In re Three Mile Island Litigation

95 F.R.D. 164, 35 Fed. R. Serv. 2d 638, 19 ERC (BNA) 1574, 1982 U.S. Dist. LEXIS 14191
CourtDistrict Court, M.D. Pennsylvania
DecidedAugust 17, 1982
DocketCiv. A. Nos. 81-0405, 81-0417
StatusPublished
Cited by9 cases

This text of 95 F.R.D. 164 (In re Three Mile Island Litigation) is published on Counsel Stack Legal Research, covering District Court, M.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Three Mile Island Litigation, 95 F.R.D. 164, 35 Fed. R. Serv. 2d 638, 19 ERC (BNA) 1574, 1982 U.S. Dist. LEXIS 14191 (M.D. Pa. 1982).

Opinion

MEMORANDUM

RAMBO, District Judge.

These cases are a part of the body of litigation surrounding the 1979 accident at Three Mile Island (TMI), a nuclear power generating facility near Harrisburg, Pennsylvania. They were consolidated for pretrial purposes by the court’s omnibus TMI order of December 17, 1981.1 Neither the details of the incident, nor the procedural history, need be discussed here. Presently [165]*165before the court are plaintiffs’ motions for class certification. The motions are opposed by the defendants, owners of TMI, companies involved with its design and construction, and a company which maintained the reactor. For the reasons expressed below class action status will be denied.

Plaintiffs are all tourist-related businesses in Adams and Lancaster Counties, Pennsylvania. The Lancaster plaintiffs operate a variety of businesses associated with the Pennsylvania Dutch tourist industry, while the Adams plaintiffs generally derive their income from tourism in historic Gettysburg.2 They allege a loss of business and/or revenue due to the TMI incident. Plaintiffs now ask for certification of an “economic harm” class under Fed.R.Civ.P. 23(b)(3). The parties’ proposed class is defined as follows:

All persons, proprietorships, partnerships, corporations and other business entities having tourist-related places of business in Lancaster County (Adams County in 81-0405), Pennsylvania more than 25 miles from Three Mile Island Reactor No. 2 which may have suffered economic harm allegedly related to the events which occurred at TMI beginning on or about March 28, 1979 and continuing thereafter. For purposes of this action, the term “tourist-related places of business” shall include hotels, motels, amusement attractions, restaurants, diners, gift shops, service stations, tour agencies, bus companies, retail stores and all other establishments the income of which depends in whole or in part upon tourists, travelers and other visitors from outside Lancaster (Adams) County.

The underlying principle of class actions in the Federal Rules is economy-economy for the parties and the court. Federal Rule of Civil Procedure 23 states in pertinent part:

(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (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.
(b) Class Actions Maintainable. An acr tion may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy....

It is plaintiffs’ burden to establish that they represent a class. Davis v. Romney, 490 F.2d 1360, 1366 (3d Cir. 1974). There is no dispute among the parties that prerequisites (a)(2), (3) and (4) are satisfied in both of the cases under consideration. The requirement of numerosity is more problematic. The plaintiffs must demonstrate that there is a large class, not simply that there are many businesses that could possibly be members of the class. In other words, the plaintiffs must show that the class actually has a large number of members, although the exact number need not be established. Nguyen Da Yen v. Kissinger, 70 F.R.D. 656 (N.D.Ca.1976), mod. on other grounds 528 F.2d 1194 (9th Cir. 1976); Pabon v. Lavine, 70 F.R.D. 674 (S.D.N.Y. 1976); McCoy v. McLeroy, 348 F.Supp. 1034 (M.D.Ga.1972). Here, where the class definition includes the factor of economic harm, there must be some evidence that the al[166]*166leged members of the class suffered some financial detriment during the relevant period of time.

In Nguyen Da Yen v. Kissinger the court failed to find numerosity. In that case disgruntled Vietnamese orphans sued on behalf of all orphans who wanted to return to Viet Nam. While the court found that “nearly 2,000 children were brought to the United States” in the emergency “babylift,” 70 F.R.D. at 660, it denied class certification because the plaintiffs were unable to demonstrate sufficiently numerous orphans wishing to return to Viet Nam. The court held that proof that there were at least ten and potentially 2,000 class members did not establish numerosity. 70 F.R.D. at 662.

The Adams County plaintiffs have not demonstrated numerosity. Not only do they fail to show widespread loss, they even fail to show that there are so many tourist-related businesses in the area that joinder would be impracticable. They make the conclusory statement: “In our case the class consists of at least several hundred,”3 but they fail to provide any evidence of that fact.

Plaintiffs cite Bartelson v. Dean Witter and Co., 86 F.R.D. 657 (E.D.Pa.1980), as authority for the proposition that a class may be certified, even though its exact size is unknown, if common sense or common knowledge indicates that it is large. This is a viable principle of law, but inapposite to the Adams County plaintiffs. In Bartelson there was evidence presented that the potential class numbered 3900 women. If company-wide sexually discriminatory policies were proved, the court believed it could infer some substantial effect on this large base number. The court was not assuming, without any evidence, that numerous plaintiffs existed. In the present case no evidence has been presented of the number of tourist-related businesses in Adams County which are more than twenty-five miles from TMI Reactor No. 2.

Exhibits attached to affidavits submitted in support of the Adams County plaintiffs’ motion for class certification establish a general business decline for the year 1979 as a whole, but reflect increases in sales or admissions (with the exception of Lincoln Heritage, Inc.) for the month of April 1979. According to the report prepared by the Governor’s Office of Policy and Planning entitled The Socio-Economic Impact of the Three Mile Island Accident,4 this is the only month during which Adams County tourism was affected by the TMI incident. The sales figures show substantial decline in the months of June-August of 1979. These were the months when the tourist business suffered nationwide due to the gasoline shortage.

The exhibit showing a decline in visitors to the Gettysburg National Military Park is inconclusive as to whether tourist-related businesses in the area were affected economically by the TMI incident, and, if so, how many.

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95 F.R.D. 164, 35 Fed. R. Serv. 2d 638, 19 ERC (BNA) 1574, 1982 U.S. Dist. LEXIS 14191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-three-mile-island-litigation-pamd-1982.