Reilly v. Gould, Inc.Reilly v. Gould, Inc.
MEMORANDUM AND ORDER
Presently before the Court are the motions of the defendant, Gould Electronic, Inc. (hereinafter “Gould”), to dismiss the class action allegations and to dismiss other substantive counts of the complaint pursuant to
FACTUAL AND PROCEDURAL HISTORY
Factual Background
This case is one of the many cases originating from the operations of the Marjol Battery Plant. From approximately 1962 to 1980, the Marjol Battery Company (hereinaf
As a result of the business activities at the site, the site became contaminated with lead and other hazardous materials. The leakage, seepage, runoff, emission and/or erosion of these materials had contaminated the surrounding air and groundwater, as well as the soil of the neighboring residences. In accordance with state and federal environmental departments and their policies, the site and surrounding areas has undergone and is still undergoing clean up measures in order to remedy the hazardous condition.
The plaintiffs in this action, who are present or former residents of the Borough of Throop, initiated this complaint in the Court of Common Pleas of Lackawanna County for the Commonwealth of Pennsylvania, on the basis of strict liability, general common law claims and state and federal environmental statutory law. They are seeking injunctive relief (in the form of constructive trusts for medical monitoring damages and clean up costs), monetary relief (for past clean up costs and future damages for medical monitoring, compensatory and exemplary damages and fees) and class certification pursuant to
Gould moves this Court to dismiss paragraph two (2) of the Prayer for relief, Count II alleging strict liability for ultrahazardous activity, Count III alleging strict liability for abnormally dangerous activity, Count V, alleging public nuisance and paragraph 62(g) of the complaint, alleging that Gould’s conduct constitutes negligence per se.
In regards to the class action allegations, the putative class contains three classes, primarily defined by the type of damage alleged to have been suffered. The class is bound by a geographical delineation. 1 The classes are defined as follows:
Class one: residential property damage class: These class members have suffered damage to property which is located within the class area.
Class two: medical monitoring class: These class members include:
(A) Children less than thirteen (13) years old as of the date of the filing of the complaint who have either lived within the class area for at least one year or been a regular visitor (spending at least five (5) hours per week in the aggregate on a regular basis) within the class area, over the course of at least one (1) year;
(B) Women presently less than forty-six (46) years old who have lived or been a regular visitor within the class area for at least one (1) year since January 1, 1962, when they were children, and the offspring of these women; and
(C) Women presently of childbearing age (ages 13 through 45 as of the date of the complaint) who presently live within the class area.
Class three: personal injury class: These class members are persons who have either lived within the class area for at least one (1) year or been a regular visitor (spending at least five (5) hours per week in the aggregate on a regular basis) within the class area, over the course of at least one (1) year and who have suffered deleterious health effects as a result of excess exposure to lead and other hazardous materials.
(Doc. 1, pp. 2-3, ¶¶ 3-5; pp. 15-22, ¶¶ 49-59). Counsel for plaintiffs state that they do not know the exact size of the class, but believe that the number is in excess of 1,000 persons.
DISCUSSION 2
Standard of Review
In deciding a motion to dismiss, all material allegations must be accepted as trae and construed in a light most favorable to the non-moving party.
Truhe v. Rupell,
Plaintiffs believe that class certification should not be determined via a motion to dismiss, claiming that “
“A class is not maintainable as a class action by virtue of its designation as such in the pleadings.”
In Re American Medical Systems, Inc.,
I. SUBSTANTIVE ALLEGATIONS OF THE PLAINTIFFS’ COMPLAINT
Gould contends that the plaintiffs have failed to state a claim upon which relief may be granted within Counts II, III, VI and within paragraph 62(g) of the complaint, all of which raise a claim under strict liability for ultrahazardous activity, strict liability for abnormally dangerous activity, public nuisance and negligence per se respectively. We partly agree.
As previously stated, this action is but one of many which were spawned by the operations of the site. Numerous actions have been initiated, many of which allege the same type of harm through the same type of claims. 3 In Beam, we held that the plaintiffs had failed to state a claim for strict liability for ultrahazardous and abnormally dangerous activities, as Pennsylvania courts do not recognize that the operation of a battery crushing plant is an ultrahazardous or abnormally dangerous activity. Likewise, in Ambrogi et. al. v. Gould Inc. civil action number 3:cv-88-1205 (M.D.Pa.), we granted Gould’s similar motion to dismiss the plaintiffs’ ultra-hazardous and abnormally dangerous activity claims.
In the interest of promoting “evenhanded, predictable, and consistent development of legal principles”,
Payne v. Tennessee,
II. CLASS ACTION ALLEGATIONS
Within their complaint, the named plaintiffs allege a class of over one thousand parties. Counsel for Gould contends that this action should not proceed as a class action as certain prerequisites have not been met and, therefore, the plaintiffs class allegations should be dismissed.
A
We state at the onset that the party seeking certification has the burden of showing that all of the requirements of
Fed.R.Civ.P. 23(a) states in relevant part: One or more members of a class may sue ... on behalf of all only if(l) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims ... of the representative parties are typical of the claims ... of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
These four (4) mandatory requirements of impraetieality, commonality, typicality and representativeness must be met in order for a class action to proceed. If but one of these
This class action also presents the issue of sub-classes, for there are three (3) classes alleged in this action, each claiming a specific damage. While these are subclasses, it is common sense that all three classes must also meet the requirements of Riile 23(a) and (b)
Retired Chicago Police Association v. City of Chicago,
In addition to these required elements, a proposed class must be able to meet one of the three (3) requirements of
It is also equally important to state that even before
In
Daigle,
the court exercised its discretion and declined to certify a class for personal injury and property damage said to have been caused by the defendants’ clean up activity at a toxic waste disposal pond. The
Daigle
court held that there was no definable class, as the class was defined by geographical boundaries and not by the actions of the defendants. This case before us now is distinguishable from the
Daigle
case, for the putative class here is identified by the actions of the site. The boundaries merely establish and limit the class members; the class itself, however, is “defined by the activities of the defendants,”
Daigle,
This class action can be summed up in two words: discretion and disparity. Discretion, for it is within our province to certify the class,
Neal,
However, if this class were certified, the location of the site (being uphill) and factors such as water migration, wind and run off could create the difficulty of ascertaining members of the class.
See e.g. Brown v. Southeastern Pennsylvania Transportation Authority,
2. Commonality
“
“In mass tort actions, the requirement of common questions has been satisfied by a showing of commonality either as to liability! ... or as to the cause or impact of the tortious action.”
In re Asbestos School Litigation,
The Third Circuit has recently commented that cases in which it had stated that the commonality requirement has a low threshold are factually different from mass tort cases. This is due to the fact that the prior rulings dealt with situations in which there were “fewer individualized questions.”
6
Georgine v. Amchem Products, Inc.,
Even in light of this, commonality does not exist here. True, all plaintiffs are said to have been exposed to lead emission from the site, but whether and to what extent the emissions are said to have affected each class member is not common to all involved. Furthermore, assuming arguendo that the plaintiffs possess common claims which contain common issues of law or fact, such issues are altered or changed by the individual facts and situation of each plaintiff. This destroys anything common to the class.
3. Typicality
“Typicality entails an inquiry into whether the named plaintiffs individual circumstances are markedly different or the legal theory upon which the claims are based differs from that upon which the claims of other class members will perforce be based.”
Hassine v. Jeffes,
The named class representatives, Georgette Cerra Reilly, acting individually and on behalf of her minor child Gerald Reilly III, and Diane O’Keefe, acting individually and on behalf of her minor children Danielle Hutchins and Estavon Hutchins, purport to represent over 2,000 potential claimants. As pled within the complaint, all five (5) representatives are said to be members of Class II, the medical monitoring class, and all but Gerald Reilly, 111, are members of Class III, the personal injury class. (Doc. 1. pp. 3-4, ¶¶ 7-8). Furthermore, Georgette Reilly and Diane O’Keefe purport to represent the members of Class I, residential property damage class.
In an effort to analyze the factual differences among the plaintiffs, counsel for Gould compiled a database of past and present plaintiffs who have either settled claims with or have claims currently pending against Gould. Not only is this database highly impressive, but it also is an invaluable document in our determining class certification. The database lists past and present plaintiffs, and sets forth their current and past addresses, the total amount of time spent in Throop by each person, how far their residence is from the site, whether the property was remediated (and if so, in what year), and the level reading of lead in the soil. This database also indicates the gender, age and blood and bone lead levels of the person. (Doe. 31).
(a) residential property damage representatives
Class discovery reveals that Georgette Reilly’s Throop residence was six blocks, or 1,200 feet, from the site, (Doe. 30, Exh. C, p. 3; Doc. 31, p. 67) 8 , and that, in 1988, her residence had a lead soil reading of zero parts per million (hereinafter “ppm”). (Doc. 31, p. 67). No permission was ever given to test her residence for either interior lead readings or for lead soil testing. (Doc. 30, Exh. B, p. 54). 9 Diane O’Keefe’s Throop residence is located 600 feet from the site and in 1988, that residence had a lead soil reading of seven-hundred and seventy (770) ppm. (Doc. 31, p. 58).
A random sampling of residents taken from the database reveals that other mem
(b) Personal Injury Representatives
In regards to Class II, the personal injury class, it is necessary to educate oneself on the types of deleterious health effects attributable to lead exposure. In support of class certification, plaintiffs’ counsel submits the report of Dr. John Rosen, (Doc. 28, Exh. C), head of the Division of Environmental Sciences at Montefiore Hospital in New York, where the primary focus is on clinical research in childhood lead poisoning. (Id. at p. 1).
Dr. Rosen states in his report that a database exists which provides “a direct link between low level lead exposure in young children and deficits in neurobehavioral-cognitive performance manifested later in childhood through adolescence.” (Id. at p. 4). Additionally, any IQ deficits said to have been incurred because of lead poisoning “have been found to be irreversible.” (Id. at 5). Advisory groups and federal agencies “have [therefore] redefined lead poisoning as a [blood lead level] equal or greater than 10 ug/dl [micrograms of lead per deciliter of blood].” (Id.). Dr. Rosen also indicates that an affected child could suffer from loss of IQ points or deficits in comprehension, attention, motor skills, vocabulary and language development, as well as abstract thinking, daily living skills and/or math, reading and writing performance.
In adults, typical symptoms of lead toxicity include hypertension, headaches, behavior changes, irritability, depression, apathy, ánorexia, peripheral polyneuritis 10 affecting sensory and motor nerves, kidney disease or malfunction, anemia and demyelination 11 . (Id. at 10). In male adults, excessive blood exposure at levels equal to or greater that 40 ug/dL could lead to reproductive incompetence, asthenospermia, and sperm count suppression. (Id.).
Child representatives Danielle Hutchins and Estavon Hutchins claim to have tendencies attributable to deficit disorder. (Doc. 30, Exh. C, p. 32). However, such tendencies were not clinically diagnosed, and there is “nothing official” which, leads Diane O’Keefe to believe that her children actually suffer from attention deficit disorder. (Id. at pp. 32-3). Danielle Hutchins has made the hon- or roll system in high school, after having been placed in remedial courses in grade school. (Id.) Physically, her health is in good condition. (Id. at p. 28). Estavon Hutchins has been enrolled in remedial courses during her matriculation. (Id. at p. 29). In regards to Gerald Reilly, III, class discovery yields that he was born with malrotation of the intestines, a blockage of the intestines. (Doc. 30, Exh. B, p. 39). This problem was remedied by surgery, (Id.), and no physician had advised the family that this problem was attributable to lead exposure. (Id. at 41). He has never resided in Throop, (Doc. 30, Exh. B, p. 39), but occasionally visits “maybe twice a week” relatives who presently reside in Throop. (Id at 41).
Georgette Cerra Reilly testified at her deposition that she suffers from anemia,
(Id.
at 48), and has no heart or lung problems of which she is aware.
(Id.
at 49). She does state, however, that she suffers from back pain and a sore ankle, (Doc. 30, Exh. B, p. 55), but that no physician has told her that
Diane O’Keefe is in good health, except for arthritis, which she treats with aspirin. (Doc. 30, Exh. C, p. 38). She further states that she “has no idea” whether she has any medical symptoms or ailments attributable to lead exposure. (Id. at 40).
Although typicality measures the sufficiency of the named plaintiff, it does not require that “all putative class members share identical claims.”
Baby Neal for and by Kanter v. Casey,
We find that typicality is lacking in this case. Although the named representatives purport to have the same type of claims as the other class members, it is evident that the factual disparity among the plaintiffs’ claims defeats typicality. This case presents a hodge-podge of factually and legally different issues dispersed among different plaintiffs.
See Georgine v. Amchem Products, Inc.,
4. Representativeness
In order for representativeness to exist, courts must determine “that the putative named plaintiff has the ability and the incentive to represent the claims of the class vigorously, that he or she has obtained adequate counsel, and that there is no conflict between the individual’s claims and those asserted on behalf of the class,”
Hassine v. Jeffes,
Because there is no typicality, we conclude that representativeness is also lacking in this matter. Representativeness is not appropriate where the named plaintiffs have different claims and/or circumstances than other members, thereby creating the possibility of a less than vigorous advancement of the case for all plaintiffs involved.
Following the reasoning of the
Georgine
court, while all members of Class III bring a claim for medical monitoring damages, not all may succeed on that claim. While the named representatives may succeed, other members may not, and vice versa.
12
Furthermore, some members of the property damage class may or may not have had their residences remediated. Such facts create the appearance of internal class strife. Therefore, “[i]t is simply impossible to say that the legal theories of named plaintiffs are not in conflict with those of the absentees, or that the named plaintiffs have incentives that align with those of absent class members.”
Georgine,
Gould also contends that a conflict is present among the plaintiffs’ counsel, since most of the counsel who represent the plaintiffs in this matter have also represented other Throop plaintiffs in prior actions against Gould for the same claims. While we recognize that there have been disputes among plaintiffs’ counsel in the past, see Ray Flanagan,
Lead Contamination Suit Settlement Spawns Lawyers Feud,
THE SUNDAY TIMES, July 7, 1996 at p. Bl, we are also of the opinion that this issue would not have created an insurmountable problem had this class been certified.
13
Additionally, we
B.
1.
As previously stated, in addition to all the requirements of
In regards to
2.
We touch briefly on
3.
Counsel for plaintiffs state that mass tort actions are amenable to class action. While this is true in certain circumstances, it is also true that the plaintiffs’ claims in such actions could vary among themselves due to individual facts which control or affect each plaintiff. The Advisory Committee Note to the 1966 revision of
In
Sterling v. Velsicol Chemical Corp.,
[T]he problem of individualization of issues is often cited as a justification for denying class action treatment in mass tort accidents. While some courts have adopted this justification in refusing to verify such accidents as class actions, numerous other courts have recognized the increasingly insistent need for a more efficient method of disposing of a large number of lawsuits arising out of a single disaster or a single course of conduct. In mass tort accidents, the factual and legal issues of a defendant’s liability do not differ dramatically from one plaintiff to the next____ Consequently, the mere fact that questions peculiar to each individual member of the class remain after the common questions of the defendant’s liability have been resolved does not dictate the conclusion that a class action is impermissible____ In complex, mass, toxic tort accidents, where no one set of operative facts establishes liability, no single proximate cause equally applies to each potential class member and each defendant, and individual issues outnumber common issues, the district court should properly question the appropriateness of a class action for resolving controversy. However, where the defendant’s liability can be determined on a class-wide basis because the cause of the disaster is a single course of conduct which is identical for each of the plaintiffs, a class action may be the best suited vehicle to resolve such a controversy.
Sterling,
The facts of the Sterling case are distinguishable from ours. Although the plaintiffs in Sterling had lived in the vicinity of the landfill and suffered damages due to the landfill operations, the court noted that “[t]he single major issue distinguishing the class members is the nature and amount of damages ... each sustained.” Id. at 1197. In this case, it is the presence of additional individualized factors affecting individual plaintiffs which wreaks havoc on the notion that all plaintiffs’ injuries have been caused solely by the defendant’s actions. The Sterling court also questioned the appropriateness of a class action in such a situation, and with this we agree.
This Court has followed such reasoning when faced with putative classes in mass tort actions. In
In Re Three Mile Island Litigation,
Additionally, in Kuhn, the court declined to certify the class due to the fact that there would be “a plethora of other individual factors which would have to be considered.” Id. at 7-8. We agree with Judge Rambo in her well reasoned analysis. Although there is one common fact among the plaintiffs— that there was widespread lead exposure due to the operations of the site — there is “a plethora of other individual facts which affect each of the plaintiffs’ claims.” Such facts, in turn, could cast doubt on the issue of proof or causation.
Although • it is well established' that the Marjol Battery Plant dealt primarily in the reclamation of lead from spent batteries and that the manner in which this was achieved may have caused the release of lead into the environment, it has also been pointed out by defendant’s counsel that there are other prevalent sources of lead emission. The Centers for Disease Control reports that “[m]any factors can affect the absorption, distribution, and toxicity of lead.” William Roper, PREVENTING LEAD POISONING IN YOUNG CHILDREN: A STATEMENT BY THE CENTERS FOR DISEASE CONTROL, U.S. Department of Health and Human Services (1991) at 11 (hereinafter “CDC report”). (Doc. 30, Exh. L, p. 11). To support its contention that individual facts predominate over facts common to the entire class, Gould submits to the Court this CDC report which sets forth the various ways individuals are exposed to lead, and how such exposure varies from person to person.
(a) lead based paint
The CDC report states that lead based paint is a major source of high-dose lead poisoning, and despite the fact that the Consumer Products Safety Commission began to limit the lead content of residential paint in 1978, many houses still contain lead-based paint. 15 (Id. at 12). Lead based paint was widely used from the 1940s until the 1970s, has been associated with blood lead in children, and can be ingested via dust or paint chips contaminated with lead from paint which has been disturbed due to home renovation. (Id. at 18). Because of this, the Centers for Disease Control states that children living in homes undergoing renovation “are at particular risk for lead poisoning.” Id. A 1989 report to Congress indicates that there are an estimated 42 million dwelling units in the United States which contain leaded paint at levels exceeding the prior CDC threshold exposure of .07 mg Pb/cm. Mushak and Crocetti, DETERMINATION OF NUMBERS OF LEAD-EXPOSED AMERICAN CHILDREN AS A FUNCTION OF LEAD SOURCE: INTEGRATED SUMMARY OF A REPORT TO THE U.S. CONGRESS ON CHILDHOOD LEAD POISONING (1989) at 214. (Doe. 30, Exh. M p. 4).
Gould’s database reveals that most of the plaintiffs’ homes are older structures, many of which may not have been renovated. The CDC report indicates that homes built before or around 1960 are of greatest concern. (Doc. 30, Exh. N, p. 40). Gould states that from information already available, it has been able to identify 41 homes which are located within the class boundary and were built before 1960. (Doc. 29, p. 58).
(b) lead based gasoline
It has also been established that lead emission has occurred in large amounts via leaded gasoline. From the 1920s to the 1980s, lead was used as an additive to gasoline. Committee on Measuring Lead in Critical Populations, MEASURING LEAD EXPOSURE IN INFANTS, CHILDREN, AND OTHER SENSITIVE POPULATIONS (1993) at 118. (Doe. 30, Exh. M, p. 118) “Environmental lead contamination from combustion of leaded gasoline has been widely documented in the United States ... and there is much evidence that it had added substantially to the body lead burdens of affected human populations.”
Id.
Once the Environmental
While this report indicates that lead exposure does occur at the work environment and that some of the most common work environments where this occurs are the storage of batteries and the business of both wet and dry primary batteries, Id. at 22, we cannot ignore the fact that such circumstances play an important role in the issue of causation and the extent of liability. The possibility that some class members could have been exposed to lead from other origins results in the need for an individual and highly factually intensive analysis of all plaintiffs involved in this action.
(c)individual tolerance to lead absorption
In an unrelated matter, Dr. Rosen testified that a rule of thumb has evolved concerning susceptibility to lead exposure. That rule is that “the younger the child, the more susceptible and that the general range of the most susceptible children to toxic effects of lead is roughly 15 to 48 months of age.” (Doc. 30, Exh. Z, p. 2). The CDC report also indicates that children have a higher lead absorption rate than adults, (Doc. 30, Exh. O, p. 11), and even among children, those between the ages of six to seventy-two months who are exposed to deteriorated buildings are in a higher priority group than other children. (Id. at 40).
In regards to adults, Dr. Rosen states that females of child-bearing age should be cautioned concerning the risk of becoming pregnant, (Doc. 30.Exh. V, p. 1), and that adult males are at an increased risk for hypertension during middle age adult life. (Id.). Females in their adult years have a higher risk of re-distributing lead to other organs if they develop osteoporosis. (Id.). While female children are more susceptible to exposure in their postnatal years, male children are more susceptible to prenatal affects of lead. (Doc. 30, Exh. W, p. 1).
In another unrelated matter, Dr. Rosen also testified that the effect that lead has on a child not only is dependent on the age at the time of ingestion, but also is dependent on the amount of lead ingested and the duration of ingestion. (Doc. 30, Exh. Z, pp. 1-2).
While such statistics indicate that the class members may be susceptible to lead exposure, the extent and tolerance of such exposure will vary, depending upon the age and sex of the party. This is another reason why all the plaintiffs’ claims must be addressed individually.
(d)house remediation
Another factor which dictates an individual factual analysis of the plaintiffs’ claims is house remediation. Pursuant to the Consent Order entered into by Gould and the United States Environment of Protection Agency, certain homes were remediated. Such remediation entailed the removal and replacement of top soil, shrubs, grass, trees and bushes, as well as house cleaning and carpet replacement. (Doc. 29, p. 23). Gould indicates that 84 homes were remediated within the proposed class area and within 1,200 feet of the site. (Id. at 23-4). While three (3) out of ten (10) residences within a three hundred feet distance were remediated, 24.5% of the residences within one thousand feet of the site were not remediated. (Id. at 24).
The above mentioned reports indicate that the presence of lead in soil and the household affects the extent of lead ingestion. Once again, since the presence of lead in some residences had been reduced due to the remediation process, this fact will play a role in determining the amount and length of exposure for the class members who reside in remediated residences.
(e)blood and bone lead levels
Class discovery reveals that the blood and bone lead levels for class members vary depending upon the distance. from the site. However, there is no set correlation between a high lead level and proximity to the site, due to fact that certain residences are upwind and uphill from the site. For example, while one male resident who lived 3,500 feet
The above disparate facts indicate that we cannot apply a blanket analysis to all class members. Gould’s counsel properly argues that “[t]he preceding analysis demonstrates that the Marjol impact must be analyzed property by property and individual by individual. Generalizations concerning a uniform effect from lead exposure are not appropriate.” (Id. at 31).
The fact that such other factors must be taken under consideration, precludes certification.
See Commonwealth of Puerto Rico v. M/V Emily S,
We also note that because of the potential inability to manage the class, and because each plaintiffs claim must be given individual attention, class status is not the superior method of litigation.
See e.g. In Re American Medical Systems, Inc.,
4. Other Pertinent Factors
(a) prior litigation
“Under
While our comment on other individual actions could be taken as an argument for class certification, it must be noted that it is not the quantity, but rather the nature of the actions which leads us to conclude that this action is not suitable for class treatment. And the nature of those cases and the claims therein warrant an individual analysis of the plaintiffs involved in order to assure that all plaintiffs’ claims are given appropriate attention.
(b) manageability of the class
The manageability consideration of
We are also concerned with the manner in which the class has been presented to the Court. While the proposed structure of the three classes may at first glance seem logical, a more in depth analysis reveals that the class definitions may be tenuous. For example, the fact that the plaintiffs include in their classes all regular visitors who have spent at least five (5) hours per week in the aggregate on a regular basis, the possibility of any large number of such visitors, and the regulation of them within the class, could pose a significant problem in class management.
CONCLUSION
Based upon the foregoing, we shall grant in part Gould’s motion to dismiss the class action allegations and to dismiss other substantive counts of the complaint pursuant to
ORDER
AND NOW, THIS 28TH DAY OF MAY, 1997, IT IS HEREBY ORDERED THAT:
1. Gould’s motion to dismiss the class action allegations and to dismiss other substantive counts of the complaint pursuant to
(a) Said motion is GRANTED IN PART as it pertains to Count II and III and the plaintiffs’ class action allegations. The plaintiffs’ claims for strict liability for ultrahazardous activity and for abnormally dangerous activity are dismissed. The plaintiffs’ claim for class action treatment is dismissed.
(b) Said motion is DENIED IN PART as it pertains to Count VI and paragraph 62(g) of the complaint.
(c) Paragraph 2 of the plaintiffs prayer for relief is dismissed.
2. By this memorandum and order, we have determined that the putative class has failed to meet the basic prerequisites of
3. By this memorandum and order, we have also determined that the plaintiffs have failed to state a claim based upon strict liability for ultrahazardous activity and abnormally dangerous activity and that the plaintiffs have stated a claim for public nuisance and have plead negligence per se at paragraph 62(g) of the complaint in such a manner which places defendants on notice of such a claim.
4. Gould’s motion to declare moot, or in the alternative, motion to strike, plaintiffs motion and memorandum for class determination, or, in the alternative, motion for stay (Doc. 18) is GRANTED.
6. The CLERK of COURT is DIRECTED to MARK the DOCKET SHEET accordingly.
. On February 7, 1996, the plaintiffs filed a motion and memorandum for class action determination pursuant to Local
Notes
. The class area is geographically defined as follows:
The class area is bounded by a line starting at the intersection of the Lackawanna River and the northern boundary of the Borough of Throop, extending south along the Lackawanna River to Boulevard Avenue, continuing south to Pancoast Street, following Pancoast Street to Jones Street, going North on Jones Street and continuing to Oleckna Street, following Sanderson Street east to George Street, following George Street north to Center Street, foEowing Center Street east to Loftus Street, foEowing Loftus Street north and continuing north to the boundary of the Borough of Throop, and foEowing the Borough boundary north and west to the Lackawanna River.
. Indeed, the complaints of the three (3) most recent actions which have been filed, Beam. et. al. v. Gould Electronics, Inc., civil action number 3:cv-96-0101 (M.D.Pa.), Aria. et. al. v. Gould Electronics, Inc., civil action number 3:cv-95-2801 (M.D.Pa.), and Reilly, et. al. v. Gould Electronics, Inc., civil action number 3:cv-95-1525 (M.D.Pa.) are verbatim, raising the same claims within the same count, to the extent of the class action allegations in the Reilly complaint.
.
An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
(1)the prosecution of separate actions by or against individual members of the class would create a risk of:
(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the opposing class, or
(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect these interests; or
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) the court finds 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 is superior to other available methods for the fair and efficient adjudication of the controversy____
. At the time of filing the complaint, the class size was estimated at over 1,000 members of the class. In their discovery reports, plaintiffs’ counsel re-estimated the amount of class members to be approximately 2,000. (Doc. 28, p. 2). This estimate was derived from a demographic analysis of the proposed class area, as well as the 1990 census report. Plaintiffs’ expert, Dr. Andrew Verzilli, reported that there were 1,901 persons living within the class area in 1990 (Doc. 28, Exh. A, p. 2). This number was then adjusted to 2,000 in order to compensate for the visitors to the class area. (Id.).
. These cases dealt with classes for injunctive relief,
Baby Neal for and by Kanter v. Casey,
.On November 1, 1996, the United States Supreme Court granted
certiorari
in the
Georgine
case to discuss the specific issue of whether a trial court, in certifying a class for settlement purposes, must find that all of the elements or
. Although Georgette Reilly no longer resides in Throop she is a property owner in Throop, having bought her house from her mother in 1994. (Doc. 30, Exh. B, pp. 2-3).
. This may account for the lead soil reading on zero ppm.
. Peripheral polyneuritis is the simultaneous inflammation of a large number of the spinal nerves, marked by pain, paralysis and wasting of muscles. STEDMAN’S MEDICAL DICTIONARY (5th Ed.).
. Demylelization is the destruction or loss of mylein (the protective plasma membrane)' which envelopes the axon or nerve cell. Id.
. We decline comment on whether each plaintiff may succeed on the merits of their claim, for it is not within our province to do so at this juncture.
. We have been, and continue to be, impressed with the professional performance of all counsel involved in the Gould actions. While we have
. We feel the need to address
. Even Dr. Rosen, the plaintiffs’ expert, had testified in a prior unrelated action that lead found in housing is an overwhelming source of childhood lead poisoning. (Doc. 30, Exh. O).
. We have, of course, fully considered the arguments in all the plaintiffs' motions and supporting memoranda.