Enviromental Concerns - Friday, February 6, 2009 15:30 - 0 Comments

Class Status Denied In Suit Against Dupont Over Chemical-Tainted Water

The use of medical monitoring as a remedy for mass exposure to toxic chemicals has suffered a setback in New Jersey. A federal judge in Camden has denied class certification sought in behalf of 15,000 people whose drinking water may have been contaminated by a chemical spilled from DuPont’s Chambers Works in Salem County. The Plaintiffs want DuPont to pay for medical monitoring to provide early warning of health problems caused by perfluorooctanoic acid (PFOA) - used in the manufacture of nonstick cookware, microwave popcorn bags and other products - that seeped into the water of the Penns Grove Water Supply Co.

New Jersey courts have recognized medical monitoring as a remedy for groups of Plaintiffs exposed to dangerous substances. It works unless there are so many significant individual issues that the case would break down into litigation of individual claims, the courts have said. The decision by U.S. District Judge Renee Bumb denying certification was in Rowe v. E.I. du Pont de Nemours and Co. The judge ruled that there were too many variables among the potential class members’ exposure to the chemical or their potential risk of disease. The Plaintiffs’ lawyers had relied on expert opinions that identified risk factors common to the average Plaintiff suffering the average exposure. The judge wrote:

Rather than conducting in-depth research and meaningfully identifying a group of individuals who have actually suffered ’significant exposure,’ Plaintiffs have relied on risk assessments and superficially identified a group of individuals who have potentially suffered a ’significant exposure.’ This is insufficient for purposes of class certification.

The leading New Jersey case on medical monitoring, Ayers v. Jackson Twp., requires judges to demonstrate that the classes are cohesive by showing that all class members can prove the elements of medical monitoring through common evidence. Judge Bumb ruled that the common evidence could prove that PFOA is toxic, the diseases caused by exposure to PFOA are serious and early diagnosis is valuable. But she said common evidence wouldn’t be enough to demonstrate “significant exposure, increased risk of disease, and the need for medical monitoring different than any monitoring than otherwise required.” There were two sets of Plaintiffs in the case, one group seeking monitoring for anyone exposed to the water for a year or more, and one whose members were exposed to the water at any time.

Source: New Jersey Law Journal