Combining Two or More Classes into One Toxic Contamination Action - Thomas v. Wilbert & Sons, LLC

In Thomas v. Wilbert & Sons, LLC, Louisiana’s First Circuit Court of Appeals tackles the tricky situation in which two or more certified classes are combined for trial. While such a scenario can be procedurally complicated, the basic class certification principles – including that a court considering class action certification request or challenge not concern itself with the likelihood of success on the merits of an action – remain the same.

1367940_reflections_in_water.jpgThe plaintiffs, residents of a trailer home park in or around Plaquemine, Louisiana, brought the action against the defendants Dow Chemical Company (Dow), Wilbert & Sons, L.L.C. (Wilbert) and other parties claiming that the plaintiffs were injured when Dow allegedly contaminated the Plaquemine aquifer, which provides groundwater to the local area via wells. The plaintiffs seek damages for personal injury due to exposure to the contaminated water as well as property damages – alleging that the contamination damaged their wells and devalued their property – and punitive damages.

While this action was pending, a second group of plaintiffs - which the court refers to as the Robichaux plaintiffs - filed a similar action in neighboring Iberville Parish in March 2002. These plaintiffs did not sue Wilbert, but sought punitive damages and injunctive relief from the state of Louisiana. The Robichaux plaintiffs attained class certification status before the Thomas plaintiffs. In 2007, the Thomas plaintiffs were certified as a class as follows: “[a]ll persons or entities who or which sustained damages to their real property since 1985 due to vinyl chloride, its successors or derivatives in the Plaquemine aquifer, or who were exposed to the drinking water supply at the [trailer home park] which occurred on or before and since the year 1997 near or in Plaquemine…”

The two actions were then consolidated for trial. At this time, the Robichaux plaintiffs appealed the court’s decision to certify the Thomas plaintiffs, arguing that the decision prejudiced their rights as the members of a previously certified class.

In denying the appeal, the court noted that “[c]lass certification is purely procedural. The issue at a class certification hearing is whether the class action is procedurally preferable, not whether any of the plaintiffs will be successful in urging the merits of their claims.” Since the Robichaux plaintiffs argued that the relief sought by the Thomas plaintiffs may limit the relief available to the Robichaux plaintiffs, the Court found that this argument was directed at the merits of the particular claims and therefore improper at this juncture.

In addition to causing a broad range of medical problems, toxic contamination can also wreak havoc on real property by reducing its value. The class action attorneys at DiTommaso Lubin represent plaintiffs in dumping and contamination class action litigation at state and federal levels. These cases typically involve complex issues of liability, causation and damages, which our Illinois trial lawyers have experience in handling.

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