Jacobs v. Osmose, Inc.

213 F.R.D. 607, 55 Fed. R. Serv. 3d 1144, 2003 U.S. Dist. LEXIS 9158, 2003 WL 1060155
CourtDistrict Court, S.D. Florida
DecidedFebruary 25, 2003
DocketNo. 01-944-CIV
StatusPublished
Cited by5 cases

This text of 213 F.R.D. 607 (Jacobs v. Osmose, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jacobs v. Osmose, Inc., 213 F.R.D. 607, 55 Fed. R. Serv. 3d 1144, 2003 U.S. Dist. LEXIS 9158, 2003 WL 1060155 (S.D. Fla. 2003).

Opinion

ORDER DENYING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

MIDDLEBROOKS, District Judge.

I. Introduction

THIS CAUSE comes before the Court upon Plaintiffs Jerry Jacobs, Charles Wit-[609]*609troek, Terry Sleep and Larry Sleep’s Motion for Class Certification (DE # 233). The Motion has been fully briefed and is ripe for resolution. After consideration of the Record, the parties’ lengthy submissions, and the oral arguments presented on February 18, 2008, it is the Court’s determination that Plaintiffs’ Motion should be denied.

II. Background

Plaintiffs Jerry Jacobs and Ronald Sabel are residents of Miami-Dade County, Florida. Plaintiffs Sherry and Charles Wittroek are residents of Maple Valley, Washington. Plaintiffs Terry and Larry Sleep are residents of Grand Ledge, Michigan. According to the Plaintiffs, Defendants Osmose, Inc. (“Osmose”), Hickson (USA) Corp. (“Hick-son”), and Chemical Specialties, Inc. (“CSI”) (collectively, “the Formulator Defendants”) manufacture a preservative known as chro-mated copper arsenate (“CCA”), discussed more in detail below.1 Defendant American Wood Preservers Institute (“AWPI”) is a trade organization. Home Depot U.S.A., Inc. (“Home Depot”) is a national retailer of lumber, hardware, and construction products.

A. CCA Treated Wood

Treated wood has been used in construction since its development in its 1930s. Typical structures to feature the wood include outdoor decks, playground equipment, walkways, joists, beams, and posts in home construction. Defendants state that there are eleven major formulators of CCA; three are named as parties in this matter. The wood treatment is multi-tiered and somewhat decentralized. Formulators design and sell the preservative to any of approximately 300 “treaters” who impregnate the wood through a procedure which infuses a liquid solution containing CCA into the wood. This process provides the wood with possibly several decades of protection from decay, termites and other insects, fungi, dry rot, and marine borders. Treaters then sell the finished product to a diverse body of clients: retail outlets (such as Home Depot), lumber yards, independent contractors, wholesalers, highway departments, railroads, builders, municipalities, utility companies, and others, who either use the products or sell them to end users. Treated wood is widely used in this country; Plaintiffs state that in 1997, 467 million cubic feet of treated wood were sold, representing nearly a fifth of all softwood boards and timbers sold.

B. The Registration Process

The Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) requires all pesticides and fungicides to be registered with the U.S. Environmental Protection Agency (“EPA”). See 7 U.S.C. § 136(a) (2002). All registration applicants under FIFRA must demonstrate that their preservative performs its intended function without causing “unreasonable adverse effects on the environment.” 7 U.S.C. § 136(c)(5)(D) (2002). To meet this standard, the registrant must show that the benefits of the preservative’s use exceed its risks. Id. at 136(bb).

Pesticides registered with the EPA are subject to a periodic review process, under which the EPA maintains a “rebuttable presumption against re-registration” (“RPAR”). Registrants must overcome that presumption for their pesticides to remain on the market. Plaintiffs allege that Defendants have “lobbied intensely” against the RPAR proceeding and in favor of its termination. Further, Plaintiffs allege that Defendants’ lobbying eliminated mandatory labels on treated wood products about the toxic effects of arsenic. Nevertheless, the EPA adopted new measures to protect wood treating workers using CCA, and also instituted a voluntary consumer awareness program (“CAP”) for wood treaters to provide and distribute Consumer [610]*610Information Sheets (“CIS”) to lumber yards and retail outlets. See 51 Fed.Reg. 1334, Jan. 10,1986.

The EPA recently has undertaken a new review of CCA as part of its continuous reregistration process. All pesticides first registered before 1984, like CCA, must undergo this review to ensure that they meet current safety standards. 7 U.S.C. 136a-l(a) (2003). The EPA has required CCA registrants to submit additional data, including information regarding exposure to treatment plant employees, to better evaluate human and environmental risks. Once its re-registration process is complete, EPA will issue a “reregistration eligibility decision” and explain its findings and conclusions regarding the continued use of CCA. Id. at § 136a-l(g).

C. The Safety of CCA Treated Wood

Defendants state that the CIS has been available since 1986, containing EPA-approved language advising consumers that treated wood is preserved with “an EPA-registered pesticide containing inorganic arsenic to protect it from insect attack and decay.” The disclosure apparently cautions that “[w]ood treated with inorganic arsenic should be used only where such protection is important” and advises that “inorganic arsenic penetrates deeply into and remains in the pressure-treated wood for a long time,” but that “[e]xposure to inorganic arsenic may present certain hazards.” In 2001, the CIS disclosures were expanded to provide specifically that “some chemical may migrate from treated wood into surrounding soil over time and may be dislodged from the wood surface upon contact with the skin.”

In addition, the CIS contains precautions on the handling, use, and disposal of treated wood, advising consumers about, for example, the proper disposal of treated wood sawdust. It also cautions against the use of treated wood in silage containers, cutting boards or countertops, beehives, or places in which the wood could come in contact with drinking water. See 51 Fed.Reg. 1334 (Jan. 10, 1986). In addition, the CIS contains directions for working with the wood. For instance, it directs users to dispose of wood by either discarding or burying it, or to wash their hands thoroughly after sawing or machining it. See id. Defendants also state that end-tags detailing safe handling procedures contained much of the same information listed in the CIS. Such tags also advised purchasers to ask dealers for warranty information and handling guides.

This dispute focuses largely on both whether CCA treated wood is actually unsafe, and whether Defendants’ conduct in promulgating warnings was sufficient. Defendants maintain that treated wood is perfectly safe when used and maintained properly. According to Defendants, arsenic, chromium, and copper (the three elements found in CCA) are mineral elements found (at least in traces) in all soils. Further, as Defendants add, arsenic is also routinely found in food and water, and a study found that consumption of inorganic arsenic in food ranged up to 124 micrograms per day-approximately fourteen times higher than estimates of the reasonable maximum arsenic exposure levels an average individual might experience from treated wood. See Teresa S. Bowers Aff. at 11-12.

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213 F.R.D. 607, 55 Fed. R. Serv. 3d 1144, 2003 U.S. Dist. LEXIS 9158, 2003 WL 1060155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jacobs-v-osmose-inc-flsd-2003.