Cook v. Rockwell International Corp.

151 F.R.D. 378, 1993 U.S. Dist. LEXIS 14672, 1993 WL 408301
District Court, D. Colorado·Decided October 8, 1993·No. Civ. A. No. 90-K-181·Published·Cited by 71 cases

Opinion

ORDER REGARDING CLASS CERTIFICATION

KANE, Senior District Judge.

This case is before me on plaintiffs’ motion to certify two classes, a medical monitoring class and a property class pursuant to Fed.R.Civ.P. 23. Certification for the medical monitoring class is sought under Rule 23(b)(2) or, in the alternative, under Rule 23(b)(3). Certification of the property class’ damage claims is requested solely under Rule 23(b)(3).

I. Facts and Procedural Background

On January 30,1990, a number of individuals, Bank Western and the Field Corporation (a subsidiary of Bank Western) (collectively, “plaintiffs”) filed this putative class action. These parties live on or hold an interest in real property located near the Rocky Flats weapons production facility in northwest Denver, Colorado (“Rocky Flats”). Rocky Flats is owned by the U.S. Department of Energy. Defendant, The Dow Chemical Company (“Dow”), operated Rocky Flats from its inception in the early 1950’s to June 30, 1975. Defendant, Rockwell International Corporation (“Rockwell”), operated it from the latter date to December 31, 1989. Dow and Rockwell are collectively referred to as “defendants.”

Class plaintiffs are fourteen individuals and business entities who sue on behalf of and seek certification of two classes, a medical monitoring class and a property class. Plaintiffs allege that during their operation of Rocky Flats, Dow and Rockwell released radioactive and non-radioactive substances into the surrounding area which damaged their property and could have adverse impacts on their health. In their second amended complaint, plaintiffs request class certification and plead claims under Colorado common law, the Price Anderson Act (which incorporates common law), 42 U.S.C. §§ 2014(hh), 2210, and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9607. Their identical common law and Price Anderson claims sound in negligence, strict liability, private nuisance, and outrageous conduct. They seek damages on these claims for property and other economic harm, mental and emotional distress and medical monitoring, plus exemplary damages. They request response costs under CERC-LA.

II. Certification of the Medical Monitoring Class and Property Class

A. General Principles

In determining whether the plaintiffs’ cause of action is suitable for determination on a classwide basis, the provisions of Rule 23 must be followed. McCarthy v. Kleindienst, 741 F.2d 1406, 1412 n. 6 (D.C.Cir.1984). Whether a class may be certified is in the discretion of the court. Gulf Oil Co. v. Bernard, 452 U.S. 89, 100, 101 S.Ct. 2193, [381]*3812200, 68 L.Ed.2d 693 (1981). “[A]n inquiry into the merits of the claims of the representative or the class is inappropriate when making the decision whether the action should be certified under Rule 23.” 7A Charles A. Wright et al., Federal Practice and Procedure § 1759 at 99 (1986); see also Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S.Ct. 2140, 2152-53, 40 L.Ed.2d 732 (1970); Redditt v. Mississippi Extended Care Centers, Inc., 718 F.2d 1381, 1387-88 (5th Cir.1983); Joseph v. General Motors Corp., 109 F.R.D. 635, 637 (D.Colo.1986). A court is obliged to determine only whether the requirements of Rule 23 have been satisfied. See Kahan v. Rosenstiel, 424 F.2d 161, 169 (3d Cir.), cert. denied, 398 U.S. 950, 90 S.Ct. 1870, 26 L.Ed.2d 290 (1970). On the other hand, in determining whether the requirements of Rule 23 have been met, it is often necessary to analyze the substantive claims and defenses of the parties and the essential elements of those claims and defenses. See Hurwitz v. R.B. Jones Corp., 76 F.R.D. 149, 157 (W.D.Mo.1977). However, there is a distinction between identifying the issues that the case will present for purposes of determining whether the requirements of Rule 23 have been met and deciding those issues on the merits. See id.

“A court has broad discretion in deciding whether to allow the maintenance of a class action.” 7B Wright, supra § 1785 at 119; see also Weiss v. York Hosp., 745 F.2d 786, 808 (3d Cir.1984), cert. denied, 470 U.S. 1060, 105 S.Ct. 1777, 84 L.Ed.2d 836 (1985). Certification is not irreversible and may be altered or amended as the case progresses towards resolution on the merits. Fed.R.Civ.P. 23(c)(1), 23(c)(4)(B); Joseph, 109 F.R.D. at 638; see also 7B Wright, supra § 1785 at 128. This power to change the class certification decision has encouraged many courts to be quite liberal in certifying a class when that decision is made at an early stage, noting that the action always can be decertified or the class description altered if later events suggest that it is appropriate to do so. Esplin v. Hirschi, 402 F.2d 94, 99 (10th Cir.1968), cert. denied 394 U.S. 928, 89 S. Ct. 1194, 22 L.Ed.2d 459 (1969); see also 7B Wright, supra § 1785 at 131.

The party invoking Rule 23 has the burden of showing that all of the prerequisites to utilizing the class action procedure have been satisfied. Taylor v. Safeway Stores, Inc., 524 F.2d 263, 270 (10th Cir.1975); Spivak v. Petro-Lewis Corp., 120 F.R.D. 693, 695 (D.Colo.1987); 7A Wright, supra, § 1759 at 102. In order for this action to be maintained as a class action, plaintiffs must first establish that the four requirements of Fed.R.Civ.P. 23(a) are satisfied. These requirements are: (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. These requirements are often referred to as numerosity, commonality, typicality, and adequacy of representation.

Second, plaintiffs must establish that the case fits within one of the three subcategories of Rule 23(b). In the present case, plaintiffs seek certification for a medical monitoring class under Rule 23(b)(2) or, in the alternative, under Rule 23(b)(3) and certification for a property class under Rule 23(b)(3).

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Cook v. Rockwell International Corp., 151 F.R.D. 378, 1993 U.S. Dist. LEXIS 14672, 1993 WL 408301 (D. Colo. 1993).

151 F.R.D. 378 (Cook v. Rockwell International Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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