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EE ARR26- 1176 (0 JACK W. INTHE LEACH, CIRCUIT etal, COURT OF WOOD COUNTY, WEST VIRGINIA Plaintiffs, w. aEn.dLLDUUBPEOCNKTPDUEBLNIECMSOEURS AND COMPANY CIVIL ACTION No. o1.c- 60g dt Serge W RVICE DISTRICH o. Th) Defendants. | ORDER ON CLASS CERTIFICATION AND RELATED MoTIONS 1 I. SUMMARY OF RULINGS This mater came befor the Court on the following Morons ofthe pares 1) Plainiffs' MMoetriioonn SoerekCliansgsRCeelriteifFicraotmionO;r2d)erDeSfeetnidnagntClEa.1s.sdCuePrtoinfticdaetiNoenm(o"uDrusPoanntd'sRCeolmpiaenfyM'os (*Dupont's") Plains' Motion for Judgment on the Pleadings Against DuPory, of the partis during a hearing on all ofthese Motions tion"), and 3) Based upon the oral argument 55 27 considerationofallof the flingsofthe parties on each on of March 22. 2002 long with caret these fssues, including all submi 2 ZC fdavis the Court hereby ules as Cetifiction and hereby CERTIFIES follows: his ase 1) to the Court GRANTS Plant Motion proceed as lass scion an behaolf For ted Class = 5 1 persons whase drinking wate is or has been contaminated ith (Aa) "C87 attributable 10 releases from DuPont's Washin ammonium fa class ofall Perfluorooctanoate Class) with respect 0 al issues relating for cauitable, injunctive, and declarato 1 Defendants' gton underlying Works plant tiability and (hereinafier "the Plaintiffs" claims ssc involving any determination ofirnydireildieufa,linhcalrudmionfgtsheilCtlyasfmorepmbuernseanddatmhaegeasm;oaulnltdaofmaangye hpueniWteivsetdVaimraggiensaaRrulheesroefbyCiSvTilAPYrEocDedaunrde;R2E)StEhRe VCoEuDrtfoDrElNaIteErSlgDaitpioonn,c'psurRseulainetffMootRule 20f 3) the Court DENIES undisputed procedural Plainiffs Motion For backround, undisputed Judgment on the findings of uct, a Pleadings Against ion; DuPont. and The supporting each ofthese rulings is summarized below, nd thCe oursconclusionsofaw, ConA ND CB 742, rE 000064 APR 10 2002 iis II. UNDISPUTED PROCE RAL BACKGROUND - Plaintiffs' filed their Amended Complaint ' against DuPont and Defendant Lubeck Public Service District ("LPSD") in Kanawha County Circuit Court on August 30, 2001. In their Amended Complaint, Plaintiffs allege that the Defendants are responsible for contamination of Plaintiffs" drinking water and assert claims against Defendants based upon common law torts and violation of `West Virginia's consumer protection statutes for which Plaintiffs claim they are entitled to various forms of relief, including medical monitoring, punitive damages, compensatory damages, and equitablefinjunctivereliefto abate the water contamination. (See Amended Complaint.) Plaintiffs also request in the Amended Complaint that the Court enter an order "that this is an appropriate action to be prosecuted as a class action pursuant to Rule 23 and finding that Plaintiffs and their counsel are appropriate representatives and appropriate counsel for the Class and that this action shall proceed as a class action on all common issuesof law and fact." (/d., at 18.) On October 1, 2001, DuPont filed a Motion to Dismiss Counts I, II, II, VI, and VII of Plaintiffs' Amended Complaint for failure to state a claim upon whichrelief can be granted under Civil Rule 12(b)(6). DuPont also filed on that same day a separate Motion to Dismiss Plaintiffs' Amended Complaint for improper venue, pursuant to Civil Rule 12(b)(3). The LPSD also filed on October 1,2001, a Motion to Dismiss Plaintiffs" Amended Complaint on various grounds, pursuant 10 Rule 12(b)(6). including the specific argument that Plaintiffs allegedly had failed to state a claim upon which this case could proceed as a class action under Rule 23. On October 15, 2001, DuPont filed a Motion seeking aprotective order to stay all discovery in response to the First Set of Requests for Production of Documents that Plaintiffs had served on DuPont and the LPSD when the Amended Complaint was filed. The LPSD joined DuPont's:request for a stayofall discovery in a filing dated October 30. 2001. followed by the filing of its own Motionfor a protectiveorder on November 16, 2001. Plaintiffs not only filed memoranda opposing simply tPolacionrtirfefcst' afitlyepdoagrnaAphmiecnaldeedrroCrominpltaheinntaomne the of same day Defendant of their original Complaint E.1. duPont de Nemours and Company. . 2 000065 the Defendants' requests for protective ordersto stay discovery, but also filed on November 26, 2001, their own Motion seeking an order compelling both Defendants to move forward with their discovery obligations. During a hearing on November 28, 2001, Judge Bloom of the Kanawha County Circuit Court granted Defendants' request to transfer this case to Wood County, but did not address anyofthe other pending Motions. Judge Bloom's ruling was eventually memorialized in an Order entered December 14, 2001, and the case was then transferred to this Court. Soon thereafter, the LPSD filed on December 21, 2001, another Motion to Dismiss this case, this time asserting several additional arguments. On Friday, January 11, 2002. after the briefing on all of the then-pending Motions was complete, this Court senat letter to counsel announcing its rulings on eaofcthohse Motions. In that letter, the Court stated thatithad denied allof the Defendants' Motions to Dismiss and Motions for Protective Orders, and thatthe Court had granted Plaintiffs" Motion to Compel discovery responses. On January 14, 2002, DuPont filed another Motion to Stay the case. this time arguing that the entire: case shboesutayledodn primaryjurisdiction grounds or. alternatively, thaacatse management order should be entered requiring Plaintiffs to prove the substantive meritsof theirclaims for medical monitoring reliefbefore any decision is rendered on whether the case can proceed as a class action under Rule 23. During a hearing on February 1, 2002. the Court entered an Order confirming the Court's January 11.2002, rulings. which denied DuPont's Motions to Dismiss, including DuPont's request for dismissalof Counts 11 and VI. Afier DuPont failed to file any additional answer to Counts II or VI of the Amended Complaint within ten days after that ruling, Plaintiffs filed a Motion for Judgment on the Pleadings against DuPont on both Counts If and VI, arguing that DuPont had not complied with Rule 12(a)(3)(A)of the West Virginia RulesofCivil Procedure. During the hearing on February 1. 2002.the Court denied DuPont's request tostaythis case on primaryjurisdiction grounds and denied DuPont'srequest that the Court issue anorder requiring Plaintiffs to prove the substantive meritsoftheir medical monitoring claims before considering whether the case can proceed as a class action under Rule 23. The Court's rulings were memorialized in an Order dated February 27. 2002. The Court specifically rejected DuPont's 3 000066 arguments as "frivolous" andheldthat Plaintiffs are not requtioprreovde the meritsof their claims before the Court can consider class cerification issues. In response to Plaintiffs' request for the prompt scheduling oaf hearing to resolve class certification issues, the Court rejected DuPont's arguments that no such hearing should be held until after DuPont had been given more time to depose each of the Plaintiffs and to prepare experts witnesses. It was noted that, although the case had been pending for over five months, DuPont had not undertaken the discovery that it claimed it needed, nor were any expert opinions necessary to resolve class certification issues. The Court stated that class certification issues could be resolved on the affidavitsofthe partes without the need for any expert opinions or live testimony from any witness, and instructed Plaintiffs to serve affidavits from eachofthe Plaintiffs by no later than February 8, 2002. Plaintiffs served theiraffidavits on Defendanotns Februar8y,2002. Although Plaintiffs had agreed to make the named Plaintiffs available for depositions before the class certification hearing, pursuant to notices served by DuPont on February 26, 2002, DuPont voluntarily cancelled those depositions afterPlaintiffserved their responses to DuPont's interrogatories and document requests on class certification issues on March 11, 2002. Plaintiffs filed their formal Motion for Class Cenification, with 2 supporting Memorandum ofLaw, on March 13, 2002. Later in the day on March 13,2002, DuPont filed its Relief Motion in which it argued that Plaintiffs had not yet served a formal Motion for Class Certification, mandating deferral of the class certification hearing. Plaintiffs filed a Memorandum in Opposition to that Motion on March 15. 2002, pointing out that the formal MotionFor Class Certification had, in fact, been fled. On March 20,2002, DuPont fled 2 Response in Opposition to Plaintiffs' Motion for Class Certification, which was supported by an atached Affidavoift amedical doctor, Dr. PhilipS. Guzelian. The LPSDdid notfile any documents Opposing orjoining anyof the pending Motions. The Court heard oral argument of all the parties on eachof the pending Motions during a hearing on March 22, 2002. 4 000067 III. FINDIOFNFGACST Plaintiffs submitted to the Court a lengthy statement of facts. Neither DuPont nor LPSD submitted any statement of factsfor the Court to consider. The Court, therefore, finds the following facts in support of its rulings on the Motions at issue: `This case involves claims arising from the alleged contaminationof human drinking water supplies with, among other things,' a chemical known as ammonium perfluorooctanoate (a/k/a APFO/PFOA/ FC-143/C-8) (Chemical Abstract Services # 3825-26-1) (hereinafter "C-8). C-8 is achemical DuPont has used at its Washington Works facility in Wood County, West Virginia (the "Washington Works") since approximately 1951. Historically. DuPont purchased C- from the Minnesota Mining and Manufacturing Company ("3M") for use as a raw material in its various fluoropolymer production processes, including the manufactureofTeflon. C-8-containing wastes from the Washington Works have been discharged into the air, the Ohio River, various landfills,and soils and groundwater at the Washington Works. Although C-8isidentified and regulated asa toxic or hazardous substance in a number of ther jurisdictions, none of the environmental discharge permits ever issued to DuPont for its Washington Works by any Federal or State agency have ever contained any limits on DuPont's releasesofC-8 into the environment. Consequently, DuPont has released C-8 into the environment from its Washington Works since the carly 1950s without any governmentalpermitlimitsorrestrictoifoannsy kind. Alt3\h fannoounucedginMhay of2000 thas it would stop making C-8 after internal studies raised increasing concerns about the biopersistance' and toxoifthcecihemticayl. DuPont continues 10 use C-8 and recently announced that it would begin to make its own C-8 at a DuPont plant in North Carolina. the wateDrissucpopvleyr.y Aiststtihlilsotni-mgeo,iPnlgaiwnititfhfsreasspkeecdt tfoorthceerntiaftiucraetioofntohnelyothweirthchreesmpieccatlstotthhaetirmaclyaibmesin involving C-8 water contamination. in the boDduyPoanntd hisassldeofwitnoedbe"pmeertsaisbtoelnitz"eidn otrhieslicmoinntaetxtedasfrroefmertrhiengbotdoy.t"he fact that C-8 "remains 5 000068 ConcemsregathertodxiciityonfCg-8 had surfaced within DuPont's own employees as early as 1954. In response to such concerns, DuPont began ts own internal investigation into the toxicity OfC-8 that confirmed by at least 1961 that C-8 was toxic in animals and caused observable changes in certain organ functions, resulting in an internal warning being issued by DuPont's Toxicology SectionChiefthat the chemical "be handled with extreme care." 3M also pursued its own internal studies and confirmed by 1978 that C-8 was being detected in the blood of 3M's "potentially exposed workers." In response, DuPont authorized an intemal program to monitor the healthof its employees exposed to C-8 at the Washington Works. DuPont was "disturbed" that this new testing revealed that C- might be causing "toxic effects" among some of the Washington Works employees. DuPont decided that this new toxicity information would not, however, be disclosed outside the company except "on a need-to-know basis" and that DuPont would not "be informing the appropriate regulatory agencies of this situation." Bi `After 3M disclosed 1o DuPont the results of additional internal C-8 studies confirming toxicity among rats and monkeys, DuPont's in-house toxicologist recommended even more testing. DuPont also decided that additional, special personal protective equipment needed to be used by DuPont's workers to minimize their exposure to C-8. When the resusof te additional testing were reviewed in 1980, DuPont determined that "C-$ is toxic." "peopleaccumulate C-8," and "continued exposure is not tolerable," prompting DuPont to implement additional medical testing of the `Washington Works employees. including new, special samplingofthe workers" bloodforC-8. 3M also commissioned its own intemal medical monitoring program among its potentially exposed employees, including special x-rays, lung function tests, blood counts, and blood chemistries, etc. designed to test for and assess the extent of C-8 exposure. In response to the mounting intemal toxicity data on C-8, DuPont's own Director of Employee Relations recommendetdo management in 1982 thatall "available practical steps be taken 10 reduce this [C-8] exposure because," among other things, "[a]ll employees, notjust Teflon area workers, are exposed" and "(there is obviously great potential for current or future exposure of `members of the local community from emissions leaving the Plant perimeter." Soon thereafter, 6 000069 DuPont commenced an internal investigation to determine the extent to which C- wasescaping from the Washington Works and getting into community water supplies. In that regard, DuPont began an internal investigation into the extent of human exposure to C-8 from drinking Ohio River water, and collected water samples from several private area taps being supplied by the then- immediately-adjacent Lubeck Public Service District ("LPSD") well field and from the Little Hocking, Ohio water supply located across the Ohio River from the `Washington Works. The samples, which were sent to DuPont's own Experimental Station Lab ("ESL") in Delaware for analysis, confirmed by March, 1984 that C- was present in both the LPSD water supply (ashigh as 1.5 pants per billion ("ppb") and in the Little Hocking water supply (as high as 0.6-0.8 ppb). In response, DuPont prepared internal "standby statements" for its employees to use in case the public found out about the C-8 being detected in the local community water supplies and startedasking questions. Additional internal testing by DuPont confirmed C-8 in the local `community water supply again in 1987. 1988, and in 1989. DuPont assumed that the C-8 being picked up in the water was being caused by leakage from three old, unlined ponds at the Washington Works that DuPont had used for thedisposalof thoouftsonsaofCn-dwasste over the years. In response, DuPont removed thousandsof tons of C-8 wastes from the ponds in 1988, worked out a deal with Defendant LPSD 10 purchase the LPSD well field that was immediately adjacent to the Washington Works at the time for approximately $2 million. and helped facilitate the move of the LPSweDll field to a new location approximately two miles further down the Ohio River. In the meantime, Washington Works employees, after becoming aware that C-8 had been picked up in the local community water supply, asked DuPont's own Haskell Laboratory in 1987 to establish "an acceptable level for C-8 in community drinking water." In April, 1991, DuPont's Washington Works, recognizing that the levelof C-8in local community drinking water at thattime was "around 2.7 ppb" asked DuPont's Haskell Lab to specifically "consider the actual health effects to residents adjacent to our Washington Works Plant from exposure to C-8" and asked that the company adopt a "Community Exposure Guideline" (CEG) that is "by definition one that we can 2 000070 expect `lifetime' exposure ofcommunity residents without any expected ill effects." By the summer of 1991, DuPont had agreed to an intemal CEG for C- in water of 1 ppb. Around the same time, DuPont collected additional water samples and confirmed through analysis at its own ESL that, not only was C-8 still present in the original LPSD well field (now as high as 3.9 ppb) but that C-8 also was in drinking water supplied by the new LPSD well field two miles further downriveras high as 2.4 ppb - more than two times higher than the 1 ppb internal safety standard for C-8 in community drinking water that DuPont had just adopted. DuPont again prepared a "Standby Press Release" in case the public found out about the C-8 in the new LPSD wells but apparently never officially released it. Soon after receiving the new LPSD C- results from ESL, DuPont decided to switch to an outside contractor to take all future C-8 water samples for DuPont, and advised the contractor to collect those future samples in glass containers, as opposed to theplastic containers that DuPonthad + been using. In response to a reminder by the contractor that C- has a tendeney to adsorb to glass, which could result in the reportingof "lower concentrations[ofC-] than what may actully exist" inthe water, DuPont, nevertheless, instructed the outside contractor to go ahead with using the glass containers. A comparison of DuPont's own C- sampling results with the new outside contractor's analysisofthe same water indicated lower C- readings using the new contractor and new sampling procedure. DuPont then decided to keep using an outside contractor and kept using that new sampling procedure for the next 10 years. ft was not until August, 2001. after the USEPA and the State of West Virginia's Department of Environmental Protection ("WVDEP") asked DuPont to begin explaining its C-8 sampling procedures. that DuPont switched back to using plastic sampling containers that had a lower potential for adsorbing the C-8. This new sampling methodology is the sampling methodology that was used by DuPont's new contractor - Exygen - lo recently reconfirm the presenceofC-8 in the Little Hocking, Ohio water supply, this time as high as 7.7-37 ppb. In the years since DuPont first discovered the potential toxicity of C-8 and its potential impact on its workers, DuPont has provided special medical testing for employees who DuPont believes to have had the potential for exposure to any C-8 on the job. Such special medical testing s 000071 . programs were provided for DuPont's Washington Works employees beginning as early as 1979, `with the special medical testing being conducted as frequently as on an annual basis. When DuPont began sending its C- wastes from the Washingion Works to DuPont's Chambers Works facility in New Jersey for recovery in 1999, all Chambers Works employees who had "any potential for exposure to C-8" also were provided with special medical testing, including: " automated chemistry profile . . SMA-12 (includes HDL,cholesterol, glucose, uric acid, BUR, calcium, phosphorus, total protein, albumin, bilirubin, alkaline phosphatase, LDH, AST(SGOT), total cholesterol, + ccroemaptlientineebalnododAcLoTunt(.S.G.P.T) . perfluorooctanoic acid (PFOA) in blood. . . . total fluorine in blood." DuPont even agreed to provide the special medical testing to at least one outside contractor whose `employees may have been exposed to C-8 at the `Washington Works. DuPont also has provided its employees with potential exposure to C- at the workplace with special personal protective equipment, such as gloves, special apparel, and breathing equipment, to try to protect them from exposure to C-8 handled on the job. DuPonteven originally planned to acknowledge ts responsibility to provide special medical testing t0 all members of the local community outside the Washington Works who may have been exposed to drinking water contaminated with any amountof C-8 as recently as the fall of 2000. when DuPont believed thatthe public would be finding out about the C-8 contamination in theirdrinking water. [twas at that time that plaintiffs' counsel in a case styled Tennant v. EI duPont de Nemours & Co. Inc., Case No. CA-6:99-048 (S.D. W. Va. ), disclosed to DuPont that they had discovered DuPont's C-8 contamination and began making public filings in court about the problem. DuPont's `public relations officials andattorneys coordinatedwith the LPSD and its attorninetyhse co-drafting ofan October 31, 2000, letter to be sent on the LPSD's letterhead to alol f the LPSD's customers to disclose the existenceof the C-8 in the water, while simultaneously assuring everyone that the water was safe. DuPont's public relations staff also drafied another set of approved "standby questionsand answers," for its employees to use in responding to any inquiries from the public about the C-8 problem. One of the anticipated questions was: "DuPont monitors employees" blood for 000072 PFOA [C-8]. Will DuPont test citizens' blood?" DuPont's "standby" response to the community was: `pYreasc,tiacsesr;eqthuaetstise,dcbolylercetsiiodnenattsoonfetlhoecaLtPioSnDaanrdeau,seuosfitngheestsaabmleishleadb used for analysisof employees' samples. `Atthe time DuPont prepared this response acknowledging its agreement to provide testing for those who may have been exposed to C-8 in their drinking water, DuPont was claiming that levelsofC- inthe LPSD water system were as low as 0.1 ppb - below the 1 ppb CEG that DuPont has internally adopted and reaffirmed as recently as Novemberof 2001, as the "safe level" for C-8 in community drinking water. DuPontalso has acknowledged that "DuPont Washington Works responsible for the presence of PFOA [C-8] in the [LPSD] wells." Asoftoday's date, there are thousandsofindividuals who have been exposed to drinking water contaminated with C- from DuPont's Washington Works. Asindicated above, C-8 hasbeen detected and confirmed to be present in at least the water supplied by both the LPSD, which : currently serves several thousand customers. and in the Little Hocking, Ohio water supply, which currently serves over 12,000 customers. DuPont's own records indicate that C-8 was first detected in these public water supplies by at least 1954, indicating that potentially there are thousands of additional former customers of the LPSD and the Little Hocking. Ohio water supply that also were exposed to C-8 in their drinking water. Based upon the documents produced to date by DuPont. "high C-8" levels also have been confirmed in at least ane private residential water well adjacent to the Washington Works, and C- has been confirmed in the water supplyof the General Electric Plastics plant adjacent to the Washington Works. C-8 also has been present for years in the water supplyofthe Washington Works iself, which employs "approximately 2.500 persons." The levels of C-8 in the Washington Works drinking water have been as high as at least 3.3 ppb. Under a November, 2001 Consent Order entered between DuPont and the State of West Virginia(the "Consent Order"), DuPontis working with WVDEPand the West Virginia Deparment of Health and Human Resources to determine whether additional water supplies have been contaminated with C-8. These efforts confirmed as recently as March 2. 2002. that C-8 now also 10 000073 has been detected in the water supplies for Belpre, Ohio, which serves "about 7,000 people," and in the Tuppers Plains - Chester Water District in Ohio. WVDEP already confirmed, as recently as January 15, 2002, that the levels of C-8 in the human drinking water supplies "presented possible `health risks to the public" and that such C-8 "has been linked to possible health problems related to long-term exposure." During the March 22, 2002, hearing, counsel for Plaintiffs submitted to the Court a copy of a Consent Order entered between DuPont and the United States Environmental Protection Agency (Regions 3 and 5) on March 7, 2002. Under the Consent Order, DuPont has agreed to provide "a temporary altemate drinking water supply for users of any private drinking water well and PWS [public water system] in West Virginia or Ohio where such [validated sampling] results show the level of C-8 exceeds 14 [ppb)." There is no requirement in the Consent Order that the impacted water supplies be used for any particular length of time, that any specified quantities of such water first be consumed. or that the precise geographic boundaries of the potentially-impacted water supplies be determined before DuPont is required to provide the alternate drinking water under the Consent Order. The Amended Complaint and the undisputed Affidavitsof the Plaintiffs establish that each ofthe named Plaintiffs are individuals sho are using or have used one or more ofthe water supplies identified above that are or have been contaminated with C-8. These individuals include persons who currently own real property with the contaminated drinking water. IV. CONCLUSIONS OF LAW A. Plaintiffs' Motion For Class Certification is Granted. It is well-settled in West Virginia that, as long as the prerequisites to class certification set forth in Rule 23 are met, a case should be allowed to proceed onbehalfof the class proposed by a plaintiff. See W. Va. R. Civ. P. 23; Mitchem v. Melton, 167 W. Va. 21,277 S.E. 2d 895, 899 (1981) ("If the requirementsof Rule 23 are met, then the Class should be allowed."); Evans v. Huntington Pub. Co., 163 W. Va. 222, 283 S.E. 2d 854, 855 (1981). Under Rule 23, the only prerequisites to certifying a case to proceed on behaolffa class are: (1) that the class is so numerous that joinder of " 000072 all members is impractical (the "numerosity" requirement);(2)that there are questionsof law or fact common to the class (the "commonality" requirement); (3) that the claims or defenses of the represented parties are typical of those of the class (the "typicality" requirement); (4) that the represented parties will fairly and adequately protect the interestof the class (the "adequacy" requirement); and that at least one of the three potential bases for seeking class relief set forth in Rule 23(b) exists. See W. Va. R. Civ. 23(a), (b). Ifappropriate, the Court may allow the action to be brought or maintained as a class action with respect to only particular issues or may allow the class to be divided into subclasses. /d. at Rule 23(c)(4). In this regard, the Court has the discretion to enter whatever order it feels will best provide for the orderly conduct and managementof issues. to be handled in a class action proceeding under Rule 23, including entryof an order reserving any "unmanageable" issues for litigation at a later time. See W. Va. R. Civ. P. 16, 23(d); Gasperoni v. Metabolife Int I, Inc., 2000 WL 33365948, slip. op. at *4 (E.D. Mich. Sept. 27, 2000) (citing /n re + Diet Drugs Prod. Liab. Litig., 2000 WL 1222042 (E.D. Pa. Aug. 28,2000). Although the Court is required to perform a "rigorous analysis" in determining whether the prerequisitesto classcertification exist under Rule23, sce, .g.,General Tel. Co. v. Falcon, 457U.S. 147, 160 (1982). the Court also recognizes that "(t]he recent trend in class certification decisions is to interpret Rule 23 flexibly and give it a liberal construction." Black v. Rhone-Poulenc, Inc., 173 FR.D. 156.169 (S.D. W.Va. 1996). Inperforming sucharigorousanalaycosurtishsou,ld not focus on whether a plaintiff will prevail on the actual merits ofany substantive aspect ofthe plaintiff's claims, but should focus, instead, only on whether the procedural requirementsofRule 23 are met, See Eisen v. Carlisle andJacequelin, 417 U.S.156, 177 (1974) ("nothing in either the language or history of Rule 23... gives a court any authority to conduct a preliminary inquiry into the merits of asuit in order to determine whether it may be maintained as aclass action"); Burks v. Wymer, 172 W.Va. 478, 486, 307 S.E. 2d 647, 653 (1983). Allowing any inquiry into the merits of any ofthe plaintiff's substantive claims durinag Rule 23 class certification inquiry would effectively deprive the plaintiffof the right to trial by jury on the claims. See Guar. Ins. Agency Co. v. Mid- Continental Realty Corp., 57 F.R.D. 555, 564 (D.C. IL. 1972). This point was confirmed by this i'? 000075 Courtin ts February 27, 2002, Order. Moreover, the West Virginia Supreme Court of Appeals has recognized "as have other state courts, that the failure to permit the maintenance ofa class action by atrial court can have grave procedural consequences to the parties who are denied class participation asifa finaljudgment has been rendered against them on the merits." Mitchem, 277 S.E. 2d at 901. `Thus, any question as to whether the case should proceed as a class in a doubtful case should be resolved in faofvalloowirngclasscertification. See, e.g. Esplin. Hirschi 402 F.2d 94, 101 (10th Cir. 1968), cert. denied, 394 U.S. 928 (1969)("[t]he inteorfejsustticse require thatin a doubtful case +. any error,if there is to be one, should be committed in faofvalloowirng the class action."); Gasperoni, slip. op. at *3. 1. Certification of the Class is appropriate under Rule 23(a), a. The proposed Class satisfies the "numerosity" requirement of Rule 23(a)(1) The proposed Class, which includes the thousands of individuals whose drinking water has been contaminated with C-, satisfies the "numerosity" requirementof Rule 23(a)(1). Contrary to DuPont's arguments, it is well-settled that Plaintiffs are not required to establish the exact number ofindividuals falling within the definitionof the proposed Class, as long as there is adequate evidence that the number ofpotential class members is "large" enough to make joinder of all the potential class members impractical. See. .g.. Olden v. LaFarge Corp. Case No. 99-10176-BC, slip. op., at 23 (ED. Mich. Oct. 24. 2001) (citing n re Cons. Power Co. Secur. Litig., 105 F.RD.583, 601 (E.D. Mich. 1985) ("Where the exact sizeofthe class in unknown, but general knowledge and common sense indicate that i is large. the numerosity requirement is satisfied." Orantes-Hernandevz. Smith, 541 F. Supp. 351.370 (C.D. Cal. 1982))) Although courts generally have found the "numerosity" requirement satisfied when the proposed class consistsofas few as 40 or more members," it is commonly accepted that a proposed class consisting of thousands of members is more than sufficient to satisfy the "numerosity" requirementof Rule 23(a)(1). See, e.2., State ex rel Millevr. Sencindiver, 170 W. Va. 288, 294 S.E.24 90. 95 (1982) (numerosity satisfied See, eg, Robidoux v. Celani, 987 F.2d 931,936 (2nd Cir. 1993). 5 000078 . J with allegations of 1,135 class members); Mitchem, 277 $.E. 24 at 902 (numerosity satisfied with several thousand membersof a proposed classofprisoners). In this case, it is undisputed that there are many thousands of potential Class members, rendering it impractical tojoinalthe class members. As described in the undisputed facts set forth in Plaintiffs' Motion for Class Certification, C-8 is currently present in at least the water supplied by the LPSD, the Little Hocking Water Association, the City of Belpre, and the Tuppers PlainsChester Water District, allofwhich collectively serve thousandsof customers. C- also is present in the drinking water at the Washington Works, which provides water to thousands ofpeople, and inthe drinking water at the adjacent General Electric Plastics plant. Its, therefore, undisputed that there are many thousandsof membersofthe Class proposed by Plaintiffs, which is more than sufficient to satisfy the "numerosity" requiorfReulem23e(an)(1t). Inaddition, DuPont'sagreement under its recent Consent Order with the USEPA to provide alternate water to a class ofall users of any private drinking water well or public water system anywhere in Ohio or West Virginia where C8 levels are abaocevrtaein level undermines DuPont's argument that it is impossible to deal with a class that is not limited by precise geographic limits, durationoftimeof exposure, o quantity of water consumed. b. The proposed Class satisfies the "commonality" requirement of Rule 23(a)(2 "The "commonality" requirementof Rule 23(x)(2) also is satisfied with respect to the Class proposed by Plaintiffs. All that i necessary to satisfy the "commonality" requirement is that "there are questionsof law or fact common to the class." W. Va. Civ. P. 23(@)(2). "(T]he existence of significant common, legal, or factual issues is enough to satisfy Rule 23(a)2)'s threshold commonality requirement." Boggs v. Divested Atomic Corp., 141 F.R.D. 58, 64 (S.D. Ohio 1991). "A common nucleusof operative fact is usually enough to satisfy the commonality requirement." Rosario. Livaditis, 963 F.2d 1013, 1017-18 (7th Cir. 1992). See also In re School Asbestos Litig.. 789 F.2d 996, 1010 (th Cir. 1986) (the "threshold of commonality is not hight); Jenkins Raymark Indus., Inc. 782 F.2d 468, 472 (Sth Cir. 1986) ("threshold of `commonality' is not high. it "requires only that resolution ofcommon questions affect all or a substantial number of the class 14 000077 members"). "Not every issue in the case must be common to all class members." O'Connor v, BoeingNorth Amer. Inc., 184 F.R.D.at311,329 (C.D. Cal. 1998). "The simple question is whether there are issues commotno all class members." Yslavav. Hughes Aircraft & Co., 845 F. Supp. 705, 712 (D. Ark. 1993). In this case, DuPont previously argued to this Court that there are certain key, underlying `common issues relating to the "potential toxicity and environmental impact of [C-8] ... and the potential exposure of nearby residents to C-8" that are so pervasive and fundamental to resolution of all of the claims of all ofthe parties in this case that the entire case should be stayed until there has been a "resolution" of such common issues by State administrative agencies. (See DuPont's Memorandum of Law in Support of Motion to Stay or, Alternatively, for `Entryof Case Management Order Phasing Discovery, at 1-20.) According to DuPont, all of the claims on behaoflalfl of the Plaintiffs in this case are nothing more than a single, common "toxic tort" claim that when reduced "to its essence,.. . is a `medical monitoring" case. .. of a purported class allegedly exposed to a substance." (DuPont's MemoraonfdLauwimn Response to PlaintiffsMotionto Compel Discovery from Defendants, at 1.) According to DuPont, common issues of "risk of human health and the environment from C-8 exposures or releases" are "central to this lawsuit" and "resolution of the technical issues associated with exposure 10 and releasesof C-8" and all "other such technical and complex issues raised by Plaintiffs' Complaint" are common. fundamental underlying issues affecting resolutionof all claimsof Plaintiffs and each ofthe proposed Class members. (Ud. a3, 7,and 13) DuPont specifically argued that at least the following commonissues affect all of the claims ofall Plaintiffs and each proposed Class member in this case: 1) "whethear particular chemical [C- 8] posesa risk to human health, andif so. at what doses and through what routes of exposure (e.g. ingestion, inhalation, or dermal contact)": 2) "whether a particular chemical (C-8] has the propensity to accumulate and persist in human populations and the environment": and 3) "whether a particular chemical [C-8] has been released into the environment at sufficiently high concentrations so as to cause human populations distances away to be exposed above-risk incurring levels." (/d., at 15.) 5 000078 According to DuPont, the jury will have to resolve each of these common issues in order to determine whether anyof the Plaintiffs or proposed Class members are entitled to "compensatory damages, medical monitoring, and injunctive relief." (Jd) The LPSD has never objected to or in any way disagreed with any of DuPont's arguments in this regard. After Plaintiffs filed their Motion For Class Certification, DuPont arguedthatthe complexity of various individualized issues involving the individual Class members' medical histories, the individual Class members' lifestyles, individual exposures, and other individualized issues of potential exposure and damages overshadowed all other potentially common issues in this case. precluding any findingofcommonality, even though DuPont does not dispute that such common . issuesexist. In supportof thisargument, DuPont subtmheiAfftidatviteofDdr.Philip S. Guzelian , a purported medical monitoring "expert" who commented on the nature of the various individualized issues that may arise in this case, particularly with respect to the issue of whether + `medical monitoring is appropriate for the Class. DuPont did not, however, explain why its previous arguments that common issues relating 10 the toxicity of C-8 predominated in this case were no longer accurate or should now be ignored. Upon careful consideration of DuPont's arguments and the information submitted through the Affidavitof Dr. Guzelian, the Court is not persuaded that any such individualized issues overshadow the common issues previously identified by DuPont for the Court or that the potential individual differences among the Class members preclude a finding of commonality in this case. After al. the commonality requirement of Rule 23(a)(2) does not require that the common issues "predominate" - only that they exist. DuPont does not dispute that fundamental common issues exist. The finding ofcommonality in this case is well-supported in the case law. In cases like this involving claims arising from a chemical release, commonality is readily found, particularly where `medical monitoring claims are involved. Sec, e.g., O'Connor, 184 F-R.D. at 331 (commonality #that therIenaadrdeimtiaonny, acoremvmioenw oifsstuheesoclfailmaws soertffaocrtthatinisPsluaeinitniftfhsi'sAcmaseen.d(eSdeeCoPlmapilntaiifnfst'cAomnefinrdmesd Complaint, at 49.) 16 000079 exists where key issues relating to defendant's liability and whether the alleged release of chemical placed the medical monitoring class at a potentially increased risk of health problems). See also Foust. Southeastern Penn. Transp. Auth.,756 A.24112,120-121 (Pa. Commu. Ct. 2000)("While individual issues may arise, including length and extentof exposure, age, gender, medical history, family history, lifestyle, preexisting conditions, intervening factors and the like, these items will be addressed whenand ifa medical monitoring program is created. Thus, in lightof the liberal atitude afforded the grant of class action status, we must affirm the trial courts decision" to certify the class); Gasperoni, slip. op., at 120-121; In re Asbestos School Litig.,104 F.R.D. at 422; In re ThreeMile Island Litig., 87 FR.D. 433 (M.D. Pa. 1980); Yslava. 845 F. Supp. at 713 (for medical monitoringclaims, "porfaonexoactfor individual amountof exposure or particular risk level is not necessary. The core issues of liability and exposure are common to all class members. Commonality among the members exists notwithstanding certain factual variations"). The Court agrees with these cases that commonality exists in a case like this given common underlying exposure and liabilityissues,despite potential individualized issues relating to individual damages. The proposed Class satisfies the "typieality"" requirementof Rule 23()3). `The "typicality" requirementof Rule 23(a)(3) also is satisfied in this case. It is well-settled that the requirements of "commonality" and "typicality" under Rule 23(a) tend to merge in most cases, because both requirements serve as merely guideposts for determining whether the maintofeapnartaicunlarcclaess action is economical and whethethre plaintiff's claims and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected. See, e.g. General Telep. Co. v. Falcon. 457 U.S. 147 (1982); Olden, slip. op. at 23 (citing Rutherford v. CityofCleveland, 137 F.3d 905 (6th Cir. 1998)). A plaintiff's claim is sufficiently "typical, regardlessof any factual differences among the class members,ifit "arises from the same event or practice or course of conduct that gives rise to the claims of the class members, andif it is based on the same legal theory." Newberg on Class Actions (3d ed. 1992), 3.15, a 3-78. See also De La Fuente v. Stokely-Van Camp, Inc., T13 F.2d 225, 232 (7h Ci. 1983) (the claimof the named plaintiffand the claimsofthe class at large need only share the "same " 000080 essential characteristics as the claims of the class at large"). In the assessment of whether the "typicality" requirementof Rule 23(ais)sat(is2fie)d, the requirement "shboe luoolsedly construed." Weinberger v. Jackson, 102 F.R.D. 839, 844 (N.D. Cal. 1984). In this case, the claims asserted by the named Plaintiffs are "typical" of the claims of the entire proposed Class. All ofthe named Plaintiffs' claims arise from the same releasesof C-8 into the environment from the Washington Works that give rise to the claim of each of the Class `members, and are all based upon the same tortious conductofthe Defendants that gives rise to the named Plaintiffs' claims. (See Amended Complaint, at 1-102.) Although the damage claims of individual Plaintiffs may vary to some extent in value, the same actions, practices, and course of conduct by the Defendants that caused the water contamination and torts at issue serves as the basis for allof the proposed Class members' claims. This common factual basis for the Class members' claims, based upon the same underlying legal theories and conduct of the Defendants, is more than ~, sufficient to satisfy the "typicality" requirementofRule 23(a)(3). See Olden, slip. op. at 25 (claims are "typical" where plaintiffs allege chemical emissions as basis for claims, even though "putative class members claims may differ in the amount of damages due to each individual"). Thus, the Court rejects DuPont's argument, as again supported by the Affidavit of Dr. Guzelian, that potential individualized issues, particularly with respect to Plaintiffs' claims for medical monitoring, preclude any finding of typicality. 4. The proposed Class satisfies the "adequacy" requirement of Rule 23a). `The "adequacy" of Rule 23(a)(4) requirement is satisfied as long as the proposed class counsel is qualified, experienced, and generally able to conduct the litigation, and the named class representatives' interests are not shown to be antagonistic to the other class members. See. e.g., Gasperoni, slip. op. at *3; O'Connor, 184 F R.D. at 335; Olden, slip. op. at25. As explained below, the proposed Class counsel is sufficiently qualified to conduct the litigation and the interests ofthe `named Class representatives are not antagonistic to the other members of the proposed Class. Inthis case, neither Defendant has challenged or disputed the adequacyofPlaintiffs' counsel It is, therefore, undisputed that Plaintiffs' counsel are adequately qualified, experienced, and 8 000081 ~ generally able to conduct litigation onbehalfof the proposed Class involving class claims related to C-8 contaminationofdrinking water. As indicated in the Affidavits submitted by each of the named Plaintiffs, noneof the named Plainatrieafwfarseofany interests they would have thareainatny way antagonistic to the interests to anyof the other members of the proposed Class. As explained above, the claims of each of the named Plaintiffs, are "typical" of the claims of the Class, the merits of which will be determined through resolution of numerous common issues of law and fact. To the extent that any potential conflict may arise between any individualPlaintiffand any membofetrhe proposed Class, the Court retains the discretion to address such potential conflicts later through creationof subelasses or other appropriate case management tools. See W. Va. R. Civ. P. 16, 23(e)(4), (@), 2. Certificationof the Class is appropriate under Rule 23(b). a. Certification of the Class is appropriate under Rule 23(h)(1)(A). Under Rule 23(b)o(f1th)e West Virginia RuolfeCivsil Procedure, certification ofthis case is appropriate to proceed on behaoflthfe Class if [t]he prosecouftsepiaroatne actions by or against individual membersof the class would createa risk of... [ijnconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class." W. Va. R. Civ. P. 23(b)(1)(A). Courts have, therefore. certified cases to proceed on behalf of a class. seeking both monetary damages and medical monitoring, where it is shown that the pursuitof such claims through separate actions could create a risk of inconsistent or varying adjudications for the individual members of the class that could establish incompatible standardsor conduct for the defendants. See, e.g. Boggs, 141 FR.D. at 67. Other courts have recognized the appropriatenessof certifying a class 10 proceed pursuant to Rule 12(b)(1)(A), atleast with respect to claimsfor medical monitoring relief. See, e.g., Burch v. Amer Home Prod. Carp., Civil Action No. 97-C-204 (1-11), slip. op., at 35-38 (Brooke Cty. W. Va. Cir CtFeb. 11,1999). For example, in the opinion issued by the Circuit CourtofBrooke County. West Virginia, the court noted that 8 000082 [mTe]dhiecailssmuoeniotfodreifnegndfaunntdss'hroeuslpdonbseibtihleistyamfeorfofrineavnecriynmg aen mequboitfeatbhrlee calcatsiso.nsfIofrtmheedpilcaailntmioffnsitaonrdintghteheclpaostsenmtieamlbeexrisstspfroorseicncuotnesissetpeanrtatoer vTahreyiCnoguardtjuFdIiNcaDtSiontshawtitthherepsopteecnttitoalinfdoirviidnucaolnsmisetemntbadeojfurtdhisecactliaossn.s wbootuhldinestthaebldieschisiinocnom(0pactriebalteestthaendfaurndds oafncdoanndyucptafrotritcuhleardepflaeinndtainftfss ethnitsitlloegmiecntantdo thhaevbeenceefrittisfioedf tmheedifucnadl. mSoenvietroarlincgourcltasshseasvebaasdeodptoend ARturlieal23J (Lbe)a(1d)s. PSreoeduIcntsreLTiealbeitlrioyniLcistiPgaactiionng,Sy1s7i2emF.sR,.IDn.c.27A1c,cu2f8i5x ((SS.DD:. OOhhiioo 11999971)):.Boggs. Divesied Atomic Corp., 141 F.R.D. 38,67 TrehqeuirCeomuernttsoisf pReurlseu2a3d(ebd)(1b)y(A)thaerseemecta.seTsheanCdourFtIFNIDNSDSthtahtat tthhee psottaenndtairadlsfoofr icnocnodnuscitstfeonrttahdejdudeifceantdiaonntsswbooutlhdinestthaebldieschisiinocnomtpoactriebaltee trheeqfuuinrde,mtehnetsapfporroepnrtiiattleemmeonntit1o0rtihnegtboebneefiptrsoovfitdheed,faunndd.the particular Burch,slip. op. at 35-36. . In this case, DuPont already has strenuously argued that the existence of more than one proceeding toconsiderthe common factual and legal issues raised in this case "creates a real danger of inconsistent rulings." (DuPont's Memorandum in Support of Motion to Stay or, Altematively, For Entry of Case Management Order Phasing Discovery. at 14) According to DuPont, the simultaneous existence of more than one proceeding in which the common "technical issues" regarding the potential toxicity of C-8 und its effect on human health and the environment are addressed "gives rise 10.a real risk that DuPont could be subjected to inconsistent or even mutually- repugnant determinations." (/d) Thus, DuPont argued to this Court that the claims for which Plaintiffs seek certification under Rule 23 in this case satisfy the conditions for certifying those claims to proceed on behoaflthfe entire Class. pursuant to Rule 23(b)(1 (A). Asoftoday's date. the LPSD has never objected toordisputed DuPont's characterizationof the claimsof the Class in this regard. This case is, therefore, appropriately certified under Rule 23(b)(1)(A) b. Certification of the Class also is appropriate under Rule 23(h)(2), Rule 23(b)(2) expressly provides that certification is appropriate when the "party opposing the class has acted or refuses to act on grounds generally applicable 10 the class, thereby making 0 000083 ~ appropriate final injunctivereliefor corresponding declaratoryreliefwith respect to the class as a whole." W. Va. R. Civ. P. 23(b)(2). The claims seeking equitable, declaratory, or injunctive relief to force a defendant to abate or cease emissions of chemicals being released from a defendant's operations are the typesof claims that are squarely within the boundariesofRule 23(b)(2). See, e.g. Olden, slip. op. at 26 (court certifies claims to proceed under Rule 23(b)(2) where plaintiffs seek injunctive relietof order defendant to cease emissionsof dust from cement plant). In addition, itis `widely-recognized that claims seeking medical monitoringreliefonbehalf of a class are included within the typesofclaims that are essentially injunctive and equitable in nature, thereby also falling within the scopeofappropriate certification under Rule 23(b)(2). See, .g., Gibbs v. E. 1. duPont de Nemour&s Co, Inc., 876 F. Supp. 475,481 (W.D.N.Y. 1995)("A court-administered fund which goes beyond payment of the cost of monitoring an individual plaintiff's health to establish pooled resources for theearly detectionofadvances in treatment ofthe disease is injunctive in nature rather than predominantly money damages'and thereforeis properly certified under Rule 23(b)(2)").* The establishment ofa court-supervised program through which class members can obiain periodic medical examinations in order to promote early detection of physical harm is recognized as a "paradigmatic request for injunctive relief." J re Inter-Op Hip ProsthesisLitig. 2001 WL 1540546, at 18 (N.D. Ohio Aug. 31, 2001), Contrary to DuPont's arguments,certification remains appropriate under Rule 23(b)(2), even if claims for monetary damages are included with the plaintiff's claims for equitable or injunctive relief, as long as the overall nature of the case is predominately one for equitable and injunctive relief. as opposed to one seeking exclusively or predominately money dainages. Sec, c.g. In re School Asbestos Litig., 789 F. 2d at 1008; Day, 851 F. Supp. At $86-87 ("the fact that the Plaintiffs are seeking monetary damages need not disturb our certification under Rule 23(6)(2)"); Yslava, 455 F. Supp. at 713 (court confirmed that certification remains appropriate under Rule 23(b)(2) in case (S.D. OhiSeoea1l9s9o4,)e(.mge,dBiucraclhm.osnliipt.oropi.ngatpr3-o3g3:ramDaiys "v.injNuLnOct,ivIenrce.li8e5fa1sF.reqSuuiprp.ed b8y69R,u8l6e6-87 C23o(rbp).(2)1"5)1; FY.sRla.vDa.,'347885-8F7. (SD.upCpo..at1979035};;OB'oCgognsn,or1,411F84.RF..DR..Da.t a6t7 311; Coovk. Rockwell Inrl 2 000084 where both monetary damages and injunctive relief in the form ofmedical monitoring is sought, as along as the claims for monetaryreliefare not the exclusive or predominate claim); O'Connor, 184 F.RD. at 337 ("Rule 23(b)(2) may include cases secking monetary damages where such relief is `merely incidental to their primary claim for injunctive relief") (citing Probe v. State Teachers' Retirement Sys., 780 F. 24 776, 780 (9* Cir. 1986)); In re Inter-Op Hip Prosthesis Litig., slip. op., at 18 (court certifies case to proceed on behoaf cllafss under Rule 23(b)(2) seeking both damages `and medical monitoring where medical monitoring "is more than tangential and is an appropriate element of the redress awarded to the class as a whole."). This casealso is appropriateforcertification under Rule 23(b)(2).Plaintiffs common claims forequitable, declaratory, and injunctiverelietfo abate and remediate DuPont's C-8 releases into the environment and Defendants" refusal to do so involve claims where the "party opposing the class has actedorrefused 1o act on grounds generally applicable to the class, thereby making appropriate. final injunctiverelief or corresponding declaratory relief with respect to the class as a whole." W. Va. R. Civ. 23()(2). In addition, DuPont has recognized that the law of this State currently authorizes the certification of a class to pursue medical monitoring claims under Rule 23. Moreover, DuPont. has vigorously argued to this Court that, regardless of Plaintiffs' assertion of claims seeking monetary damages, the entire case. when reduced "to its essence.... is a `medical monitoring' case... of apurported class allegedly exposed 10a substance." (DuPont's Memorandum of Law in Response to Plaintiffs' Motion to Compel Discovery from Defendants. at 1.) Thus. DuPont has argued that, regardloeftshse exisotfaenynclcaiemsfor monetary damages in this case, Plaintiffs' claims are predominately claims for equitable and/or injunctive relief. The LPSD has most othIenresstpaotenss?e" tDouaPqounetstsitoante"dHaoswreicsenmteldyicasalNomovneimtboerirn2g0d0i1ffethraetnt in West Virginia from BViarsgeidnioanaWlleoswts:VicrlgaisnsiaacStiuopnrestmaetuCs,oulrutmopf-sAupmpecaalssh rpualiynmgesn.tWsest reaxtphoesrutrhean0rheairmmbfuurlseemleenmtenotfsmaesdaiccaalsemoonfiatcotiroinn,gmeexdpiecnasles, fear of `maonndimtoonriitnogrwihngenevteenstwinhgeins nnootbdeeneefmiecidaltotrbeeatmmeednitcailslayvanielacbelses.ary, 2 000085 never disputed or taken issue with DuPont's position in this regard. Consequently, allofPlaintiffs claimsforrelief, including Plaintiffsclaims for medical monitoring and damages, are appropriately certified under either Rule 23(b)(1)(A) or Rule 23(b)(2). This case also is appropriate for certificationunder Rule 23(h)(3). Plaintiffs' claims also are appropriately certified under Rule 23(b)(3). Under Rule 23(b)(3), 2 case may be certified to proceed onbehalfof a class if tThheeclcaosusrtprfeidndosmitnhaattethoevqeureasntyioqnuseostfiloanws aofrffeaccttincgoomnlmyoinndtiovtihdeuamlemmebmebresrso,f eafnfdictiheanttaacdljausdsicaacttiioonn iosfsutpheericoornttoroovtehresry.avaiTlhabelemamtettehrosdspefrotrintehnetfa1i0r atnhde cfoinntdrionlglsinignctlhuedep:ros(eAc)uttihoen ionrtedreefsetnosfeomfesmebpearrasteofactthieoncsl;as(sB)inthienedxitveindtuaalnldy. angaatiunrsetofmaenmybelirtsigoaftiotnhceonclcaesrsn;in(gC)thetchoendtersoivreerasbiylailtryeaordyucnodemsmierenacbeilditbyy oorf dciofnfciecnulttriaetsinlgiketlhye1l0itbiegaetniconooufnttehreedcilnaitmhes minantahgeepmaertnitcoulfara fcolarsusm;act(iDo)n.the W. Va. R. Civ. P. 23(b)(3). Thus, certification of aclass is appropriate under Rule 23(b)(3), if the ~ Courts persuaded that common issues "predominate" and that handling the claims through a class action is "superior" 10 other potential methodsof adjudicating the claims. In this case, the Court is persuaded that there are common questions of law or fact that predominate over any individual issues that may arise among the Class members. Despite DuPont's recent arguments that certain individualized exposure and damages issues overshadow all other common issues in thiscase relating to the icity andeffeocfCt-3s. the Court agrees with DuPont's carlier argument and the case law cited by Plaintiffs in support that certain allegedly common. underlying issues relating to the potential toxicity of C-8 and its impact on human health and the environment predominate over all other potential issues that may arise in this case. The LPSD has never disputed nor taken any issue with DuPont's arguments in this regard. Evenif DuPont had notalready argued that common issues predominate over individual ones in this case, courts routinely have recognized that tort claims asserted on behalf of a class in connectionwith widespread environmentalcontamination or exposure from a common cause ("mass tort claims") traditionally involvebasic common suesof the defendant's liability and the common 2 0000863 tortious conduct of the defendant that necessarily predominate over any individualized issue of damages that may arise in such cases. For example, in Sterling v. Velsicol Corp., 855 F. 2d 1188, 1197 (6th Cir. 1988), the Sixth Circuit affirmed class certification under Rule 23(b)(3) for plaintiffs who were injured by water contaminated by chemicals released from & chemical company's landfill, stating that: In mass tort accidents, the factual and legal issuesof a defendant's lmiaatbtielirthy doowniontdidviifdfeuraldirzaemdattihceailslsyueforfomdaonmeagpelsaimnatyiftbofe,thtehenseexti.ssNueos may be reserved for individual treatment with the quesotfliiaboilinty tried as a class action. 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 dimopeesrmisnsoitbled.ict.ate. .th[eW]hceorneclutshieondeftehantdan`ta s clliaasbsilitayctciaonn bies dseintgelremcionuerdsoeonfa ccolnadsus-cwtiwdehibcahsiissbiedcenatuiscealthfeorceaaucsheooffathdeisplaasitnetrififssa, aComclraosvserascytion may be the best suited vehicle to resolve such a . See also Gasperoni, slip. op.. at *7 (class certified with respect to claims arising from exposure to diet drugs because common issues relating to liability of defendant and natureof claimed relief, including medical monitoring, predominated over any individual issues between class members): Fslava, $45 F. Supp. at 713 (certifying case involving claims for monetary damages and medical `monitoring "because the class involves questions of law and fact that predominate over any individual issufneresSc"ho)ol; Asbestos Lirig.. 789 F. 2d at 1010(certifying classfor claims related to asbestos damages under Rule 23(b)(3)): O'Connor. 184 F.R.D. at 342 (cenifying class for property damage claims arising from water comamination under Rule 23(b)(3)); Black. 173 F.R.D. at 160; In re Three Mile Island Litig., 87 F.R.D. at 440 (cenifying class for claims relating 10 exposure to nuclear emissions under Rule 23(b)(3) because "common questions or law and fact predominate over questions affecting only individual members. The common issues will relate to defendant's liability"). These courts routinely reject the argument made by DuPont, as supported with the Affidavit of Dr. Guzelian, that mass tort claims necessarily raise too many idiosyncratic variables requiring individualized proof of damages that overwhelm any common issues that otherwise might "predominate." Sec, e.g, Bogosian v. Gulf Oil Corp., 561 F. 2d 434, 456 (3rd Cir. # 000087 1997), cert. denied 434 U.S. 1086 (1978) ("it has been commonly recognized that the necessity for calculation of damages on an individual basis should not preclude class determination when the common issues which determine liability predominate"); In re Inter-Op Hip Prosthesis Litig., sip. op. at 13 ("the Rule [23(b)(3)] states that common issues need only predominate, not outnumber individual issues."); Jn re Diet Drug Litig., slip. op. at41-42; Burch, slip. op. at 41;Olden, slip. op. at 26-27. Prosecution of this case as a class action also is superior to the other available methods for adjudithicscaonttriovenrsgy. As indicated in this Court's Order of Febr2u7,a20r02y, allowing any of the common claims that predominate in this case to be resolved by governmental agencies outside of this action would not be a superior method for adjudicating the claims in this case. More specifically, because Plaintiffs and the Class members are not able to obtain anyrelieffrom any of the State administrative agencies that may become involved in evaluating issues relating to the potential toxicity of C-8 and its impact on human health and the environment. allowing their claims to be resolved outside the contextof this case would not be preferable to allowing the claoifmthse parties to proceed before this Court. (See Order. dated February 27, 2002.) In addition, courts routinely have recognized that allowing common tort claims 10 proceed on behalf oaf class under Rule 23(b)(3) is far superior to requiring allof the individual class `members to pursue their claims through individual ligation, particularly when requests for medical monitoring relief are involved. Sce. e.2. In re Three Mile Island Litig . $7 F.R.D. at 440 (court found certificationofmass tort class seeking damages and medical monitoring arising from release of radioactive emissions 10 be superior formof adjudication under Rule 23(b)(3)); /n re Hip-Op Prosthesis Litig., slip. op. at 16 (court found class action for medical monitoring relief was. "superior" form of adjudication because the "small monetary amount involved for the medical monitoring claim" makes any individual claim for monitoring "prohibitive in the absenceof class treatment")(citing In reDietDrug Litig.. lip. op. at 56) (court found classactionseeking damages and medical monitoring for diet drug exposure to be superior methodofadjudication because "judicial efficiency will be improved through the class mechanism as opposed to re-litigating these # 000088 same issues in a series of individual cases"): Burch, slip. op. at 41 (in mass tort case seeking `monetary damages and medical monitoring, "any difficulties in managing this caseasaclass action palein comparison to the difficulties in individually trying these cases 1,2, oreven several ata time. As noted above, the utilityof Rule23, properly used, in the mass tort context benefits the plaintiffs and the defendants in the form of lower litigation costs and the court system in 2 more efficient use of scarcejudicial resources."). See also O'Connor, 134 F.R D. at 342 (court found classaction under Rule23(b)(3) for water contamination claims to bea superior methodofadjudicationbecauseclasswide litigation of common issues would reduce litigation costs and promote greater efficiency among the class members). In this case, adjudicating the claimsofthe Class through a class action is far superior to the alternacive, which would be litigation of eachof the many thousands of individuals claims through separate litigation, which could overwhelm the courts. This is particularly true in this case, when viewed in conection with the four factors that are "pertinent" to an evaluation as to whetahceasre should proceed as a class under Rule 23(B)(3). First, there is no indication that any individual `membersofthe Class have expressed any interest in individually controlling the prosecution ofany separate actions against either defendant in connection with the matters at issue in this case. See W VaR. Civ. P. 23(b)3)(A). Second, ona closely-related matter, no evidence was submittedofany other litigation concerning any of the matiers at issue in this case that is already commenced by or against any membersof the Class. which could present potential difficulty in allowing this case to proceed on behoaflthfe entire Class. See id. ai Rule 23(b)(3)(B). Third, no evidence has been submittedofany challenge having been raised to date to the desireability of handling the claims of the Class in this forum. In fact, both Defendants strenuously argued for the transferofthese claims. into this particular forum. (See Defendants' Motiontso Dismiss for LackofVenue; W. Va. R. Civ P.23(b)3XC)). Fourth, no evidencehasbeen submittedof anyparticulardifficulties thatarelikely 10'be encountered in the managementofthiscaseasaClass, given that allof the prerequisites to the proper maintenance of the Class are established under Rule 23. See id, at Rule 23(b)3)(D). Consequently, the claims of the Class are appropriate for certification under Rule 23(b)(3). Ed 000089 Because certification is appropriate under Rule 23(b)I1XA), Rule 23(b)(2), and Rule 23(0)(3), the Class is hereby CERTIFIED under Rules 23(b)(1)(A) and 23(5)(2). See, e.g., Yslava, 845 F. Supp. at713 ("when class certification is sought in the alternative under 23(b)(2) and (b)(3), the 23(b)(2) class is preferred")(citing Cook, 151 F.R.D. at 388; Bing v. Roadway Express, Inc., 485 F.2d 441, 447 (5th Cir. 1973)) 3. Allindividual damages issues requiring individualized proof will be reserved for later. As indicated above, all common fact and legal issues relating to the Defendants' underlying lability for all claims in this case, and all fact and legal issues relating to Plaintiffs' claims for equitable, declaratory, and injunctive relief, including medical monitoring, are appropriate for centification under Rule 23. Plaintiffs proposed, however, and neither Defendant disputed that, in order to advance the orderly and efficient resolution of the Class issues and ultimate resolution of this case, matters requiring individualized proof of damages, including each individual class `member's specific personal injuries and/or property damage, should be reserved for litigation after resolutionof the common Class issues, pursuant to Rule 23(e)(4), (d). W. Va. R. Civ. P. 23 (c)(4), (@) ("when appropriate... an action may be brought or maintained as a class action with respect to particular issues"). This Court recognizes that it also has the authority to enter orders to bifuscate the litigation in this matter, pursuant to Rule 16. Consequently this Court CERTIFIES this case to : proceed onbehalfof the Class. pursuant to Rule 23. with respect 0 all underlying liability claims and Plaintiffs claims for equitable. injunctive. and declaratory relief, including medical monitoring and liability for punitive damages, while all matters relating toproof of the amountof any punitive. damages and calculation of individual damages of the individual Class members, including all individual personal injury and property damage are hereby STAYED and RESERVED for litigation after resolution of the Class claims. B. DuP Relio efMon tiot nIs' Denis ed. In its Relief Motion, DuPont argued, in essence, that the Court should delay the class certification hearing because Plaintiffs had not filed any formal written motion setting forth the 27 0000950 factual or legal basis for certificationofthe Class, and because DuPont had not yet had a chance to take the discovery it believed it needed from the named Class representatives. As mentioned above, however, DuPont'sReliefMotion wasfiled the same day Plaintiffs filed their formal written Motion For ClassCertification,along withtheirMemorandum ofLia nSuppw ort. Plaintiffs' Motion papers actually were fled beforeDuPontfiled itsReliefMotion. Inadditioni,tis undisputed that Plaintiffs had agreed to provide the named Plaintiffs for depositions and had provided answers to DuPont's written discovery on class certification issues before the class certification hearing, but DuPont voluntarily cancelled all of those depositions before the hearing. DuPont's Relief Motion is, therefore, baseless, and is hereby DENIED. C. Plaintiffs' Motion For Judgment On The Pleadings Is Denied. In their Motionfor Judgment on the Pleadings Against Dupont, Plaintiffs argued, in essence, that DuPont's failure to specifically deny the allegations set forth in Counts II and VI of Plaintiffs' Amended Complaint within ten days after the Court denied DuPont's Motion to Dismiss those counts was sufficient to support judgement against DuPont on those counts, as a matter of law. Although the Court rejects DuPont's argument that its catchall denial of all allegations not specifically admitted in paragraph 104 of its original Answer is sufficient to constitute a specific denialofthe facts alleged in Counts 11 and VI, the Court is not persuaded that DuPont has actually admitted the key factual allegationsof both Counts If and VI in its pleadings sufficient to support a judgment against DuPont on the pleadings. Plaintiffs' Motion for such a judgment on the pleadings is, therefore, DENIED. D. Pur ofFp indiongss ofFe act. `The Findingsof Fact set forth herein are made for the purpose of resolving the Motions and are not intended to be final and binding or usurp the function of the jury. = 000691 ENTERED this[(fhday il2002. > E=So v7 de George WH,) dge' ` OF PRESENTED BY: psfatric WP.IdONr.TyBEAoRTxJ2O1HW8iNn7SteOr N(W&VHSIBLL#P4L0L9C4) (Ch3a0r4l)e3s4to5n-,78W0V0 25328-2187 ! RECEIVED A COPY OF: (la(nl0; CHPhaeauarltlaheeLsr. LH.DeuirWssokteo,ldlEysJq,.onEes(sqW,.VE(SsBq#S(8WB0V#5S4)B13#04)913) S3Sp0Pi0IlLKmMaaAnnNaCTweHhntOaeMrBAoSul&evBaArdTTELaEstPLLC (Ch3a0r4l)e3st4o0n-,38W0V0 25301 R. Edison Hill (WVSB #1734) HHialrlr,yPeGt.erDseoint,zlCearrp(eWrV,SBBe#e981) No&rtDhEGIaTtZeLEBRu,sPinLeLsCs.Park 500 Tracy Way Charleston, West Virginia 25311-1261 (304) 345-5667 Laurence F. Janssen 6S3T3EPWTeOsEt&5JhOHSNwSeOeNt., SLuLiPte 700 L(2o1s3)An4g3e8l-e9s,40C0A 90071 CounselfoEr. I. du Pont de Nemours and. Company Gerald J. Rapien Robert A. Bilott TAFT. STETTINIU&S HOLLISTER, LLP 1800 Firstar Tower 425 Walnut Street Cincinnati, OH 45202-3957 (C5o1u3n)se3l8f1o-r28P3l8aintiffs . 000092 fad RichardE. Holzapfel. Esq. (WVSB#7723) John R. McGhee Jr.. Esq. (WVSB#5203) Kay CAST&O CHANEY PLLC 1600 Bank One Center Virginia Street East (Ch3a0r4l)e3st4o5n-,89W0V0 25301 Richard A, Hayhurst, Esq. PP.aOk.erBsobxur8e6, WV 26102 (C3o0u4n)se4l2f2o-r14L4u5bgSgTAkTPEuObFliWcESSeTrHviceADistrict `COUNTOYF WOOD, TOW: fie1r. CdAiRCOsoLutErJyOb NWEeS.VC igne oaf.trhk aCreeftcCiooytvoHafot 5 preg n=c CCotSor moellvheevaynof C GeannA y ansTsposS e iru EERE fogo: Gof Coron eid