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Certification Denied in Glass Manufacturing Pollution Class Action

In a potential sign of increased scrutiny of environmental class actions under recent Supreme Court decisions, a class of property owners and residents near Danville, Kentucky, were denied class certification in a class action suit alleging that a glass manufacturing plant intentionally or negligently released toxic chemicals.  See Modern Holdings, LLC v. Corning, Inc., Civ. No. 13-0405, Memorandum Opinion and Order (E.D. Ky. Mar. 29, 2018).  The plaintiffs claimed personal injuries and property damage from the plant’s alleged illegal dumping of hazardous chemicals in nearby fields, streams, and properties.

The court rejected the class certification, citing the Supreme Court’s decision in Wal-Mart v. Dukes, 564 U.S. 338, 349 (2011), which raised the bar for class action pleadings under Rule 23 by holding that plaintiffs had failed to meet the rule’s “rigorous” commonality standard.  In Modern Holdings, the court held that plaintiffs presented too many hazardous substances and too many potential injuries to “generate common answers apt to drive the resolution of the litigation.”  The court also held that plaintiffs did not meet Rule 23’s typicality standard — requiring that representative plaintiffs’ claims be typical of those in the class — because the various issues raised by each plaintiff “present too many individualized issues.”  Lastly, the court also rejected the named plaintiffs’ contention that a class certification would adequately protect the interests of the class and noted that these plaintiffs suffered from only three of the twenty-six diseases listed in the complaint.  It was therefore likely, according to the court, that the interests of unnamed members might not be represented.

The plaintiffs are expected to appeal the class certification denial to the Sixth Circuit.