The decision of the Appellate Division, Third Department, in Burdick v. Tonoga, Inc., decided November 21, 2019, affirms the trial court’s decision certifying four classes, including a medical monitoring class, arising from claims of property damage and personal injury allegedly resulting from PFOA exposure. The decision potentially expands significantly class action plaintiffs’ use of CPLR 901 and CPLR 902, New York’s rules governing class certification, in environmental tort actions. Although the members of the medical monitoring class do not claim to suffer presently from any demonstrated PFOA-related physical injury, the appellate court nonetheless determined that certification of a medical monitoring class was appropriate because proposed class members: (1) shared exposure to contaminated water from a well or municipal source (2) lived within seven-miles of defendant’s facility and (3) and could demonstrate elevated PFOA blood levels “far in excess of average levels.” Unlike other jurisdictions that have considered whether to permit recovery for medical monitoring, New York law permits a party to sue for medical monitoring recovery if there was exposure to the disease-causing agent and the plaintiff has a rational basis for fear. Arguably, no physical impact needs to be demonstrated.

The Third Department also affirmed the trial court’s certification of three other classes in addition to the medical monitoring class. These classes consist of property owners or lessors asserting property-damage or nuisance claims based upon the presence of PFOA in their soil and water. In certifying these classes, Tonoga argued on appeal, the trial court did not give due consideration to multiple individualized questions relating to causation, liability and damages.

Tonoga, which did business as “Taconic”, owned and operated a manufacturing facility in Petersburgh, New York in Rensselaer County for over fifty years. PFOA and PFOS (later found to have leached into surrounding soils and groundwater) were used in the manufacture of water resistant materials such as Teflon. In 2004, Tonoga identified PFOA in monitoring wells both on its own property and that of adjacent private landowners and notified DEC. EPA issued a provisional health advisory in 2009 concerning exposure to these chemical compounds in drinking water. In May 2016, after further tests determined that PFOA concentrations in the municipal water supply exceeded EPA’s recommended minimum concentrations, DEC declared the manufacturing facility to be a State Superfund site and determined it to be a significant threat to public health. That same year, DEC and Tonoga entered into a consent order requiring the Company to ensure that affected residents had access to filtered water in their homes. Thereafter, the residents of the Town commenced a proposed class action, alleging that defendant’s use and improper disposal of PFOA and PFOS caused personal injury and property damage. The class action complaint proposed four classes (1) a public water property damage class; (2) a private well water damage class; (3) a private well nuisance class; and (4) a PFOA invasion injury class seeking medical monitoring as class members’ remedy.

Mayer Brown LLP filed an excellent amicus curiae brief on behalf of the U.S. Chamber of Commerce. According to the Chamber, the trial court’s decision rested on two separate but related legal errors. First, the trial court’s certification order impermissibly refused to address numerous key issues by declaring–erroneously–that “factual disputes” are inappropriate for resolution at the class certification stage. Second, the trial court repeatedly invoked defendant’s allegedly common course of conduct with respect to PFOA to brush aside the massive variation in individual PFOA exposures and blood levels, medical conditions and health risks, and property features, uses and values for the members of the class. For example, plaintiff’s property valuation expert opined that an “average percent diminution” model could resolve classwide questions about property damage and adequately account for unique features of each property. But the trial court did actually produce the model that he claimed to be able to generate. However, the trial court did not critically examine the value expert’s model or weigh in on matters it viewed as “empirical” that should not be considered at class certification. Moreover, the trial court ignored the findings of a defense expert who demonstrated that many of the area properties had appreciated in value after public disclosure of the alleged PFOA contamination. The decision of the Appellate Division, in affirming the trial court’s conclusions, committed the same errors.

Even assuming that the defendant’s conduct over more than 50 years could be considered “common” for class certification purposes, such conduct could not establish commonality with respect to critical elements of plaintiffs’ claims such as exposure, contamination, causation, and injury. Significantly, the trial court (and by extension, the Appellate Division )mistakenly assumed that the medical monitoring request was premised upon the overriding fact that the PFOA exposures across this seven-mile area were caused by a “single” or “sole” source. In fact, Tonoga argued that elevated PFOA levels could be explained by occupational exposures or from any of the other PFOA-using facilities within the class’ seven-mile radius. As the Appellate Division observed in its ruling, “defendant’s geologist explained that the seven-mile radius zone identified by plaintiffs’ environmental engineer included towns in Vermont and Massachusetts, that both the Little Hoosic River and Hoosic River flow through the area and that there were two other manufacturing facilities in the region that once produced PFOA and PFOS. ” These facts clearly do not support a “sole” or “single” source determination.

In Comcast Corp. v. Behrend, 569 U.S. 27, 33-34 (2013), the U.S. Supreme Court admonished that that a trial court should not “refus[e] to entertain arguments…that b[ear] on the propriety of class certification, simply because those arguments would also be pertinent to the merits determination.” Heeding the Supreme Court’s admonition concerning the importance of considering merits, the Seventh Circuit issued a decision in a 2014 environmental contamination case, Parko v. Shell Oil Co., 739 F.3d 1083 (7th Cir. 2014), denying class certification holding that the trial court considering class certification was obligated “to investigat[e] the realism of the plaintiffs’ injury and damage model in light of the defendants’ counterarguments,” holding those issues “must be engaged” by the trial judge “before he can make a responsible determination of whether to certify a class”. In an earlier article, I discussed Comcast’s impact on toxic tort cases, such as Parko. In Burdick, despite valiant efforts by defendant’s counsel to raise significant flaws in plaintiffs’ experts’ opinions, the trial court gave defendants’ arguments short shrift. Whether the appellate court’s failure to consider the merits of plaintiffs’ proposed class will result in a reversal in the New York Court of Appeals awaits to be seen. As it stands, Burdick sets a bad precedent in environmental toxic tort cases . The decision sets a very low bar for seeking recovery for medical monitoring class certification and ignores “merits” issues that must be considered by the trial court to achieve a just result.

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