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Allegations that the major oil companies polluted groundwater with a gasoline additive will not be heard as a class action, a Southern District judge ruled Tuesday. Rejecting the arguments of plaintiffs from New York and three other states who sought class status to obtain an injunction that would ensure the safety of their well water, Judge Shira A. Scheindlin said the individual circumstances of each case, and several other factors, made certification impractical and improper in the Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation, MDL No. 1358 Master File No. 00 Civ. 1898. The decision was a victory for the oil companies as they fight off charges by well owners who claimed that the gasoline additive MTBE had contaminated their drinking water. The named plaintiffs wanted class status to seek an injunction on well cleanup that could cost billions of dollars, with individual trials on damages to follow. But Scheindlin said the plaintiffs, despite making “every conceivable argument to persuade this Court that class action treatment is appropriate in this hybrid environmental/products liability action,” did not meet the standards for certification under Rule 23 of the Federal Rules of Civil Procedure. “Such treatment would stretch the decidedly elastic class action device beyond its breaking point — causing it to snap,” she said. The Judicial Panel on Multidistrict Litigation had transferred the cases of six well owners to Scheindlin, who proceeded last year to reject summary judgment motions made by the oil companies. But she also found that some plaintiffs failed to show that their well water had been contaminated or that there was an imminent threat of contamination. The lawsuits were prompted by the increasing use of MTBE in the 1990s following a congressional mandate to reduce air pollution. Although MTBE had the benefit of reducing ozone damage by making gasoline burn cleaner, the Environmental Protection Agency said the additive was a possible human carcinogen that posed a threat to the nation’s drinking water resources because of leakage and spills. The plaintiffs, some of whom live adjacent to or near gas stations, claimed the oil companies conspired to mislead the public and the EPA as part of an effort to increase concentrations of MTBE in gasoline and block demands for additional testing and safety measures. Tuesday, Judge Scheindlin said the named plaintiffs’ claims failed to meet the requirement of “typicality” under Rule 23(a)(3). “While the named plaintiffs make the same legal arguments as the proposed class, their claims must also derive from the same course of conduct,” she said. “Yet, the contamination of each named plaintiff’s well comes through a factually unique set of circumstances” such as a burst pipeline or a leaking container. The plaintiffs were also unable to show that the proposed class action would “adequately and fairly protect the interests of the class,” she said. While courts generally allow plaintiffs to pursue injunctive relief and then bring individual damages actions, Scheindlin said: “Plaintiffs fail to cite, and this Court cannot find, any authority for the proposition that absent class members with personal injury or property claims can be adequately represented by class representatives seeking only injunctive relief.” PROSECUTION OF CLAIMS Another serious concern she said, was that the named plaintiffs’ stake in the action was substantial enough “to prosecute this action vigorously on behalf of absent class members.” “The named plaintiffs actually claim no personal injury,” she said, adding that instead they complain of bad tasting or bad smelling water. The judge noted that many of them had already received relief from administrative agencies in the form of alternative water sources, bottled water or filtration systems. “When viewed against the risk that subsequent courts would preclude absent class members from bringing personal injury claims, the named plaintiffs’ relatively weak incentive to prosecute this case leads to the inescapable conclusion that the class representatives are inadequate,” she said. The plaintiffs failed no better in showing that a class action would be maintainable under Rule 23(b)(2), which Scheindlin said was intended for cases where classwide injunctive relief is needed to redress a groupwide injury, such as in the area of civil rights. But in the tort context, she said, courts have granted certification under Rule 23(b)(2) where “a class seeks only medical monitoring and where a single actor or few actors have caused a discrete accident or contamination of an isolated geographic area.” Scheindlin said that in comparison, “this case presents a novel issue: whether a hybrid environmental contamination/products liability class, seeking mandatory injunctive relief in the form of clean water and well remediation may be certified” where class members are geographically dispersed, a large group of actors made the product, the effect of the contamination is dramatically different among class members and the contamination stems from diverse causes. Peter Sacripanti of McDermott, Will & Emery is liaison counsel for the lawyers representing the defendant oil companies. Morris A. Ratner of San Francisco-based Lieff, Cabraser, Heimann & Bernstein was liaison counsel for the lawyers representing the plaintiffs.

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