Smith v. Conocophillips Pipe Line Co.

298 F.R.D. 575, 2014 U.S. Dist. LEXIS 43172, 2014 WL 1314942
CourtDistrict Court, E.D. Missouri
DecidedMarch 31, 2014
DocketNo. 4:11-CV-2040-JAR
StatusPublished
Cited by3 cases

This text of 298 F.R.D. 575 (Smith v. Conocophillips Pipe Line Co.) is published on Counsel Stack Legal Research, covering District Court, E.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Conocophillips Pipe Line Co., 298 F.R.D. 575, 2014 U.S. Dist. LEXIS 43172, 2014 WL 1314942 (E.D. Mo. 2014).

Opinion

MEMORANDUM AND ORDER

JOHN A. ROSS, District Judge.

This matter is before the Court on Plaintiff’s Motion for Class Certification (Doc. No. 47) and Defendant’s Motions to Exclude Opinions of Dr. Richard Parent (Doe. No. 35) and Dr. Patrick Agostino. (Doc. No. 58) The motions are fully briefed and ready for disposition. By agreement of the parties, the motions were taken together and a hearing was held on October 3, 2013. On October 28, 2013, Defendant filed additional supplemental authority in support of its motions to exclude testimony of Dr. Agostino and in opposition to class certification. (Doc. No. 71) For the following reasons, Plaintiff’s motion for class certification will be granted in part and denied in part, and Defendant’s motions to exclude expert opinions will be denied.

I. Background1

Plaintiffs bring this putative class action for injunctive relief and damages resulting from petroleum contamination from a leak in a pipeline system now owned by Defendant dating back to the 1960’s. In May 2002, Defendant was notified of gasoline vapors in the basement of a residence at 16062 North State Route 94 in West Alton, Missouri, owned by Don and Dana Ellebracht. The pipeline system is adjacent to the Ellebracht property. Groundwater samples collected by Defendant on and around the Ellebracht property in June 2002 tested positive for benzene and methyl-t-butyl ether (MTBE). Thereafter, Defendant began supplying bottled drinking water to residents in West Alton. Defendant subsequently purchased the Ellebrachts’ property, along with the properties of two neighboring families, the Tomlins and the Cowans, and demolished the homes in 2006. As part of a remediation plan, 4,000 yards of soil in the area were removed in 2007. The property is now surrounded by a chain-link fence and signs are posted restricting entry to authorized personnel. In 2009, the pipeline was taken out of service.

Plaintiff property owners allege that as a result of the leak, they have been exposed to byproducts of refined petroleum products in their water, including benzene, toluene, ethylbenzene and xylene (BTEX) and MTBE, that Defendant has failed and continues to fail to remediate the leak, and that contaminants remain in the soil and water, posing a health risk to surrounding property owners and diminishing property values. (First Amended Class Action Complaint (FAC), Doc. No. 21, ¶¶ 10-11, 15, 17-22).

Plaintiffs seek to certify a property damage class under Fed.R.Civ.P. 23(b)(2) and (3) and a medical monitoring class under Fed. R.Civ.P. 23(b)(3). Defendant opposes certification on the grounds that Plaintiffs cannot sufficiently establish that there are enough potential plaintiffs and fail to meet the other requirements of Rule 23(a) and (b). In addition, Defendant challenges Plaintiffs’ proposed class definitions as overly broad.

II. Legal Standard

“In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). Although “it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question,” a court has no “authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.” General Telephone Co. of Southwest v. Falcon, 457 U.S. [580]*580147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982).

In order for this action to be maintained as a class action, Plaintiffs must satisfy the four requirements of Rule 23(a), often referred to as numerosity, commonality, typicality, and adequacy of representation, as well as one of the requirements of Rule 23(b). Glen v. Fairway Independent Mortg. Corp., 265 F.R.D. 474, 478 (E.D.Mo.2010). Although the court has broad discretion in determining whether to certify a class, in close eases courts should err in favor of certification because the class can be modified as the case progresses. In re Aquila ERISA Litigation, 237 F.R.D. 202, 207 (W.D.Mo.2006) (citing In re Control Data Corp. Securities Litigation, 116 F.R.D. 216, 219 (D.Minn.1986)).

III. Daubert motions

In support of their motion for class certification, Plaintiffs submit the reports and testimony of their experts, geologist Patrick Agostino, Ph.D. and toxicologist Richard Parent, M.D. Plaintiffs retained Dr. Agostino to opine on the risk posed by pipeline releases, appropriate testing required to delineate the contamination, the areal and vertical distribution of hydrocarbons in soils and groundwater, and the persistence of petroleum releases in the subsurface environment. (Agostino Report, Doc. No. 59-1, p. 6). He concludes that the original plume resulting from the leak was larger in areal extent than the plume mapped in 2002, that the leaded gasoline and diesel continue to contaminate soil and groundwater and remain a threat to the drinking water supply, and that a more aggressive remediation plan is required in West Alton to remove the free product and remediate the plume. (Id., pp. 15-17).

Plaintiffs retained Dr. Parent to opine on the relationship between general exposure to benzene and lead and the need for medical monitoring. He opines that “in consideration of the fact that the Ellebracht neighbors are assumed to have been exposed to both benzene and lead, that they should be monitored for early effects which may lead to leukemia from benzene or the development of behavioral anomalies and early dementia among other conditions described herein as a result of early exposure to lead.” (Parent Report, Doc. No. 36-1, pp. 7-8).

Defendants move the Court to exclude the opinions of both Dr. Agostino and Dr. Parent or, in the alternative, for a full Daubert hearing on the issue of the admissibility of their testimony.

As a threshold matter, the parties disagree on the extent of the Daubert analysis at the class certification stage.2 Defendant urges the Court to apply a rigorous Daubert analysis following the Seventh Circuit’s approach in Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 814 (7th Cir.2012), when considering whether Dr. Parent’s and Dr. Agostino’s opinions may be used to support Plaintiffs’ request for class certification. In Messner, the court ruled that a full Daubert hearing and analysis is necessary on the issue of admissibility of expert opinions if the opinion is “critical” to class certification. Plaintiffs on the other hand argue that Defendant’s request for a full Daubert hearing as to the admissibility of their experts’ testimony is premature, relying on In re Zurn Pex Plumbing Prods. Liab. Litig. v. Zurn Pex, 644 F.3d 604 (8th Cir.2011). In Zurn Pex,

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298 F.R.D. 575, 2014 U.S. Dist. LEXIS 43172, 2014 WL 1314942, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-conocophillips-pipe-line-co-moed-2014.