MEMORANDUM
This case involves the alleged contamination of water and air by pollutants generated and released by Rohm and Haas Company, Rohm and Haas Chemicals, LLC, and Morton International, Inc. (collectively, “Rohm and Haas”).
I. FACTUAL ALLEGATIONS
The parties are familiar with the factual background of this case, so the Court sets forth only those facts necessary for resolving the class certification issue. Plaintiffs allege that vinyl chloride released from Rohm and Haas’s specialty chemicals manufacturing facility in Ringwood, Illinois (the “Ringwood facility”) contaminated the groundwater in and around McCullom Lake Village (the ‘Village”), as well as the air in the Village. Specifically, Plaintiffs claim that the levels of
The parties have stipulated to the following facts for purposes of class certification:
Since at least 1959, vinylidene chloride (1, 1-DCE) has been used in manufacturing operations at the Ringwood facility, a facility owned and operated by Rohm and Haas and/or Morton since June 1999. Joint Stipulated Facts for Class Certification Hearing (“Stipulation”) at ¶¶ 1.9-1.11, 3.1. From 1960 until 1978, the Ringwood facility had an on-site lagoon/landfill, which was used for the disposal of waste water containing vinylidene chloride. Id. at ¶ 3.2. Under certain conditions, vinylidene chloride degrades to vinyl chloride, which is a Group 1A carcinogen. Id. at ¶¶ 3.3-3.4.
In 1973, tests of the shallow aquifer under the Ringwood facility showed elevated levels of ammonia and chloride downgradient of the lagoon/landfill. Id. at ¶ 3.6. These elevated levels indicated that chemicals were leaching from the lagoon/landfill. Id. at ¶ 3.7. Five years later, in 1978, the lagoon/landfill was closed and covered. Id. at ¶ 3.8. In 1984, Morton conducted an environmental assessment at the Ringwood facility and installed 19 groundwater monitoring wells from which it collected and analyzed water samples. Id. at ¶3.9. These samples revealed the presence of vinylidene chloride and vinyl chloride in the groundwater beneath the facility. Id. at ¶ 3.10. Between 1984 and 1991, Morton installed 9 additional monitoring and recovery wells. Id. at ¶ 3.12. The Ringwood facility has been enrolled in the Illinois Environmental Protection Agency voluntary site remediation program since 1991. Id. at ¶ 3.13. As part of current remediation efforts, Rohm and Haas has drilled at least 14 monitoring wells. Id. at ¶ 3.21.
The parties agree that there is a deep, bedrock aquifer under the Ringwood facility, but disagree as to the direction of groundwater flow in that aquifer. Id. at ¶¶ 5.2.2, 5.2.3. The Plaintiffs allege that the deeper aquifer is the source of a plume of contamination (the “deeper plume” or “purple plume”) that flowed through an underground channel into the eastern part of the Village, causing contamination of Village wells.
The Village is located approximately a mile and a quarter from the Ringwood Facility. Id. at Ex. A. Residents in the Village depend on private wells for drinking water. Id. at ¶2.5. The depths of these private wells vary. Id. at ¶2.6. Prior to 2003, Village residents depended exclusively on septic systems for waste disposal, but in that year a public sewer system became available. Id. at ¶ 2.7. Currently, the Village continues the process of connecting homes to the public sewer system. Id. At least 38 residential wells within the Village have been tested at various times between April 2006 and January 2007. Id. at ¶¶4.1-4.7. None of those well tests have detected vinylidene chloride
The parties do agree that there is a shallow aquifer on Rohm and Haas’s property with a plume of contamination (the “shallow plume” or “orange plume”
Plaintiffs allege that between 1968 and 2002, the vinyl chloride evaporating from the shallow plume blew over the Village, contaminating the air in the Village and causing some Village residents to breathe varying amounts of it. The parties disagree as to the extent to which vinyl chloride volatilize into the air above the shallow plume and was blown across the Village. Id. at ¶¶ 5.1.2, 5.1.3. In support of their theory, the Plaintiffs have submitted an affidavit and report by Paolo Zannetti, QEP. Id. at ¶ 5.1.4. In his report, Dr. Zannetti opines on the average levels of airborne vinyl chloride that reached the Village at certain points in time. Id. at ¶ 5.1.5. In response, Rohm and Haas has submitted the report of Peter J. Drivas, Ph.D., who disputes the opinions offered by Dr. Zannetti. Id. at ¶¶ 5.1.6-5.1.7.
Although Plaintiffs have alleged that the Village’s water and air have been contaminated, as noted above, Plaintiffs seek class certification only on the “outdoor air” theory or “orange plume” theory. See 06/12/2008 Hr’g Tr. at 29-30.
The parties dispute whether, and the extent to which, exposure to vinyl chloride is associated with brain cancer in humans. Id. at ¶ 6.1. The Plaintiffs allege that exposure to vinyl chloride placed Village residents at a higher-than-normal risk of contracting brain cancer. In support of this theory, the Plaintiffs have submitted the affidavit and report of Gary Ginsberg, Ph.D. Id. at ¶ 6.2. In response, Rohm and Haas has submitted the reports of Darell D. Bigner, M.D., Ph.D. and Peter A. Valberg, Ph.D. Id. at ¶ 6.3. The parties’ experts disagree about the risk of brain cancer, if any, posed by exposure to vinyl chloride. Id. at ¶ 6.4.
The parties also disagree as to the significance of the number of primary brain cancers among past and present Village residents. Id. at ¶ 7.3. Citing the affidavit/report of Richard Neugebauer, Ph.D., M.P.H., the Plaintiffs contend that these cases of brain cancer are evidence of the risk caused by exposure to vinyl chloride. See id. at ¶ 7.1. In response, Rohm and Haas has submitted the reports of Patricia A. Buffler, M.P.H., Ph.D. and Gary M. Marsh, Ph.D., F.A.C.E. Id. at ¶ 7.2.
In addition, the Plaintiffs have submitted the report of Sydney Finkelstein, M.D., who opines that his analysis of brain tissue samples from Village residents who have been diagnosed with brain cancer indicates that the cancerous condition was caused by exposure to “genotoxie chemicals.” Id. at ¶¶ 8.1-8.2. In response, Rohm and Haas has submitted the report of David N. Louis, M.D. Id. at ¶ 8.3.
Finally, the parties dispute whether serial MRI screening is appropriate for a population allegedly exposed to vinyl chloride. Id. at V 9.1. In support of a medical monitoring program, the Plaintiffs have submitted the report of Melissa Neiman, M.D., who opines that a class-wide medical monitoring regime is medically reasonable given the alleged exposure to vinyl chloride. Id. at ¶¶ 9.2-9.3. In response, Rohm and Haas has submitted the report of Dr. Henry S. Friedman, M.D., who
II. LEGAL STANDARDS
The class action device is appropriate in cases where it “saves the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion under Rule 23.” General Telephone Co. of the Southwest v. Falcon,
A party seeking class certification bears the burden of proving that the proposed class action satisfies the requirements of Federal Rule of Civil Procedure 23. Johnston v. HBO Film Mgmt., Inc.,
Rule 23(a) requires that the movant for class certification demonstrates that:
(1) the class is so numerous that joinder of all members is impracticable; (1) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.
Fed.R.Civ.P. 23(a).
As to Rule 23(b), Plaintiffs here move for certification of their property class under Rule 23(b)(3) and for certification of their medical monitoring class under both Rule 23(b)(2) and (b)(3). Rule 23(b)(2) permits certification where “the party opposing the class has acted or refused to act on grounds generally applicable to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.R.Civ.P. 23(b)(2). Rule 23(b)(3)
The Third Circuit Court of Appeals clarified the legal standard for class certification and the district courts’ attendant duties in In re Hydrogen Peroxide Antitrust Litigation,
Applying these tenets, the Court of Appeals determined that class certification may have been improper because the defendants had offered evidence, including expert testimony, that called into question the plaintiffs’ arguments under the predominance inquiry of Rule 23(b)(3). Therefore, the Court of Appeals vacated the class certification order and remanded the case for another certification decision. See also Hohider v. United Parcel Service, Inc.,
III. DISCUSSION
A. Class Definitions
Before delving into the Rule 23 analysis, the Court first must consider whether a precisely defined class exists and whether the named plaintiffs are members of the proposed class. East Texas Motor Freight Sys., Inc. v. Rodriguez,
All individuals who lived for one year or more in total (whether consecutively or not) within McCullom Lake Village during the time period from January 1, 1968 to December 31, 2002. Excluded from the class are individuals for whom brain cancer has been detected and individuals bringing claims in any court of competent jurisdiction arising out of exposure to chlorinated solvents.
Pis.’ Reply Br. at 25. The only substantive claim to be pursued by this class is one for medical monitoring. Since setting forth the above class definition, Plaintiffs have urged the Court to modify the elass definition to specifically exclude from the class those individuals with cancer of the brain or liver, as well as those with brain tumors and/or cryp-togenic cirrhosis. See Pis.’ Mem. in Further Supp. of Pis.’ Mot. for Class Cert, at 11. Plaintiffs assert that such a modification will exclude from the class any individuals who, under their theory of the case, may be entitled to bring a current personal injury suit against Rohm and Haas. Id.
The proposed Property Damage Class consists of:
All persons who presently own real property within McCullom Lake Village, or who owned real property within the Village as of April 25, 2006 (the date of the filing of the Complaint) through the present. Excluded from the Class are individuals who have already brought claims in any court of competent jurisdiction arising out of exposure to chlorinated solvents.
Pis.’ Reply Br. at 25. The claims brought on behalf of this class are for public and private nuisance, negligent and intentional trespass, strict liability, negligence and negligence per se, CERCLA, and conspiracy.
B. Rule 23(a)
1. Numerosity
Numerosity requires a finding that the putative class is “so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a). “No single magic number exists satisfying the numerosity requirement.” Beh-rend v. Comcast Corp.,
The Plaintiffs here allege that there are approximately 400 homes in the Village, and approximately 1,000 current residents. Thus, the Medical Monitoring Class consists of at least 1,000 claimants, and the Property Damage Class consists of at least 400 claimants. The proposed classes include not only current residents and property owners, but also some unspecified number oí former residents and property owners. Consequently, each class could number potentially in the thousands. Rohm and Haas does not dispute that the numerosity requirement is met here, see 06/13/2008 Hr’g Tr. at 61, and the Court agrees.
2. Commonality
To satisfy the commonality requirement, plaintiffs must show the existence of at least one question of law or fact common to the class. Fed.R.Civ.P. 23(a). The commonality threshold is low, Georgine v. Amchem Prods., Inc.,
Because the “cohesiveness” requirement of Rule 23(b)(2) and the “predominance” requirement of Rule 23(b)(3)
3. Typicality
To evaluate typicality, the Court must inquire “whether the named plaintiffs’ claims are typical, in common-sense terms, of the class, thus suggesting that the incentives of the plaintiffs are aligned with those of the class.” Beck v. Maximus, Inc.,
Here, the claims of the class representatives are similar to those of the other members of the proposed classes. All of the claims arise from and challenge the same course of allegedly unlawful conduct; the Gateses do not allege that they were singled out in any way. See In re Prudential Ins. Co.,
That being said, Rohm and Haas presents some strong arguments regarding the differences between the Gateses’ claims and the claims of absent class members in the proposed classes. Primarily, these differences arise because the Gateses’ claims are solely for medical monitoring and property loss, while other class members may have present or future claims for personal injuries. These arguments could be analyzed under the typicality requirement of Rule 23(a), but the Court considers them to be better analyzed in the context of the adequacy requirement.
4. Adequacy
Class representatives must “fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). The adequacy inquiry “serves to uncover conflicts of interest between named parties and the class they seek to represent.” Beck,
At the outset, the Court concludes that class counsel appears to be adequate, and Rohm and Haas does not argue otherwise. Class counsel has vigorously pursued this lawsuit, successfully defeating several motions for partial summary judgment and ably representing the class members in various discovery disputes. Counsel appears to be appropriately mindful of applicable professional responsibility duties.
The other adequacy inquiry, however, is more problematic, and raises two basic categories of concern: (1) concern for class members who have (or believe they have) present injuries other than brain cancer; and (2) concern for class members who do not have (or do not believe they have) present injuries, but who may develop such injuries in the future.
As to the first category, Rohm and Haas asserts that the Gateses are not adequate representatives because they do not have, and are not suing for, any present personal injuries; rather, they are suing solely for medical monitoring and for property loss. According to Rohm and Haas, this creates a potential conflict because there may be absent class members who, unlike the Gateses, currently believe they have personal injuries. As articulated in Plaintiffs’ Reply Brief, the proposed Medical Monitoring Class only excludes “individuals for whom brain cancer has been detected”; notably, it does not exclude individuals with other kinds of personal injuries resulting from exposure to chemical solvents. Pis.’ Reply Br. 25. Even with the modification subsequently proposed by Plaintiffs, see Pis.’ Mem. in Further Supp. of Pis.’ Mot. for Class Cert, at 11, the class may still include people with certain present personal injuries. Similarly, the Property Damages Class only excludes individuals “who have already brought claims in any court of competent jurisdiction arising out of exposure to chlorinated solvents.” Pis.’ Reply Br. 25. Examining these two proposed classes, the Court recognizes that there is a risk that claims arising from such injuries will be
Although the Court cannot prejudge the res judicata effects of a decision, the Court does not believe that the risk of claim-splitting with present personal injuries is fatal to certification. First, similar arguments have been rejected in other cases.
Third, it is likely that any potential conflict could be resolved by amending the class definitions to exclude any individuals who presently have any physical injury as a result of the Defendants’ conduct. See, e.g., Bratcher v. Nat’l Standard Life Ins. Co.,
The Court now turns to the second category: concern for class members who do not have (or do not believe they have) present injuries, but who may develop such injuries in the future. These class members, Rohm and Haas argues, may be barred from pursuing claims based on future injuries by rules against claim splitting and/or res judicata.
Such a result likely would not occur if Pennsylvania substantive law were held to apply. See Barnes,
That being said, the risk of this possibility does appear to be low. First, Illinois law may not apply to the claims in this case. Second, even if Illinois law applies, a future court would not necessarily apply the single-recovery rule to bar future personal injury claims stemming from exposure to vinyl chloride, on the theory that the claims should have been brought in this action. See Miles v. Phillip Morris Companies, No. 00 L 0112,
To decide whether to certify the proposed medical monitoring class, the Court need not determine the precise effect of the Illinois so-called single recovery rule, or determine whether Illinois or Pennsylvania substantive law applies to this ease.
C. Rule 23(b)
Beyond meeting the requirements of Rule 23(a), the Plaintiffs must also demonstrate that at least one of the requirements set forth in Rule 23(b) is met. Here, as stated above, the Plaintiffs seek to certify the Medical Monitoring Class under Rule 23(b)(2) and/or Rule 23(b)(3),
1. Medical Monitoring Class-Certification Under Rule 23(b)(3)
Rule 23(b)(3) requires that “[ijssues common to the class must predominate over individual issues.” In re Hydrogen Peroxide Antitrust Litig.,
To determine the nature and extent of any individual issues, the parties look to the elements of the cause of action. This Court already has predicted that, conceptually, the Illinois Supreme Court would recognize a claim for medical monitoring under Illinois law. See Gates v. Rohm and Haas Co.,
(1) exposure greater than normal background levels;
(2) to a proven hazardous substance;
(3) caused by the defendant’s negligence;
(4) as a proximate result of the exposure, plaintiff has a significantly increased risk of contracting a serious latent disease;
(5) a monitoring procedure exists that makes the early detection of the disease possible;
(6) the prescribed monitoring regime is different from that normally recommended in the absence of the exposure; and
(7) the prescribed monitoring regime is reasonably necessary according to contemporary scientific principles.
Redland Soccer Club, Inc. v. Dep’t of the Army,
a. Background-Contamination Theories
No test of any well in the Village to date has shown the presence of vinyl chloride. The Plaintiffs’ theory for class certification, however, does not rely on the presence of vinyl chloride in Village groundwater. Instead, stated most succinctly, Plaintiffs’ theory is that a shallow aquifer about a mile north of the Village—the “orange plume”— contained vinyl chloride, which volatilized into the air, leaving behind only trace chemicals, such as chloride. The theory continues to posit that the contaminated air then dispersed across the Village, affecting all individuals and property in the Village. Rohm and Hass, not surprisingly, disagrees with this theory and with the evidence offered in support of it.
Much of the parties’ debate—and significantly, their contrasting expert testimony— concerns issues that the Court need not address at the certification stage of the litigation. In recognition of this, the parties have requested that the Court defer ruling on Defendants’ Omnibus DaubeH motion until after class certification, which the Court has agreed to do. Accordingly, the Court will not resolve any conflicts in expert testimony that are not necessary to the Court’s decision on certification. In accord with In re Hydrogen Peroxide Antitrust Litigation,
Regarding the elements of a medical monitoring claim, the Court notes that whether vinyl chloride is a hazardous substance,
b. Exposure Greater than Background Levels
The Third Circuit Court of Appeals previously has noted that “individualized issues can become overwhelming in actions involving long-term mass torts (i.e. those which do not arise out of a single accident).” Geor-gine,
Based on the reports and testimony of their experts, the Plaintiffs argue that they do not, and need not, seek to prove the actual exposure level for any given class member. Indeed, they admit that “individual exposure [to vinyl chloride] will vary depending on factors such as the time spent in the Village....” Pis.’ Reply Br. at 53-54. Instead, Plaintiffs assert that class treatment is appropriate because there is a common minimum average daily exposure rate over time for any point within the Village, which they calculate to be 0.127 p,g/m3, a value that exceeds the 0.042 |xg/m3 background level of vinyl chloride. Id. at 54. To arrive at this 0.127 (xg/m3 minimum average daily exposure rate, Plaintiffs rely heavily on the expert testimony of Dr. Ginsberg, who in turn relies on data generated by other of Plaintiffs’ experts, notably Drs. Oberdorfer and Zannetti.
Drs. Oberdorfer and Zannetti used monitoring well data to simulate annual average concentrations of vinyl chloride in the air
Using the “high scenario” figures from the spot on the northern edge of the Village,
Dr. Zannetti did not testify at the three-day certification hearing in this case. Instead, Plaintiffs presented the testimony of Dr. Ginsberg in regard to exposure levels of the class. Dr. Ginsberg used Drs. Oberdor-fer and Zannetti’s work
The 0.127 average value was derived solely from the “high scenario” numbers for the at-
A “rigorous analysis” of Plaintiffs’ expert evidence reveals that it does not reflect that all class members were exposed to vinyl chloride at a minimum level above background, or that this determination can be made with common proof. In Plaintiffs’ Reply, they stated that Dr. Ginsberg would testify about the minimum exposure levels for each Village resident. See Pis.’ Reply Br. at 32. However, the evidence reflects that Dr. Ginsberg’s calculations involve average exposure levels, not minimum exposure levels. As Dr. Ginsberg himself testified, the 0.127 value he calculated does not reflect the minimum level to which everyone in the proposed class was exposed. Rather, it is the average exposure calculated over the span of 25 years. See 6/20/08 Hr’g Tr. at 66, 135, 156-57. Dr. Ginsberg conceded that some proposed class members would be above this average value, and others would be below it. 6/20/08 Hr’g Tr. at 135, 148, 157-58. He further stated that for any given individual, one would not look at the 0.127 number at all, but would look at the actual exposure for that person, which in some cases may be below the ambient or background level. See 6/20/2008 Hr’g Tr. at 126-27. The testimony and reports of Plaintiffs’ experts reflect that they used particularly advantageous data, for a location in the Village that was likely to have greater vinyl chloride exposure than other points in the Village, and then calculated an average exposure across the entire proposed class period. No matter what else can be said about it, this calculation of an “advantageous average” says nothing about a common minimum level of exposure. See 6/12/2008 Hr’g Tr. at 167-68.
Moreover, Dr. Ginsberg specifically admitted that exposures in the Village would vary from year to year-though he did not attempt to calculate these variations—such that a putative class member’s exposure would depend on the particular year or years in which he or she lived in the Village. See 6/20/08 Tr. at 125-27, 157-58. From a class certification perspective, this variation in exposure is fatal for including within the proposed class individuals living in the Village toward the end of the proposed class period, when exposures were the least. See, e.g., 6/20/2008 Hr’g Tr. at 158.
Expert evidence from both Plaintiffs and Rohm and Haas reflects that individual class members’ locations and lifestyles potentially could result in significant differences in exposure, making Plaintiffs’ calculation of an “average exposure” even less useful. See 6/12/2008 Hr’g Tr. at 151-53, 156-57; 6/20/08 Hr’g Tr. at 114,134,139. The time that each Village resident spent indoors, as opposed to outdoors, and the time that each individual
The evidence reflects that McCullom Lake Village is a primarily residential community, Supplemental Affidavit of Richard Roddewig at 8, and a number of its residents worked out of town. See e.g. Deposition Tr. of Glenn Gates (12/18/2006) at 7-10 (local employment outside of McCullom Lake Village); Deposition Tr. of Donna Gates (12/18/2006) at 5-9 (same); Deposition Tr. of Joanne Branham Dep. I (7/9/2007) at 75-76, 81-85, 288-89 (same); Deposition Tr. of Joseph Zakroeky (1/5/2007) at 42-43 (same); Deposition Tr. of Edwin Begley Jr. (1/5/2007) at 13-14 (same); Deposition Tr. of Bryan Freund (9/5/2007) at 115-16 (same); Deposition Tr. of Frank Weisheit (10/16/2007) at 108 (same). The exposures of the Village residents would vary, for example, between that of a salesman who lived in the Village but worked outside of the Village during the day, and a stay-at-home retiree who spent the majority of both days and nights in the Village.
A recent decision from the District of New Jersey, Rowe v. E.I. DuPont de Nemours and Company, No. 06-1810,
Here, Plaintiffs acknowledge that they need to prove “that each class member was exposed beyond the minimum level necessary to pose a heightened risk—i.e. Plaintiffs need to prove the minimum ‘danger point.’ ” Pis.’ Reply Br. at 54. However, throughout the three-day class certification hearing, Plaintiffs never articulated an actual minimum vinyl chloride exposure that was common to the entire proposed class—instead focusing on the 0.127 average value, as discussed above—and ducked the Court’s “what’s the lowest common denominator” question. 6/20/2008 Hr’g Tr. at 83. In a post-hearing submission, Plaintiffs endeavored to answer the Court’s question, stating that “the Court need only look at the isopleths, the rings superimposed on the map of the Village, generated by the parties’ ah' dispersion experts,” and each “isopleth provides an expo
In yet a later submission, Plaintiffs again embraced the isopleths, stating that “for each time period there is a minimum exposure drawn by the isopleth that circumscribes the entire Village. If the Class member living exactly upon the isopleth is exposed above background levels, then so is every other Class member, each of whom necessarily has an exposure greater than the minimum represented by the isopleth.” Pis.’ Suppl. Br. In Supp. of Class Cert, at 3. This argument mistakenly assumes a constant level of exposure for each of the time periods represented by a particular isopleth map. In other words, it assumes that exposure was at one constant value between 1940 and 1967, then at another constant value between 1968 and 1989, and so on. Of course, both the testimony presented by Plaintiffs and common sense reflect that exposure levels did not just change between the four time periods artificially designated by Plaintiffs, but also fluctuated among the different years within each time period. Therefore, assigning just one air concentration value to the entire 21-year period between 1968 and 1989, for example— especially when the value is based on the highest well reading available—is overly simplistic, not to mention unreliable and, of course, unprovable.
At the end of the day, Plaintiffs themselves point to a fatal flaw in their certification argument. They openly admit that they cannot show a common minimum exposure for every Class member that is above the background level:
[The air modeling evidence] does not presently show exposure above background for all Class members for all times because, while it is a complete model, it has been run with incomplete data. Even so, it does show exposure above background for all Class members for the time period before 1990. During the class certification hearing, Plaintiffs ... introduced testimony from the deposition of Dr. Zannetti that describes additional modeling he currently is undertaking that will result in more accurate, and increased, exposure across the Village, including during later years.
Pls.’ Suppl. Br. In Supp. of Class Cert, at 4; see 06/20/2008 Hr’g Tr. at 76-79. This passage starkly contrasts with Plaintiffs’ acknowledgement in an earlier submission that they needed to prove not just minimum exposure above the background level, but also “that each class member was exposed beyond the minimum level necessary to pose a heightened risk—i.e. Plaintiffs need to prove the minimum ‘danger point.’ ” Pis.’ Reply Br. at 54. Despite their changing tune, Plaintiffs cannot harmonize their way to the requisite common proof.
Plaintiffs also must show that each individual class member was exposed to a level of vinyl chloride that “caused each individual plaintiff to have a significantly increased risk of contracting serious latent disease! ] thereby demonstrating the need for medical monitoring.” Barnes,
Plaintiffs identify the “danger point” for exposure to vinyl chloride as 0.07 pg/m3. See 6/20/2008 Hr’g Tr. at 84, 88-99; Pis.’ Supplemental Br. In Supp. of Class Cert, at 5. They assert that “individuals residing in the Village for one year or more and exposed to vinyl chloride above the background level and above the danger point fall within the cohort for which exposure and epidemiological data support medical monitoring.” Pis.’ Mem. In Further Supp. Of Pis.’ Mot. for Class Cert at 3. This argument suffers from at least two flaws.
The first problem is that the 0.07 value was not developed with an appropriate methodology for calculating a “danger point” for purposes of a medical monitoring claim. The 0.07 value identified by Plaintiffs only reflects the level of vinyl chloride at and below which a “mixed” population is safe, in the opinion of a public health agency. It does not, however, demonstrate the opposite, i.e., that any extra levels above the 0.07 level are significantly harmful.
In Rowe v. E.I. Dupont de Nemours and Co, supra, the court rejected the plaintiffs’ use of a risk assessment to identify the “safe” level of exposure, when the assessment was based on the reported averages of individuals’ characteristics such as age, sex, weight, medical history, and water consumption patterns. Rowe,
Similarly, in Rhodes v. E.I. Du Pont de Nemours and Co.,
[a risk assessment] is of limited utility in a toxic tort case, especially for the issue of causation, because of the risk assessment’s distinct purpose. Risk assessments have largely been developed for regulatory purposes and thus serve a protection function in providing a level below which there is no appreciable risk to the general population. They do not provide information about ac*227 tual risk or causation... .Because of their appropriately prudent assumptions when there are limited data, risk assessments intentionally encompass the upper range of possible risks.
Id. at 377 (internal quotation and citation omitted). See also Sutera v. Perrier Group of Am. Inc.,
As Dr. Ginsberg himself recognized, the 0.07 number is only a “screening target.” See 6/20/2008 Hr’g Tr. at 81, 102. As such, the Court concludes that the 0.07 value may be appropriate as a prophylactic safety marker, perhaps for regulatory use, to minimize potential risks and protect the groundwater and air of a mixed population of individuals such as those in the Village. See 6/20/2008 Hr’g Tr. at 120-22. However, it ought not be used as a predictive measure of actual risks for every individual in that population. “[P]recautionary measures to keep the general population safe are a fundamentally distinct form of relief from the medical monitoring cause of action.” Rhodes,
The second flaw in Plaintiffs’ arguments is that, even if the 0.07 value were an appropriate “danger point,” which it is not, Plaintiffs’ evidence does not reflect that all class members were exposed to a level of vinyl chloride above 0.07, or that this inquiry can be addressed with common proof. As discussed above, Plaintiffs’ evidence says nothing about the actual exposure of each putative class member, only about the fictional average exposure. The Court must conclude in this ease, given the nature of the facts and circumstances, nothing short of an individualized inquiry could determine whether class members were exposed to a level of vinyl chloride above 0.07.
d. Whether the Proposed Monitoring Regime is “Reasonably Necessary”
The Court now turns to the question of whether the prescribed monitoring regime (that is, serial MRI exams) is reasonably
[E]aeh class member must prove that the monitoring program he requires is different from that normally recommended in the absence of exposure. To satisfy this requirement, each plaintiff must prove the monitoring program that is prescribed for the general public and the monitoring program that would be prescribed for him. Although the general public’s monitoring program can be proved on a classwide basis, an individual’s monitoring program by definition cannot.
Barnes,
Accordingly, Rohm and Haas argues that the Court must determine the propriety of Plaintiffs’ serial MRI proposal at the certification stage of this case. Georgine,
Plaintiffs dispute this, arguing that serial MRIs are reasonable for the proposed Medical Monitoring Class, and that in any event, the Court and Plaintiffs may modify the scheme after certification or allow individuals to tailor it to their particular circumstances (for example, a CAT scan for people who cannot tolerate MRIs). Plaintiffs submit the report of Dr. Neiman, who opines that serial MRIs and neurology examinations as well as other tests should be carried out for the proposed class members.
The Court would not need to resolve this issue, given that the Court has already determined that certification is inappropriate due to Plaintiffs’ inability to demonstrate that all class members were exposed to a minimal level of exposure above background levels, let alone above a “danger point” that carries an increased risk. That being said, the Court observes that the problematic basis for issuing a blanket prescription for serial MRIs in asymptomatic individuals, coupled with the risks and drawbacks of serial MRI procedures, only strengthens the denial of class certification.
For instance, the proposed class includes all residents of the Village, including children. The administration of MRIs to young children presents certain challenges because the children must lie still in the MRI machine for long periods of time. Conducting MRIs on children may require administering drugs to sedate or anesthetize them, a process that may prompt side effects of its own. Report of Henry S. Friedman, M.D. at 2. Also, MRIs require the use of a contrast agent (gadolinium), which is injected into the patient’s vein. The contrast agent may pose risks for patients with kidney disease, for whom it can lead to nephrogenic systemic fibrosis, a potentially fatal condition; therefore, gadolinium is not recommended for use with such patients. Id. In addition, medical
Plaintiffs assert that individual differences and medical needs can be accommodated through the use of CAT scans, open MRI machines, and other neurological exams. However, the determination of which accommodation, if any, is appropriate for which patient necessarily involves individual questions that cannot be determined on a class-wide basis. And even if the risks of an MRI for a particular patient could be ameliorated or at least minimized, it is far from clear that “informed physicians, unaffected by litigation considerations, would recommend routine monitoring” with MRIs in asymptomatic patients such as the proposed class members. In re Rezulin Prods. Liab. Litig.,
People should be treated as individuals. The decision to get an MRI ... is an individual decision that you need to make each and every time ... [E]ach person is different. Each person will have difference signs, symptoms, will have a different medical story that may lead a physician to order an MRI or to not order an MRI. 6/13/2008 Hr’g Tr. at 149. See also id. at 140-42.36
To be sure, Plaintiffs have submitted evidence that the false positive rate for MRIs is low and the screening of asymptomatic individuals may be beneficial. See Report of Melissa Neiman, M.D. (“Neiman Report”).
Moreover, the problems with the monitoring scheme can not be alleviated by a decision to just “deal with it later” at the summary judgment stage. Although the parties and the Court may alter a monitoring scheme long after the certification stage of the litigation has passed, that does not mean that problems with a monitoring plan can be ignored at the certification stage. See Barnes,
a. “Generally Applicable” Conduct and Injunctive Relief
Rule 23(b)(2) permits certification when “the party opposing the class has acted or refused to act on grounds generally applicable to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R.Civ.P. 23(b)(2). Therefore, to secure certification under Rule 23(b)(2), Plaintiffs must demonstrate that Rohm and Haas’s conduct is “ ‘generally applicable’ to the class and that the relief they seek is primarily injunc-tive.” Rowe,
Here, the Court assumes without deciding that Rohm and Haas’s conduct is “generally applicable” to the medical monitoring class, inasmuch as Rohm and Haas allegedly has released some amount of vinyl chloride that potentially affected the members of the proposed monitoring class. Also, Plaintiffs’ request for a court-ordered, court-supervised medical monitoring program can be considered a request for injunctive relief. See Barnes,
b. Cohesiveness
“While 23(b)(2) class actions have no predominance or superiority requirements, it is well established that the class claims must be cohesive.” Barnes,
The individual issues that defeat the predominance requirement of Rule 23(b)(3) also defeat the cohesion requirement of Rule 23(b)(2).
Plaintiffs stress that Rohm and Haas has “no answer to perhaps the most compelling fact about the McCullom Lake community: [tjhere is an extraordinary cluster of brain cancer cases concentrated in time and concentrated in location. Many times, the Court was show[n] maps of the area; there simply is nothing else around to explain why so many people have developed brain tumors.” Pis.’ Mem. in Further Supp. of Pis.’ Mot. for Class Cert, at 2; see also Pis.’ Reply Br. at 32 and Report of Richard Neugebauer at 36-37. Nonetheless, unless they meet the immutable legal requirements, an assorted cluster of brain cancer diagnoses in the Village, while puzzling, frustrating and, above all, certainly tragic on a human level, together with counsel’s compassionate and dramatic rhetoric that is designed to capture the Court’s attention, do not alter the Court’s analysis of the requirements of Rule 23 and the necessity of common proof to demonstrate a minimal level of exposure beyond background level or significant increased risk. All things considered, and recognizing that the individuals who actually do suffer from brain cancer are free to pursue Rohm and Haas individually, certification is not warranted on the record presented to the Court.
3. Property Damage Class-Certification Under Rule 23(b)(3)
a. The Nature of Plaintiffs’ Claims
As noted, Plaintiffs have brought numerous claims on behalf of the purported “property class” for “compensatory relief to
Plaintiffs’ property class claims have not attracted much of the parties’ attention during the certification proceedings. Nevertheless, Plaintiffs’ motion for class certification does set forth the elements (in part) of each of the property claims. Plaintiffs’ motion and reply in support also, very briefly, set forth the “common questions” that Plaintiffs claim will dictate whether all class members can satisfy the elements of each claim. Pis.’ Mot. for Class Cert, at 38-43; Pis.’ Reply Br. at 43-45. These submissions make plain that Plaintiffs plan to try to prove the Property Class’s claims by showing that the properties at issue were actually contaminated. For example, Plaintiffs claim as a common question whether Rohm and Haas’s acts “contaminated the air and water supply of McCullom Lake Village,” whether Rohm and Haas’s acts “contaminated private wells throughout McCullom Lake Village,” whether Rohm and Haas “caused [certain chemicals] to enter private wells in McCullom Lake Village.” Pis.’ Mot. for Class Cert, at 38-40. At the class certification hearing, Plaintiffs stated in regard to their property claims that
the liability issue is Was there exposure[?] Was there an impact[?] And that’s a question of whether vinyl chloride got there and did it get there in an amount that constitutes, as a matter of law, an injury.
06/20/2008 Hr’g Tr. at 29. To make their class-wide showing, Plaintiffs rely on the same expert testimony that they offered to support their medical monitoring claim.
b. Predominance Requirement of Rule 23(b)
As an initial matter, Plaintiffs’ property claims, like their medical monitoring claims, must rely solely on airborne contamination from the orange plume. This is because Plaintiffs’ expert, Dr. Ginsberg, admitted that contamination from the purple plume would not have affected all property in the Village. See e.g., 06/20/2008 Hr’g Tr. at 112-15.
The parties seem to agree that not all issues relating to the property class’s claims can be satisfied as part of a class proceeding. Rohm and Haas argues that, although questions relating to its own conduct may be common, the effect, if any, of its contamination on the property values claimed to be lost here will vary by property. Rohm and Haas Surreply Br. at 58-59. In support of this argument, Defendants proffer the expert report of a realtor. See Affidavit of Richard Roddewig at ¶ 8.F. Rohm and Haas also argues that, even assuming that every property can be found to be contaminated (and thus “injured” in some way), Rohm and Haas still “would have the right to prove that contamination allegedly affecting an individual property came from a source other than [its] plant.” Rohm and Haas Surreply Br. at 60.
Plaintiffs acknowledge that “both the fact of, and amount of, damage may vary for individual homes across the Village.” Pis.’ Mem. In Further Supp. of Pis.’ Mot. for Class Cert, at 10. But, Plaintiffs cast then-proposed class as a “liability” class and argue that Defendants’ arguments merely go to the measure of damages “which will be handled after the liability issues are determined,” at the class trial. 06/20/2008 Hr’g Tr. at 28-29. Plaintiffs therefore do not present any expert testimony of their own regarding the fact or extent of property damage. Instead, Plaintiffs argue the bifurcation of the property claims and that “the extent of that variation in the fact and amount of damage” can be
Even assuming that the fact of contamination was provable by common proof here, liability alone cannot be proven with common proof. Rohm and Haas essentially argues that Plaintiffs cannot prove causation on a class-wide basis—that plaintiffs cannot prove that any contamination that is present on the at-issue properties was (1) there because of Rohm and Haas, and (2) that it had any effect. “Common evidence may offer one potential source of those contaminants, but many other explanations may exist that are specific to a particular property.” Fisher v. Ciba Specialty Chems. Corp.,
These concerns are somewhat ameliorated if Plaintiffs choose to pursue a case for contamination in the past, as opposed to contamination that arguably continues to today. But see Memorandum and Order issued July 30, 2008 (finding sufficient evidence to support a showing of present contamination for purposes of denying motion for partial summary judgment).
Of course, “the necessity of calculating damages on an individual basis will not necessarily preclude class certification.” Steering Comm. v. Exxon Mobil, Corp.,
Regardless, as Plaintiffs admit, damages— both the fact of and extent of—are questions that would remain following the class-wide determination of any common issues. Although this is not a fact that dictates a finding of no predominance, Steering Comm.,
On balance, the Court finds that common issues do not predominate as to Plaintiffs’ property damage claims. Although many aspects of Plaintiffs’ claims may be common questions, the parties agree that resolution of those questions leaves significant and com
4. Superiority Requirement of Rule 23(b)(3), as it Pertains to Medical Monitoring Class and Property Damage Class
To certify a class under Rule 23(b)(3), the Court must also determine 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). Several factors are relevant to the superiority inquiry: “(A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action.” Fed.R.Civ.P. 23(b)(3). In effect, “[t]he superiority requirement asks the court to balance, in terms of fairness and efficiency, the merits of a class action against those of alternative available methods of adjudication.” In re Prudential Ins. Co.,
Here, the Court need not conduct an analysis of the superiority requirement with respect to either of the proposed classes, because the Court already has determined that certification is inappropriate for both. Nevertheless, the Court’s concerns about the number, complexity, and scope of issues that the parties recognize are plaintiff-by-plaintiff determinations also go to the superiority issue. Even if the Court were to certify common issues, the subsequent separate proceedings necessary for each plaintiff would undo whatever efficiencies such a class proceeding would have been intended to promote. Even more problematic, because a jury may be called upon to weigh the potential impact from Rohm and Haas’s actions on a particular property against those of another source of contamination, the “second” jury could well wind up re-considering the evidence of Rohm and Haas’s actions presented in the class proceeding. Because it appears that a class proceeding would not promote much efficiency, if any, the Court finds that it is not superior to individual proceedings.
5. Rule 23(c), as it Pertains to Medical Monitoring Class and Property Damage Class
Pursuant to Rule 23(c), “a court has the inherent power and discretion to redefine and modify a class in a way which allows maintenance of an action as a class action.” In re Methyl Tertiary Butyl Ether (“MTBE”) Prods Liab. Litig,
IV. CONCLUSION
For the reasons above, Plaintiffs’ Motion for Class Certification is denied. An Order consistent with this Memorandum follows.
ORDER
AND NOW, this 5th day of March 2010, upon consideration of the Plaintiffs’ Motion for Class Certification (Docket No. 41) and all memoranda submitted in connection therewith, and following a hearing on class certification conducted on June 12, 13, and 20, 2008, it is hereby ORDERED that the Motion is DENIED consistent with the accompanying Memorandum.
IT IS FURTHER ORDERED that a status conference is scheduled to be held with the Honorable Gene E.K. Pratter on March 29, 2010 at 2:30 p.m. in Chambers, Room 7614, United States Courthouse.
Notes
. Defendants Huntsman and Huntsman Polyurethanes were dismissed without prejudice by stipulation on March 23, 2007. Defendant Modine reached a settlement with the Plaintiff class, which the Court approved. Accordingly, Rohm and Haas Company, Rohm and Haas Chemicals, LLC, and Morton International, Inc. (collectively, "Rohm and Haas”) are the only remaining defendants actively opposing class certification at this stage.
. Plaintiffs and Rohm and Haas agree that this is the correct background level for purposes of the medical monitoring claim, and represents the level reported in the 1999 NATA data for McHen-ry County. See 6/12/2008 Hr’g Tr. at 177; 6/20/2008 Hr’g Tr. at 74.
. Plaintiffs also bring a claim for fraud, but do not seek class certification for that claim. See 06/12/2008 Hr’g Tr. at 124-25.
. On the map included in the Plaintiffs' Reply Brief, the deeper plume is depicted in purple. See Pis.’ Reply Br. in Supp. of Class Cert. (“Pis.' Reply Br.”) at 21.
. Rohm and Haas uses data from these wells to try to "debunk" the Plaintiffs’ "purple plume” theory and argue that groundwater flows from the Ringwood facility to the southeast, not south toward the class area. See Rohm and Haas Supplemental Br. Addressing Recent Case Law in Opp. to Class Cert, at 7. This argument is no longer germane to class certification because, as explained later in this section, Plaintiffs now have refined their theories and seek class certification only on their "orange plume” theory.
. On the map included in the Plaintiffs' reply brief, the shallow plume is depicted in orange. See PL Reply 21.
. Plaintiffs' own evidence reflects that Plaintiffs' groundwater and "indoor air” theories of contamination would not apply to all members of the proposed classes and, therefore, would not aid Plaintiffs in their motion for class certification. See 06/20/2008 Hr’g Tr. at 112-15.
. Upon the agreement of the parties, the Court has deferred decision on the Rohm and Haas Omnibus Motion to Exclude Reports and Testimony by Plaintiffs' Experts until the merits phase of the case. See Joint Class Certification Hearing Plan at 2.
. This "broad discretion” often produces wholly different results in actually or ostensibly similar situations. In In re Welding Fume Prods. Liab. Litig., 245 F.R.D. 279 (N.D.Ohio 2007), the court denied certification of a class of plaintiffs alleging an increased risk of neurological and neurop-sychological disease from exposure to welding fumes, and seeking medical monitoring and other relief. The court stated:
"[T]here is no common set of factual circumstances predictive of whether a court will certify a medical monitoring class. It is easy to find cases, for example, where a court granted class certification to plaintiffs in a limited geographic region who sought medical monitoring after suffering single-source exposure to a toxin in their drinking water, and just as easy to find cases where a court denied certification under similar conditions—and there is no obvious or simple way to reconcile the two different results."
Id. at 304 (emphasis in original). See also id. at 305, n. 153 (comparing chemical exposure cases where class certification was granted with cases where certification was denied); LaBauve v. Olin Corp.
. In their Reply Brief, the Plaintiffs substantially modified the proposed class definitions initially set forth in their Complaint. See Pis.' Reply Br. at 23. Sensibly, modification of a class definition is contemplated by the Federal Rules of Civil Procedure, see Fed.R.Civ.P. 23(c)(1), and a court “is not bound by the class definition proposed in the complaint,” Robidoux v. Celani,
. As for people with current personal injuries that do not fit Plaintiffs’ theory of the case, Plaintiffs urge that the Court should permit such people to opt-out of the litigation. See Pis.' Mem. in Further Supp. of Pis.’ Mot. for Class Cert, at 11. The availability and usefulness of the “opt-out” mechanism is discussed later in this opinion.
. "[Wjhere an action is to proceed under Rule 23(b)(3), the commonality requirement is subsumed by the predominance requirement” because "it is far more demanding than the Rule 23(a) (2) commonality requirement.” Danvers Motor Co., Inc. v. Ford Motor Co.,
. The Court has not yet determined whether Illinois substantive law or Pennsylvania substantive law applies in this case. Rohm and Haas contends that Illinois law applies, while the Plaintiffs’ reliance on Pennsylvania causes of action suggests that they take the position that Pennsylvania law applies.
Although Rule 23 makes no reference to choice-of-law issues, other courts have determined that such issues should be addressed at the certification stage because they can, and often do, pervade every inquiry of Rule 23. See In re Welding Fume Prods. Liab. Litig.,
In this case, however, the Court need not determine whether Illinois or Pennsylvania substantive law applies to Plaintiffs’ claims, because the differences between them—if any—are immaterial to the Court’s decision to deny class certification. See In re Welding Fume Prods. Liab. Litig.,
. But see In re Welding Fume Prods. Liab. Litig.,
. For example, in Muniz v. Rexnord Corp., No. 04-2405,
. Plaintiffs have moved to certify the property damage class under Rule 23(b)(3), and the medical monitoring class under Rule 23(b)(2), or in the alternative, Rule 23(b)(3). See Pis.' Reply Br. at 56. They assert that the opt-out mechanism is available under both 23(b)(3) and 23(b)(2), but the Court is less sanguine that opt-outs are permitted under Rule 23(b)(2), at least in the context of this case. See discussion in footnote 38, infra. Regardless, the Court need not resolve this issue to conclude that certification is inappropriate here:
. See In re MTBE Prods. Liab. Litig.,
. See discussion in footnote 13, supra.
. "The Manual for Complex Litigation observes that '[c]ourts are divided over whether Rule 23(b)(2) or 23(b)(3) is the appropriate vehicle for certifying a mass tort class for medical monitoring.' ” In re Welding Fume Prods. Liab. Litig.,
. In a brief submitted after the In re Hydrogen Peroxide Antitrust Litigation opinion was issued, Plaintiffs stated that they "welcome a rigorous analysis of their evidence in support of class certification.” Pis.' Supplemental Br. in Supp. of Class Cert, at 1. Notably, Plaintiffs did not request to submit further expert evidence or ask the Court to resolve Rohm and Haas's Omnibus Daubert motion prior to deciding certification.
. Rohm and Haas argues that the extent to which vinyl chloride is "hazardous” for a particular individual may depend, to some extent, on individualized inquiries regarding each class member's height, weight, breathing rate, medical history, physiology, and the presence or absence of particular enzymes in an individual's body. See Ginsberg I Dep. 58-59, 134-39, 229-35, 237-38. Rohm and Haas also argues that these individualized factors contribute to the precise degree of "risk” that each person experiences from a given level of vinyl chloride. Surreply Br. of Defs. in Opp. to Pis.’ Mot. for Class Cert, at 7.
The Court understands that these individualized factors may affect the precise degree to which vinyl chloride is carcinogenic for different people. However, these factors, without more, likely do not raise determinative individual questions with respect to the question of whether vinyl chloride is considered a "hazardous” sub
At any rate, here there are more compelling reasons to deny certification, namely, that Plaintiffs' evidence is avowedly based on average exposures, and Plaintiffs cannot demonstrate that every proposed class member was exposed to a level of vinyl chloride above background level, let alone to a level that would carry a significantly increased risk of a latent disease.
. The Georgine decision was issued in the context of a motion to certify a personal injury class, rather than a medical monitoring class; however, the point regarding individual issues remains instructive.
. The Third Circuit Court of Appeals has identified a "potential limited exception to the general requirement that plaintiffs demonstrate above-background level exposure, an exception that ensures that the most egregious polluters, those who cause abnormally high degrees of contaminants to permeate an entire geographical area, do not escape medical monitoring liability by virtue of their own extraordinary malfeasance.” In re Paoli Railroad Yard PCB Litig. (“Paoli III"),
. Notably, with respect to the "high scenario,” only one air concentration value was calculated for each of the designated time periods for the spot in the Village closest to the orange plume. So, for example, one air concentration value was applied to the entire time period between 1940 and 1967, and then a different air concentration value was applied to the entire time period between 1968 and 1989.
. Dr. Ginsberg described his calculation of the 0.127 figure in two different, contradictory ways. At the evidentiary hearing on this matter, Dr. Ginsberg testified that he "averaged the concentrations across [Dr. Zannetti’s] isopleths to get a central tendency for the exposure over a twenty-five year period to vinyl chloride that would be averaged across the village.” 06/20/2008 Hr’g Tr. at 65-66. Dr. Ginsberg further testified that he based his 0.127 |xg/m3 calculation on Dr. Zannetti’s isopleths maps, such that his number "used both ends of his isopleths distribution. One was at the closer end to the contamination, one was at the further end.” Id. at 128.
At his deposition, however, Dr. Ginsberg stated that he only took Dr. Zannetti’s "high scenario” figures from Dr. Zannetti’s figure 6. 1, which calculated only for the point of the Village that is closest to the orange plume. Deposition Tr. of Gary Ginsberg (11/08/2007) ("Ginsberg Dep. II”) at 179-81, see also EnviroComp Report at 34. Dr. Ginsberg further testified that he took the "high scenario” number applicable to each of the years he was interested in (1978 to 2002), added them up, and then simply divided by 25 to get a further average. Ginsberg Dep. II at 179-81.
Having examined Dr. Ginsberg's Report, deposition testimony, and testimony at the class certification hearing, it appears that Dr. Ginsberg’s "high scenario” explanation during his deposition (and not his "special averaging” explanation at the class certification hearing) is most consistent with the methodology that Dr. Ginsberg used to calculate the 0.127 value. Regardless, under either of Dr. Ginsberg’s explanations (both of which employ an averaging technique), certification is inappropriate. Suffice it to say, an average is an average is an average. It is, in essence, a convenient fiction made up of numbers that are higher and lower than the average; it does not reflect whether every putative class member was exposed to vinyl chloride at a level above background, let alone at a level that carries a significantly increased risk of a latent disease.
. Dr. Ginsberg also testified as to the risk of brain cancer posed by such exposure. See, e.g., 06/20/2008 Hr'g Tr. at 79-82.
. Dr. Ginsberg also developed a second "exposure estimate” for individuals living in a house above the deeper (purple) plume for the 25-year period between 1978 and 2002, who used well water to take showers, wash dishes and engage in other household activities (“indoor estimate”). 06/20/2008 Hr'g Tr. at 112-14. This indoor estimate is much higher than the estimate for outdoor exposure. However, Plaintiffs assert that the outdoor number is sufficient for class certification purposes, and their arguments throughout the certification process have been focused on the outdoor number. See 06/12/2008 Hr’g Tr. at 29-30. Also, Plaintiffs do not contend that the higher indoor estimate could apply to all individuals in the proposed classes, given that by definition it only applies to certain individuals living above the deeper plume. See 6/20/2008 Hr’g Tr. at 112-15.
. The fact that the proposed medical monitoring class is defined to include people living in the Village for one or more years, whether consecutively or not, may respond to this issue as a matter of definition, but the inclusive definition does not solve the problem and differences caused by the host of variations of exposure.
. As noted earlier, according to Plaintiffs’ theories of the case, there is additional variation in exposure depending on whether an individual resident lived directly within the hypothesized purple plume or outside of it. See discussion in footnote 27, supra. See also 6/20/2008 Hr’g Tr. at 112-15; Supp. Affidavit of Roddewig ("Rod-dewig Supp. Aff.”) at 3.
. Plaintiffs assert that they need not demonstrate that every class member ultimately will prevail at trial, and that at trial the Court could parse out the exposure evidence based on specific years, with different findings for each. They state:
if the jury accepts Plaintiffs’ evidence that .07 constitutes a danger point, the fact that some class members might be found not to have been exposed at levels above .07 would not be a bar either to certification or to recovery by the remaining Class members. Depending upon the evidence at the time of trial, the Court may instruct the jury to make specific findings of exposure for certain years, for example, such that the jury could find that Class members in one time period had exposure exceeding the danger point while others did not. In such a case, judgment could issue for part of the Class and not for others, but judgment as to all of the Class members will have been determined by presentation of common evidence.
Pis.’ Mem. in Further Supp. of Pis.' Mot. for Class Cert, at 5, n. 1. Given the evidence presented in this case, the method urged by Plaintiffs would be tantamount to an inappropriate judicial attempt to manufacture common issues from individual issues, not to mention a logistical nightmare, that likely would not alleviate the problems with the proposed class.
In the first place, common proof could not be used to calculate year-specific exposures for every year of the class period, because that method would still depend on year-long average exposures (and not minimal exposures), and it would not account for people who moved in and out of the Village in the middle of years, or who did not
. For example, the concept of uniform vaccinations for the entire population regardless of individual and family medical histories, immune systems, and genetic disparities is based on the concept of risk. Of course, even if no one was vaccinated, not all human beings would contract every infectious disease. Nevertheless, people are generally considered to be "at risk” simply because the diseases exist; hence, the justification for vaccinations.
. The limitations of public health risk assessments become even more apparent when examining the different screening targets in relation to one another. For instance, the Occupational Safety and Health Administration PEL standard for vinyl chloride exposure is thousands of times higher than the 0.127 average value calculated for the putative Medical Monitoring Class (let alone the 0.07 value that Plaintiffs assert as a danger point). See 6/20/2008 Hr'g Tr. at 118-24; Valberg Report at 24, 32 (noting that the OSHA standard for vinyl chloride in the workplace is 2,560 (Ag/m3). Dr. Ginsberg also testified that the "most current de minimis risk level or comparison benchmark is actually 0.16.” and explained that the 0.07 figure was for a "mixed population” of adults and children because children are more susceptible to the effects of vinyl chloride. See 6/20/2008 Hr’g Tr. at 80-81.
As a prophylactic societal safety measure, it may well make sense to have a higher exposure safety guideline for a population of working adults than for a population of resident adults or for a population of children. However, it is also apparent that the OSHA level or the 0.16 level may apply to at least some members of the proposed class, namely those adults who typically spend 40 hours in the Village per week. For those adults, Plaintiffs would be arguing that a level of exposure far less than the OSHA guideline is a "danger point.” See 06/20/2008 Hr'g Tr. at 92, 101-04.
. Moreover, many of the same individual issues discussed earlier regarding exposure beyond background levels, also apply here regarding exposure at a level that carries a significantly increased risk of a latent disease. "Whether a plaintiff has a significantly increased risk of contracting a latent disease requires an individualized inquiry that takes into account, among other things, the person’s medical profile, personal risk factors and family history.” Lipinski v. Beazer East, Inc., 76 Pa. D. & C.4th 479, 504 (Pa.Com. Pl. Oct. 18, 2005), aff’d,
. Plaintiffs attempt to distinguish Barnes v. American Tobacco Company on the grounds that it involved voluntary exposure to tobacco, not involuntary chemical exposure. However, this factual difference does not negate the significance of Barnes with respect to whether a particular monitoring program is appropriate for a given individual. Nevertheless, the Court recognizes that, Barnes notwithstanding, certification still can be appropriate in certain toxic tort cases where the environmental exposure is of limited duration and geography, and a minimum exposure above background levels can be shown for all class members, which exposure carries a significantly increased risk. However, the theories and evidence in this case are not nearly so straightforward or manageable and, hence, make certification entirely too awkward and inappropriate.
. Indeed, given the potential drawbacks, even Dr. Neiman failed to identify a comprehensive medical-monitoring protocol that would apply to all proposed class members. See Neiman Report at 4 (stating that she could not yet provide full description of tests for protocol).
. Plaintiffs argue that Dr. Friedman’s opinion (that individual circumstances matter) itself applies to the entire proposed class, and therefore favors certification. It is unclear why it could be useful to this analysis to state the obvious, i.e., that saying “everyone is unique” is a statement that can and does apply to everyone. In any event, Plaintiffs' is a strained reading of Dr. Friedman’s opinion. Reading Dr. Friedman’s opinion in context, it is clear that it is not "class-wide” inasmuch as he opines that every medical monitoring decision must be made by each patient and his or her physician, based on the individual characteristics and medical history of the patient and not on a perfunctory screening or a Court's endorsement of class-wide MRI screenings. Examining the evidence, the Court agrees.
. By letter to the Court dated August 22, 2008, defense counsel requested that the record be supplemented to include Dr. Neiman's complete deposition testimony, and enclosed a copy. Having reviewed this testimony, the Court determines that it adds nothing new to the Court's analysis on class certification. In the event that Rohm and Haas still wishes to supplement the record with respect to this testimony following the Court’s decision on certification, Rohm and Haas may file a motion to supplement the record, which the Court will consider in due course. See e.g., Order issued August 4, 2008, Docket No. 215 (granting in part and denying in part Rohm and Haas’s Motion to Supplement the Record).
. Although a monitoring scheme can always be altered later, courts addressing class certification in similar contexts have considered contemporaneously whether the proposed medical monitoring scheme is "medically necessary” for everyone in the class. See, e.g., Barnes,
. There is some debate as to whether Rule 23(b)(2) or Rule 23(b)(3) is more strict with respect to class certification. On one hand is the position stated in Barnes, supra, as just expressed in the text. On the other hand, some courts have noted that Rule 23(b)(3) may be more "stringent” than Rule 23(b)(2) because of the predominance requirement. See Plymouth County Nuclear Info. Comm., Inc. v. Boston Edison Co.,
Plaintiffs contend that the Court could allow "opt-outs” here even if it decided to certify the medical monitoring class under Rule 23(b)(2). See 6/13/2008 Hr'g Tr. at 209-10; 6/20/2008 Hr'g Tr. at 44-45; Allison v. Citgo Petroleum Corp.,
. But see Gibbs v. E.I. DuPont De Nemours & Co., Inc.,
. The Northern District of Ohio has noted that federal courts were more willing to certify medical monitoring cases under Rule 23(b)(2) in the 1990's than they are today. See In re Welding Fume Prods. Liab. Litig.,
. The Plaintiffs originally moved for class certification in October 2006, but, as with their medical monitoring claim, substantially revised their proposed Property Class in their Reply Brief.
. The Court notes that if Plaintiffs were to pursue a theory of "past contamination” leading to stigma and lost value, issues such as whether stigma was the result of actual contamination or simply because of publicity would vary from property to property.
. The Court also notes that a class proceeding that only goes forward on the orange plume theory might result in claims preclusion later on, regarding currently existing purple plume theories. This potential could be of grave concern to plaintiffs with purple plume cases, as the Plaintiffs' experts have stated that plaintiffs with property over the purple plume would have a much more direct and much greater amount of contamination on their properly, and may also have contaminated groundwater. See, e.g., 06/20/2008 Hr'gTr. at 113-14.