin for the diminution in value of their properties, the loss of use and enjoyment of their properties, and emotional distress, as well as coverage by Olin of any response costs incurred to address contamination on the affected properties. The plaintiffs ask the Court to certify a class under Fed.R.Civ.P. 23(b), and several subclasses of property owners from the Newhall neighborhood.
I. Background
The defendant Olin Corporation is a Virginia corporation with headquarters in Missouri. Olin purchased Winchester Repeating Arms Company, a firearms and munitions manufacturer located in New Haven, in 1931.
In 2000 and 2001, the United States Environmental Protection Agency (“USEPA”) conducted studies that confirmed that chemicals and wastes from historical firearms and munitions manufacturing had been disposed in the residential areas in the Newhall neighborhood. The USEPA subsequently conducted surficial soil sampling on many properties in the Newhall neighborhood and analyzed the samples for industrial byproducts and contaminants such as lead, arsenic, semi-volatile organic compounds, and polycyclic aromatic hyrdocarbons. Many properties were contaminated, and some had lead concentrations exceeding the “action level” for lead concentration in human blood. In December 2002, consultants for Olin reported that analyses of fill in the Newhall section consistently indicated the presence of elevated concentrations of hazardous substances. Such elevated concentrations may lead to various physical and cognitive ailments including nervous system dysfunction, renal problems, and cancer.
The plaintiffs’ complaint states claims against Olin for negligence, gross negligence, negligence per se, abnormally dangerous activity, infliction of emotional distress, public and private nuisance, for recovery of response costs under Conn. Gen.Stat. 22a-452, and for recovery of response costs under the Contaminated Environmental Response, Compensation, and Liability Act (“CERC-LA”).
The plaintiffs’ proposed class consists of all persons who own property in the New-hall neighborhood who have suffered injury as a result of Olin’s alleged disposal of contaminated fill in that neighborhood. The proposed subclasses include: (1) the Contaminated Properties Subclass, which would include all of the members of the class onto which Olin disposed contaminate fill after it purchased Winchester in 1931; (2) the Stigma Subclass, which would include all members of the class who own real property in the Newhall neighborhood onto which Olin did not dispose of industrial waste, but who have suffered injury as a result of the proximity to the Contaminated Properties Subclass; and (3) the Response Cost Subclass, which would include members of the class who own property in the Newhall neighborhood who have or will incur response costs in order to redress residual contamination.
II. Standard of Review
To certify a class, the district court must determine through “rigorous analysis,” Gen. Tel. Co. v. Falcon,
In addition, when a plaintiff seeks certification under Rule 23(b)(3), the Court must find that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Fed. R. Civ. P 23(b)(3). In determining whether the plaintiffs have shown predominance and superiority, the court should consider (A) the interest of the class members in individually controlling the prosecution or defense of separate actions, (B) the extent of any litigation concerning the controversy already commenced by or against class members, and (C) the difficulties likely to be encountered in the management of a class action. See Fed. R. Civ. P 23(b)(3).
The court may determine an issue on the merits if it is necessary to decide whether the Rule 23 requirements have been met, but the inquiry should not extend to such an extent that the class certification proceedings turn “into a protracted mini-trial of substantial portions of the underlying litigation.” In re Initial Public Offering Securities Litig.,
III. Discussion
Olin argues that the predominance requirement cannot be met because individual issues predominate with respect to the plaintiffs’ claims for infliction of emotional distress, nuisance, negligence, and damages. Olin also argues that a class action is not the superior method of adjudicating this controversy. Although Olin concedes that the plaintiffs’ proposed class meets the 23(a) requirements, the Court will address each of them, and then turn to the disputed issues of predominance and superiority.
A. Numerosity
The standard for numerosity under Rule 23(a)(1) is whether the class is so numerous that joinder of all members is impracticable. While there is no predetermined number of plaintiffs necessary to certify a class, courts generally have found a class consisting of 40 or more members to be sufficient. See Martin v. Shell Oil Co.,
Many courts have certified classes defined by geography, as the class here is defined by the contours of the Newhall neighborhood. See, e.g., Cook v. Rockwell Int’l Corp.,
B. Commonality
Under Rule 23(a)(2), a class action is maintainable if there are common questions of law or fact. Robinson v. Metro-North Commuter R.R. Co.,
C. Typicality
The typicality requirement of Rule 23(a)(3) mandates that “the claims of the class representatives be typical of those of the class, and is satisfied when each class member’s claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant’s liability.” Robinson v. Metro-N. Commuter R.R. Co.,
Adequacy of representation means that the class representatives “will fairly and adequately protect the interests of the class.” Denney v. Deutsche Bank AG,
E. Predominance of Common Issues
To qualify for class treatment, the proposed class must meet the requirement of predominance, meaning that “the questions of law or fact common to the members of the class predominate over any questions affecting only individual members.” Fed. R.3 Civ. P. 23(b)(3). The predominance requirement, which is highly disputed here, together with the requirement of “superiority,” ensures that the class will be certified only when it would “achieve economies of time, effort, and expense, and promote ... uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.” Amchem,
Generally, certification is granted in a tort case where there is a “demonstrated cohesiveness of the class due to shared experience that is confined in time and place and produces similar effects.” Presbyterian Church of Sudan v. Talisman Energy Inc.,
However, the Supreme Court has made clear that certain mass tort cases are appropriate for class certification, stating “mass tort cases arising from a common cause or disaster may, depending on the circumstances, satisfy the predominance requirement.” Amchem,
Olin argues that individual issues predominate over common issues of fact and law because issues of causation, damages, and application of the defense of statute of limitations likely require individualized proof. The plaintiffs assert that despite the possibility that individualized proof will be necessary for certain aspects of their claims, the common issues regarding Olin’s course of conduct and its legal effect on the plaintiffs still predominate over any individual issues. The common issues cited include those pertaining to the elements of the claims of negligence and gross negligence, strict liability for engaging in an abnormally dangerous activity, infliction of emotional distress, public and private nuisance, claims under Conn. Gen.Stat. § 22a — 452, and claims under CERCLA (42 U.S.C. § 9607).
Regarding the intentional infliction of emotional distress claim, Olin argues that an inquiry into each plaintiffs mental health and other potential causes of emotional distress will need to be conducted in order to determine if Olin’s actions are indeed the proximate cause. However, the plaintiffs point out that this inquiry can easily be done in conjunction with the inquiry into the actual damages sustained by each plaintiff. Furthermore, the remaining elements of an intentional infliction of emotional distress claim, such as the intent of Olin and whether Olin knew its conduct was likely to cause distress, and whether Olin’s conduct was extreme and outrageous, can be made on a class-wide basis.
With regard to the nuisance claim, the defendants argue that individual issues predominate with respect to the unreasonable interference requirement. However, like the claims described above, the other elements of the nuisance claims are class-wide issues, and
The defendant further argues that individual issues predominate with regard to the statute of limitations, because the dates on which particular plaintiffs became aware of the contamination vary. However, Olin itself has argued that all of the plaintiffs’ claims should be dismissed because they are time-barred, which implies that this is actually a common issue.
Finally, the defendant argues that individual issues of damages among class members outweigh the predominance of common issues. However, courts have repeatedly stated that differences in the amount and recoverability of damages do not defeat predominance. See Sterling,
F. Superiority
Finally, the plaintiffs must show that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Fed.R.Civ.P. 23(b)(3). A class action is superior where “class-wide litigation of common issues will
The case will be manageable as a class action because all of the class members reside in one neighborhood within Connecticut, and the entire alleged course of action by the defendant took place in Connecticut as well. “It is not a case in which, because class members are scattered around the country and proceeding under the laws of different states, determination of class-wide issues would require the judge to create a composite legal standard that is the positive law of no jurisdiction ... All the class members are residents of the same state and are proceeding under the same federal and state laws.” Mejdrech v. Met-Coil Systems Corp.,
IV. Conclusion
For the reasons given above, the Court finds that the plaintiffs have met all of the requirements for class certification under Federal Rule 23(a) and (b). The plaintiffs’ third amended motion for class certification [Dkt. # 204] is granted in its entirety, including the Class and three Subclasses identified in the motion.
Notes
. The following allegations are taken from the plaintiffs’ Second Amended Complaint, and will be referred to herein as "complaint.”
. This Court granted Olin’s motion for summary judgment as to the actions of Winchester Repeating Arms Company. Therefore, Olin is currently liable only for events that took place after 1931. See Collins v. Olin Corp.,
. On January 10, 2007, this Court dismissed the plaintiffs’ claim under Connecticut’s Environmental Protection Act (Conn.Gen.Stat.22a-15, 16, 17), without prejudice.
The Town of Hamden was originally a defendant in this action. However, all counts against it have been dismissed except for one claim under CERCLA for response costs. See Collins v. Olin Corp.,
. The claims made by each subclass differ. The claims for negligence and gross negligence, public and private nuisance, abnormally dangerous activity, and intentional infliction of emotional distress are made by the Contaminated Properties Subclass and Stigma Subclass, but not the Response Cost Subclass. Conversely, the claims under CERCLA and the Connecticut statutes are made by the Response Cost Subclass, but not the Contaminated Properties Subclass and the Stigma Subclass.
. Two of the originally named plaintiffs, William Jones and Clifford Senior, were not deposed, but both have agreed to dismiss their claims and no longer seek to represent the class or subclasses.
. The common issues identified by the plaintiffs as to negligence are: (1) Whether Olin disposed of its industrial waste containing lead, arsenic, and polyaromatic hydrocarbons in the Newhall neighborhood, and in particular on the Properties of the Contaminated Properties Subclass; (2) whether Olin knew that the areas where this waste was dumped were expected to be developed with residences; (3) whether and to what extent Olin knew the materials it disposed of were hazardous; (4) whether Olin's actions in disposing of those hazardous materials in soil expected to be developed with residences constituted a breach of the standard of care; (5) whether Olin's actions in disposing of the hazardous materials in such areas constituted wanton, willful or reckless conduct; (6) whether Olin’s actions in disposing of the hazardous materials in such areas constituted negligence per se; and (7) whether Olin had a duty to warn residents of the hazards of its wastes.
The common issues identified by the plaintiffs as to abnormally dangerous activity are: (1) whether Olin engaged in ultrahazardous and abnormally dangerous activities when it handled, disposed of and released hazardous substances including lead and arsenic; (2) whether Olin knew of should have known that there was a high degree of risk associated with handling and disposing of such hazardous substances; (3) whether at the time Olin knew or should have known the hazardous substances were harmful to humans and the environment; and (4) whether at the time it was disposing of the substances, Olin knew or should have known that the hazardous substances would cause harm to future landowners.
The common issues identified by the plaintiffs as to infliction of emotional distress are: (1) whether Olin's actions in disposing of its industrial waste in the Newhall neighborhood were extreme and outrageous in character; and (2) whether Olin knew or was reckless in not knowing that its actions and omissions would inflict emotional distress on that neighborhood.
For public nuisance, the common issue identified is whether Olin unreasonably interfered with public health, safety, peace, comfort, or the convenience of the public by its handling and disposal of hazardous industrial waste, thereby causing a public nuisance. For private nuisance, the common issue identified is whether Olin, by its handling, disposal of, and release of hazardous substances, emanating from its own nearby property, in the Newhall neighborhood, unreasonably interfered with the use and enjoyment of private properties in that neighborhood.
As for the claim under Conn. Gen.Stat. § 22a-452, the common issues identified by the plaintiffs are: (1) whether Olin was the owner or operator of a site from which there has been a disposal and release of materials defined as hazardous waste under Conn. Gen.Stat. § 22all5(l), or is otherwise legally responsible for the releases from that site; (2) whether Olin, directly or indirectly, arranged for the transport and disposal of hazardous wastes from its nearby site to the Newhall neighborhood; and (3) whether Olin will remove all hazardous wastes that it deposited in the Newhall neighborhood, or whether instead the residents of that neighborhood will have to incur costs for the containment, removal, and/or mitigation of such hazardous waste.
As to the CERCLA claim under 42 U.S.C. § 9607, the common issues identified are: (1) whether Olin disposed of or arranged for disposal of substances defined as hazardous substances under 42 U.S.C. § 9601(14) and 40 CFR Part 302.4 in the Newhall neighborhood; (2) whether Olin's hazardous substances have contaminated the soil and ground water in the Newhall neighborhood at levels exceeding maximum allowable contaminant levels; and (3) whether Olin will
. In addition, with respect to the Stigma Subclass, the cause of the contamination need not be proved, because the basis of their claims is not contamination on their specific properties but contamination in the neighborhood as a whole.
. Olin argues that the testimony of its experts and admissions made by plaintiffs’ expert shows that causation cannot be established to a reasonable degree of scientific certainty. Regardless whether the expert testimony establishes that causation actually cannot be proved on a class-wide basis, the Court need not weigh this evidence at this stage, since common issues pertaining to Olin's course of conduct predominate over any individual issues here. Moreover, Plaintiffs dispute Olin's argument concerning their expert.
. In addition, because the industrial waste was allegedly disposed of directly on the properties in the contaminated properties' subclass, there will not be any questions of how groundwater moved, which was a concern in some cases cited by Olin in which causation was found to be an individual issue. See, e.g. Martin,
. Olin cites the Second Circuit’s decision in Initial Public Offering, which vacated and remanded a decision to certify a class in the securities litigation context, as support for their statute of limitations argument. However, the statute of limitations defense was not at issue in that case, only the knowledge of the plaintiffs as it related to an element of their own claim.
. As the defendant points out, in Visa Check the Second Circuit also stated “the question for purposes of determining predominance is not whether a defense exists, but whether the common issues will predominate over the individual issues raised by that defense.”