October 8, 2009
Toxic Tort Damages Class Action Certified Based on Aggregate Proof
In Shar v. Raytheon, ---- F.R.D. ---, 2009 WL 3193152, M.D.Fla. 2009 (Sept. 30, 2009), the Middle District of Florida District Court approved a toxic tort class action arising out of the contamination of groundwater near a Raytheon plant in St. Petersburg, Florida.
The biggest obstacle to class certification was the predominance requirement. For a money damages class action to be certified, the plaitniff class representative must show that class issues predominate over individual issues. Here the defendant argued that individual issues predominated - particularly with respect to properly devaluation due to the contamination. The District Cout heard expert testimony about the ability of the experts to create a model to do what they call a "mass appraisal." From reading the opinion, it seems to me that the fact that the local county appraiser uses a similar model was critical to the court's decision.
The court refused to hold a Daubert hearing prior to certification, raising questions that are addressed in an excellent recent article by Richard Nagareda about the relationship between class certification, the merits and aggregate proof. See Nagareda, Class Certification in the Age of Aggregate Proof, on SSRN.
(hat tip BNA Class Action Reporter)
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