Following the Supreme Court of Appeals of West Virginia’s decision last month to hear DuPont’s appeals from the $400 million verdict in Perrine v. DuPont, the medical monitoring class action from Harrison County, West Virginia, DuPont got more good news last week.
According to Ken Ward, Jr. in last Friday’s Charleston Gazette, United States District Chief Judge Joseph R. Goodwin has denied the plaintiffs’ motion to certify a class consisting of everyone who was a Parkersburg, West Virginia water customer for at least one year since November 1, 2005. The plaintiffs alleged that Parkersburg’s water supply was contaminated with perfluoroctanoic acid, also known as C-8, a substance used by DuPont in the manufacture of various industrial and consumer products, and sought medical monitoring for illnesses related to C-8 exposure. Here is Judge Goodwin’s order, which was entered on September 30, 2008. Rhodes v. E. I. du Pont de Nemours and Company, Civil Action No. 6:06-CV-00530.
Judge Goodwin summarized his ruling in this way:
The plaintiffs have presented compelling evidence that exposure to C-8 may be harmful to human health, and the evidence certainly justifies the concerns expressed by the plaintiffs in this case. What the plaintiffs misunderstand, however, is what they must show in order for me to certify the case. I cannot certify a class based on some potential harm to the general public, rather, there must be specific injuries to each member of the proposed class. The fact that a public health risk may exist is more than enough to raise concern in the community and call government agencies to action, but it does not show the common individual injuries needed to certify a class action.
The Class Action Defense Blog published by MIchael J. Hassen has this thorough discussion of Judge Goodwin’s decision.
Rule 23(f) of the Federal Rules of Civil Procedure entitles either party to appeal the grant or denial of certification within ten days of the decision by filing a petition for permission to appeal the ruling. The appeal is limited to the issue of class certification except that a court may review a legal or factual issue that addresses the merits of the case if the issue also addresses the merits of the certification.