Rohm & Haas Sideline New Cancer Cluster Suit

     PHILADELPHIA (CN) – The 3rd Circuit issued a new victory for chemical giant Rohm and Haas in the legal battle over an alleged cancer cluster in a tiny village of rural Illinois.
     A state-court judge in May 2011 cleared the Philadelphia-based Dow Chemical subsidiary in the first of roughly 30 cases to go to trial in what’s been called a “mini mass-tort.”
     The plaintiffs in those cases say their wells in the 1,000-person village of McCullom Lake were poisoned by chemicals from the company’s plant, located about a mile upstream. When the contamination seeped into the groundwater, it allegedly ruined their water supply and caused a raft of rare brain cancer.
     The plaintiffs in the federal case, which excludes claims for physical injury, had asked U.S. District Judge Gene Pratter in April 2006 to certify two classes: a medical-monitoring class for villagers allegedly exposed to contamination from the company’s nearby plant, and a class of residents whose property was damaged by the alleged contamination.
     The proposed medical-monitoring class wanted Rohm and Haas to bankroll serial CAT scans or MRIs to help diagnose cancerous tumors that, it claims, could develop from exposure to the chemical vinyl chloride.
     But Pratter determined that the plaintiffs failed to offer common proof that they were exposed to the chemical at an uncommon, disease-causing level.
     Ruling on the plaintiffs’ appeal in a related federal action, a three-judge appellate panel affirmed a lower court’s denial of class certification for claims centered on medical monitoring and property damage for the alleged cancer cluster.
     In a 39-page opinion, Circuit Judge Anthony Scirica said the plaintiffs didn’t even establish a legitimate exposure threshold to determine what level of exposure would constitute such a level.
     In denying certification, Pratter had said that the plaintiffs were invoking a level formulated by the Environmental Protection Agency for mixed populations of adults and children, not for tort liability.
     That level “would not be the threshold for each class member who may be more or less susceptible to diseases from exposure to vinyl chloride,” the panel said Thursday.
     Lack of cohesion was a running theme in the plaintiffs’ case, the 3rd Circuit found, giving credence to Pratter’s decision that individual issues predominate over common issues in the case, and that the evidence plaintiffs wanted to use at trial didn’t adequately typify members of the proposed classes.
     Indeed, one of the plaintiffs’ toxicology experts testified that his exposure calculations were “not meant to predict risk for a single individual under any specific scenario” because of “individual or personal variability,” Scirica noted.
     Pratter had rejected that expert’s risk-analysis, because it merely offered an average exposure rate, not a specific rate of any particular member of the proposed class.
     But the plaintiffs argued on appeal that another report, that of their air-pollution-dispersal expert, detailed average exposure for proposed class members on a case-by-case basis.
     The District Court had taken issue with that report as well, citing several problems: “that … [it] only showed average daily exposure, not minimum exposure, used average exposure over very long periods of time when exposure likely varied, and could not show that every class member was exposed above background [levels],” Scirica summarized.
     Pratter correctly considered these shortcomings in denying certification, the appellate panel found.
     Noting that efforts to use modeling as common proof for certification of proposed class actions “have been met with skepticism,” the panel found that “the evidence here is not ‘common’ because it is not shared by all (possibly even most) individuals in the class. Averages or community-wide estimations would not be probative of any individual’s claim because any one class member may have an exposure level well above or below the average.”
     The panel also found that the modeling on which plaintiffs relied was simply too laden with assumptions.
     “Plaintiffs’ proof would show only the amount that hypothetical residents of the village would have been exposed to under a uniform set of assumptions without accounting for differences in exposure year-by-year or based upon an individual’s characteristics,” the panel found.
     “Plaintiffs propose a single concentration without accounting for the age of the class member being exposed, the length of exposure, other individual factors such as medical history, or showing the exposure was so toxic that such individual factors are irrelevant.”
     “Plaintiffs cannot substitute evidence of exposure of actual class members with evidence of hypothetical, composite persons in order to gain class certification,” the panel found.
     The panel came to a similar conclusion concerning the property-damage class. “Not all claims of property damage based on exposure are alike,” Scirica wrote. “Single instances or simple theories of contamination may be more apt for consolidated proceedings than extensive periods of contamination with multiple sources and various pathways,” as alleged here.
     The panel also declined to certify the plaintiffs as a class on the sole issue of liability, characterizing their claim of sharing “the same nucleus of operative facts” as merely a “bald assertion.”

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