A heavy-metals plant in Alloy, West Virginia provided a foundation for the local economy throughout the 20th century. (Hence the name Alloy.) In the 21st century, it provided the basis for an extensive class action lawsuit–Coleman v. Union Carbide Corp., 2013 U.S. Dist. LEXIS 140613 (S.D. W. Va. Sep. 30, 2013)–which alleged that decades of substandard emissions controls had caused the release of 17 different toxic substances into the air, resulting in more than 30 different diseases among the local population. The lawsuit sought medical monitoring for Alloy residents and those who had been exposed. (In this case, the plaintiffs sought certification under Rule 23(b)(2).)

As one might imagine, the resulting class litigation was messy and hard fought (for example, 33 named plaintiffs were eventually winnowed down to just ten), and heavily dependent on various scientific experts. And that’s why, before joining the certification debate, the defendants deposed the plaintiffs’ experts and moved to exclude their opinions as not scientifically reliable.

Since expert testimony would be crucial to both certification and the merits, the trial court entertained the motions to exclude expert testimony first, noting:

The gatekeeping role exercised by the district court is a critical one. Inasmuch as expert witnesses have the potential to be both powerful and quite misleading, the court must ensure that any and all scientific testimony . . . is not only relevant, but reliable.

(Emphasis added, internal quotations omitted.) It then proceeded to strike the testimony of two of the plaintiffs’ experts, in particular because their methodology did not match the classwide allegations they were supposedly supporting. (In striking the testimony, the court relied on the Supreme Court’s guidance in Behrend.)

It then found that the proposed classes could not be certified, in no small part because they were not ascertainable without the supporting expert testimony.

Based upon the court’s ruling excluding the opinions of Messrs. Haunschild and Horsak, the proposed classes have, at a minimum, become unascertainable. Plaintiffs propose essentially three objective criteria by which to define the classes, namely, (1) whether the person resided in, worked in or attended school in the radius of impact, (2) whether the person did so for a continuous period of certain temporal lengths, and
(3) whether the person has been diagnosed with an illness or disease attributable to substances released from the Alloy Plant. Absent the excluded expert opinions, class-wide proof of those three objective criteria is unavailable and the class is not susceptible to objective identification. There are, however, a host of other impediments to certification even assuming the plaintiffs’ expert corps remained intact.

(Emphasis added) Among those was the fact that condition (3) would require both a diagnosis and a finding of causation, meaning that the class definition was merits-based as well as dependent on expert testimony.

The real kicker to this opinion, though, is that the trial court was in the Fourth Circuit, one of the few circuits not to require a full Daubert hearing for certification.

And that’s an important lesson for defendants. Just because a court of appeals has refused to require adequate procedural protections in a class action does not mean one should not insist on them anyway. The trial court may still recognize that, for example, a Daubert inquiry will assist a rigorous analysis of class issues in a complex case.