Free Memorandum in Opposition to Motion - District Court of Connecticut - Connecticut

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT ) ) Plaintiffs, ) ) vs. ) ) OLIN CORPORATION ) ) Defendant ) ____________________________________) CLARENCE COLLINS, JR., et al

3:03-CV-945 (CFD)

DEFENDANT OLIN CORPORATION'S OPPOSITION TO PLAINTIFFS' THIRD AMENDED MOTION FOR CLASS CERTIFICATION Defendant Olin Corporation ("Olin") respectfully submits this memorandum in opposition to Plaintiffs' Third Amended Motion for Class Certification. .

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TABLE OF CONTENTS

Table of Contents...............................................................................................i

Table of Authorities...........................................................................................iii

INTRODUCTION.............................................................................................1

STATEMENT OF RELEVANT FACTS...................................................................2

LEGAL STANDARDS APPLICABLE TO RULE 23...................................................3

ARGUMENT...................................................................................................5 I. The court Should Deny Plaintiffs' Motion for Class Certification Under Rule 23(b)(3) Because Individual Issues Predominate With Respect to Plaintiffs' Claims............................9 A. Individual Issues Predominate With Respect To Plaintiffs' Claims For Infliction Of Emotional Distress Because The Court Would Have To Undertake A FactIntensive (Plaintiff-By-Plaintiff) Inquiry To Determine To What Extent, If Any, Each Plaintiff Suffers Emotional Distress And, If So, Whether Such Emotional Distress Was Caused By Waste Deposited By Olin Or By Various Other Possible Factors........................................................................................10 Individual Issues Predominate With Respect To Plaintiffs' Claims For Nuisance And Negligence Because The Court Would Have To Undertake A Fact-Intensive (Property-By-Property) Inquiry To Determine To What Extent, If Any, Any alleged Waste At Each Property Originated From Olin Or From Various Other Possible Sources...................................................................................14

B.

1.

Individual Issues Predominate With Respect To The Proximate Causation Requirement Relating To Plaintiffs' Claims For Nuisance And Negligence .........................................................................................15

a)

Testimony By Shannon Windisch Pociu Of The DEP..............17

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b) c)

The Expert Report Of Kenneth Cichon...............................19 Admissions Made By Michael Hopkins..............................20

2.

Individual Issues Also Predominate With Respect To The Unreasonable Interference Requirement Associated With Plaintiffs' Claims For Nuisance.............................................................................22

II.

The Court Should Deny Plaintiffs' Motion For Class Certification Under Rule 23(b)(3) Because, Assuming The Court Denies Olin's Pending Motion For Summary Judgment Based On Statute Of Limitations, Then Individual Issues Would Predominate Because The Court Would Have To Conduct A Fact-Intensive Inquiry Concerning The Extent Of Knowledge Of Each Putative Class Member To Determine Whether Their Claims Are Time-Barred..........................................................................................24

III.

The Court Should Deny Plaintiffs' Motion For Class Certification Under Rule 23(b)(3) Because Individual Issues Predominate With Respect To Plaintiffs' Alleged Damages...............................................................................................28

CONCLUSION...............................................................................................36

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TABLE OF AUTHORITIES

Alvarado Morales v. Digital Equip. Corp., 669 F. Supp. 1173 (D. Puerto Rico 1987), aff'd 843 F.2d 613 (1st Cir. 1988)..........................................................................11 American Surety Co. v. Baldwin, 287 U.S. 156 (1932)..........................................................................................28 Arch v. American Tobacco Co., 175 F.R.D. 469 (E.D. Pa. 1997)........................................................................27, 28 Ball v. Union Carbide Corp., 212 F.R.D. 380 (E.D. Tenn. 2002) aff'd, 385 F.3d 713 (6th Cir. 2004)................................7 Barnes v. American Tobacco Co., 161 F.3d 127 (3rd Cir. 1998)...........................................................................22, 26 Boughton v. Cotter Corp., 65 F.3d 823 (10th Cir. 1995).................................................................................8 Broussard v. Meineke Disc. Muffler Shops, Inc., 155 F.3d 331 (4th Cir. 1998)...............................................................................26 Brown v. Southeastern PA Transp. Authority, 1987 WL 9273 (E.D. Pa. April 9, 1987)............................................................9, 11, 16 Castano v. American Tobacco Co., 84 F.3d 734 (5th Cir. 1996)...................................................................................5 Church v. General Elec. Co., 138 F. Supp.2d 169 (D. Mass. 2001)..................................................................7, 22 Cohn v. Massachusetts Mutual Life Ins. Co., 189 F.R.D. 209 (D. Conn. 1999)............................................................................5 Collins v. Olin Corp., 418 F. Supp.2d 34 (D. Conn. 2006)...............................................................10, 14, 23 Commonwealth of Puerto Rico v. M/V Emily S., 158 F.R.D. 9 (D. Puerto Rico 1994)........................................................................11 Corley v. Entergy Corp., 220 F.R.D. 478 (E.D. Tex. 2004)...........................................................................26

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Goldberg v. Kelly, 397 U.S. 254 (1970)..........................................................................................28 Hyderi v. Washington Mutual Bank, 235 F.R.D. 390 (N.D. Ill. 2006)............................................................................30 Ilhardt v. A.O. Smith Corp., 168 F.R.D. 613 (S.D. Ohio 1996)..........................................................................27 In re Agent Orange Product Liability Litigation, 818 F.2d 145 (2d Cir. 1987).........................................................................1, 6, 7, 9 In re Ford Motor Co. Vehicle Paint Litig., 182 F.R.D. 214 (E.D. La. 1998)............................................................................28 In re Initial Public Offering Securities Litigation, 471 F.3d 24 (2d Cir. 2006)...........................................................................5, 24, 25 In re Masonite Corp. Hardboard Siding Prods. Liab., 190 F.R.D. 417 (E.D. La. 1997)............................................................................28 In re Three Mile Island Litig., 87 F.R.D. 433 (M.D. Pa. 1980)........................................................................11, 12 In re Visa Check/Mastermoney Antitrust Litig., 280 F.3d 124 (2d Cir. 2001).................................................................................26 LaBauve v. Olin Corp., 231 F.R.D. 632 (S.D. Ala. 2005)...................................................................7, 16, 26 Lindsey v. Normet, 405 U.S. 56 (1972)............................................................................................28 Martin v. Shell Oil Co., 198 F.R.D. 580 (D. Conn. 2000).....................................................................4, 8, 15 McGuire v. Int'l Paper Co., 1994 WL 261360 (S.D. Miss. Feb. 18, 1994).....................................................8, 11, 27 Mejdrech v. Met-Coil Sys. Corp., 319 F.3d 910 (7th Cir. 2003).................................................................................9 Millet v. Atlantic Richfield Co., 2000 WL 359979 (Me. Super. Ct. March 2, 2000)....................................................8, 16

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Moore v. Painewebber, Inc., 306 F.3d 1247 (2d Cir. 2002)..............................................................................4, 9 O'Connor v. Boeing North American, Inc., 197 F.R.D. 404 (C.D. Cal. 2000)....................................................................8, 27, 28 Olden v. LaFarge Corp., 383 F.3d 495 (6th Cir. 2004).................................................................................9 Reilly v. Gould, Inc., 965 F. Supp. 588 (M.D. Pa. 1997)..................................................................8, 15, 16 Robertson v. Sikorsky Aircraft Corp., 2000 WL 33381019 (D. Conn. July 5, 2001).............................................................28 Sanna v. Delta Airlines, 132 F.R.D. 47 (N.D. Ohio 1990)............................................................................11 Satsky v. Paramount Comm., Inc., 1996 WL 1062376 (D. Col. March 13, 1996).................................................8, 11, 22, 30 Sazbo v. Bridgeport Machs., 249 F.3d 672 (7th Cir.), cert. denied, 534 U.S. 951 (2001)...............................................5 Steering Comm. v. Exxon Mobil Corp., 461 F.3d 598 (5th Cir. 2006)...............................................................................29 Sterling v. Velsicol Chem. Corp., 855 F.2d 1188 (6th Cir. 1988)...............................................................................9 Thomas v. FAG Bearings Corp., 846 F. Supp. 1400 (W.D. Mo. 1994)...............................................................8, 16, 36 Thompson v. American Tobacco Co., 189 F.R.D. 544 (D. Minn. 1999)...........................................................................26 Tri-State Crematory Litig., 215 F.R.D. 660 (N.D. Ga. 2003)...............................................................................11 Winn. v. Posades, 913 A.2d 407, 411 (Conn. 2007)...........................................................................15 Yslava v. Hughes Aircraft Co., 845 F. Supp. 705 (D. Ariz. 1993).............................................................................9

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INTRODUCTION This case arises from waste allegedly deposited by Olin decades ago in public landfills that were maintained by the Town of Hamden. Based on the discovery of contamination in the Newhall neighborhood, Plaintiffs ask this Court to certify under Rule 23(b)(3) a Class and several related Subclasses of property owners from the Newhall neighborhood. Plaintiffs seek to recover alleged damages for emotional distress, diminution in property value, loss of use and enjoyment of the ir properties, and response costs. This case is not suitable for class treatment because it involves individualized claims for injuries resulting from alleged exposure to hazardous substances. In In re Agent Orange Product Liability Litigation, 818 F.2d 145 (2d Cir. 1987), the Second Circuit expressed "skepticism over the usefulness of class actions in so-called mass tort cases and, in particular, claims for injuries resulting from toxic exposure." Id. at 164 (emphasis added). In so doing, the Second Circuit emphasized that in "an action by civilians based on exposure to [hazardous substances] in the course of civilian affairs, we believe certification of a class action would have been error." Id. at 166-67 (emphasis added). For several reasons, this Court should reach the same conclusion here. First, individual issues predominate with respect to Plaintiffs' claims. Individual issues predominate with respect to Plaintiffs' claims for infliction of emotional distress because the Court would have to conduct an individualized (plaintiff-by-plaintiff) inquiry to determine to what extent, if any, each plaintiff suffers emotional distress and, if so, whether such emotional distress was caused by waste allegedly deposited by Olin or by various other possible factors. Similarly, individual issues predominate with respect to Plaintiffs' claims for negligence and nuisance because the Court would have to conduct an individualized (property-by-property)

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inquiry to determine to what extent, if any, any alleged waste at each property originated from Olin or from various other possible sources. Second, individual issues predominate with respect to Olin's statute of limitations defense. Assuming the Court denies Olin's pending motion for summary judgment based on statute of limitations, then it follows that individual issues would predominate because the Court would have to conduct a fact- intensive inquiry concerning the extent of knowledge of each putative class member to determine whether their claims are time-barred. Third, individual issues also predominate with respect to Plaintiffs' alleged damages. Indeed, the measure of any alleged damages suffered by a putative class member would depend on many different individual factors that are not susceptible to common proof, but rather, would require hundreds of mini-trials on complex causation and damages issues. For the foregoing reasons (which are addressed in detail below), the Court should deny Plaintiffs' Third Amended Motion for Class Certification. STATEMENT OF RELEVANT FACTS On May 2, 2003, Plaintiffs served Olin with their original Complaint. More recently, on December 20, 2006, Plaintiffs filed their Second Amended Complaint. 1 Plaintiffs' Second Amended Complaint consists of ten counts: Count I ­ Negligence; Count II ­ Gross Negligence/Reckless Conduct; Count III ­ Violation of the Environmental Protection Act of 1971 2 ; Count IV ­ Negligence Per Se; Count V ­ Abnormally Dangerous Activity/Strict Liability; Count VI ­ Infliction of Emotional Distress; Count VII ­ Recovery under Conn. Gen. Stat. § 22a-452; Count VIII ­ Public Nuisance; Count IX ­ Private Nuisance; and Count X ­ Recovery of Response Costs under CERCLA § 107 ­ 42 U.S.C. § 9607.
1 2

For convenience, Plaintiffs' Second Amended Complaint is referred to as "Compl." On January 10, 2007, the Court dismissed this claim against Olin without prejudice.

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With respect to each of these claims, Plaintiffs seek to certify the following three subclasses: · Contaminated Properties Subclass: This proposed subclass includes "all members of the Class onto which Olin disposed contaminated fill after it purchased Winchester in 1931." Compl. at ¶ 31; · Stigma Subclass: This proposed subclass includes "all members of the Class who own real property within the Newhall Section onto which Olin did not dispose of industrial waste containing contamination after it purchased Winchester in 1931, but who have suffered damages as a result of their close proximity to the Contaminated Properties Subclass." Compl. at ¶ 32; and · Response Cost Subclass: This proposed subclass includes "members of the Class who own real property in the Newhall Section who have or will incur response costs in order to redress residual contamination." Compl. at ¶ 33. On behalf of the foregoing proposed subclasses, the putative class representatives seek to recover "damages against Olin Corporation for the diminution in the value of their properties, response costs, loss of enjoyment of their properties and emotional distress." Compl. at ¶ 1. LEGAL STANDARDS APPLICABLE TO RULE 23 As the proponents of class certification, Plaintiffs "bear the burden of establishing each requirement for class certification. " Martin v. Shell Oil Co., 198 F.R.D. 580, 590 (D. Conn. 2000). Rule 23(a) sets forth four prerequisites that must be met before a class can be certified: (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation.

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Fed.R.Civ.P. 23(a). In addition, since Plaintiffs seek certification solely under Rule 23(b)(3), 3 the Court "must decide whether `questions of law or fact common to the members of the class predominate over any questions affecting only individual members,' and whether a class action `is superior to other available methods for the fair and efficient adjudication of the controversy.'" Fed.R.Civ.P. 23(b)(3). With respect to Rule 23(b)(3), in Moore v. Painewebber, Inc., 306 F.3d 1247 (2d Cir. 2002), the Second Circuit held : The Rule 23(b)(3) predominance inquiry tests whethe r the proposed classes are sufficiently cohesive to warrant adjudication by representation. It is a more demanding criterion than the commonality inquiry under Rule 23(a). Classwide issues predominate if resolution of some of the legal or factual questions that qualify each class member's case as a genuine controversy can be achieved through generalized proof, and if these particular issues are more substantial than the issues subject only to individualized proof. Id. at 1252 (citations omitted) (emphasis added). Since "`the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action,' the Rule 23 analysis often requires the court `to probe behind the pleadings before coming to rest on the certification question.'" Cohn v. Massachusetts Mutual Life Ins. Co., 189 F.R.D. 209, 212 (D. Conn. 1999) (citations omitted). As a result, the Court's "decision whether to certify a class should be based on a `pragmatic assessment of the entire action.'" Id. See also Castano v. American Tobacco Co., 84 F.3d 734, 744-45 (5th Cir. 1996) ("court must understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues"); Sazbo v. Bridgeport Machs., 249 F.3d 672, 677 (7th Cir.), cert. denied, 534 U.S. 951 (2001) (same).

3

See Docket No. 195; Plaintiff's Memorandum in Support of Second Amended Motion for Class Certification at pp. 14-19.

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In In re Initial Public Offering Securities Litigation, 471 F.3d 24 (2d Cir. 2006), the Second Circuit emphasized that the "certification decision requires `rigorous analysis." Id. at 32. Furthermore, in addressing the "troublesome" issue that arises "when the Rule 23 requirement overlaps with an issue on the merits," the Second Circuit held that: (1) a district judge may certify a class action only after making determinations that each of the Rule 23 requirements has been met; (2) such determinations can be made only if the judge resolves factual disputes relevant to each Rule 23 requirement and finds that whatever underlying facts are relevant to a particular Rule 23 requirement have been established and is persuaded to rule, based on the relevant facts and applicable legal standard, that the requirement is met; (3) the obligation to make suc h determinations is not lessened by overlap between a Rule 23 requirement and a merits issue, even a merits issue that is identical with a Rule 23 requirement; (4) in making such determinations, a district judge should not assess any aspect of the merits unrelated to a Rule 23 requirement; and (5) a district judge has ample discretion to circumscribe both the extent of discovery concerning Rule 23 requirements and the extent of a hearing to determine whether such requirements are met in order to assure that a class certification motion does not become a pretext for a partial trial of the merits. 471 F.3d at 41. Applying such a rigorous analysis conclusively establishes that this Court should deny Plaintiffs' Third Amended Motion for Class Certification. ARGUMENT In In re Agent Orange Product Liability Litigation, 818 F.2d 145 (2d Cir. 1987) ("Agent Orange Case"), the Second Circuit affirmed certification under Rule 23(b)(3) of a class consisting of military personnel who were injured while serving in Vietna m due to exposure to Agent Orange. Id. at 154. In addressing the class certification issue, the court began its analysis by noting that the "comment to Rule 23(b)(3) explicitly cautions against use of the class action device in mass tort cases," because: A `mass accident' resulting in injuries to numerous persons is ordinarily not appropriate for a class action because of the likelihood that significant questions,

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not only of damages but of liability and defenses to liability, would be present, affecting the individuals in different ways. 818 F.2d at 164 (quoting Advisory Committee Notes to 1966 Revision of Fed.R.Civ.P. Rule 23). Consistent with the foregoing observation, the Second Circuit stated that the "present litigation justifies the prevalent skepticism over the usefulness of class actions in so-called mass tort cases and, in particular, claims for injuries resulting from toxic exposure." Id. at 164. In support, the court emphasized that: The relevant question, therefore, is not whether Agent Orange has the capacity to cause harm, the generic causation issue, but whether it did cause harm and to whom. That determination is highly individualistic, and depends upon the characteristics of individual plaintiffs ( .g., state of health, lifestyle) and the e nature of their exposure to Agent Orange. 818 F.2d at 165 (italics in original) (emphasis added). As a result, the Second Circuit concluded that certifying a class would have been improper but for the "centrality of the military contractor defense": Were this an action by civilians based on exposure to dioxin in the course of civilian affairs, we believe certification of a class action would have been error. However, we return to the cardinal fact we noted in denying the petition for writ of mandamus, namely that `the alleged damage was caused by a product sold by private manufacturers under contract to the government for use in a war.' .... In our view, class certification was justified under Rule 23(b)(3) due to the centrality of the military contractor defense.... If the defense succeeds, the entire litigation is disposed of.... 818 F.2d at 166-67 (emphasis added). No dispositive government contractor defense applies in this case. Rather, this is an "action by civilians" based on alleged exposure to contamination "in the course of civilian affairs." Thus, it follows that certification of a class action in this case would be "error."

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A long line of environmental class action cases since the Second Circuit entered its decision in the Agent Orange Case support this conclusion. Indeed, "the overwhelming majority of courts have denied certification in environmental mass tort cases, even in single-source cases."4 See, e.g., LaBauve v. Olin Corp., 231 F.R.D. 632, 673 (S.D. Ala. 2005) (denying class certification of claims brought by property owners because "individualized inquiry" would have been needed "to establish most of the elements" of plaintiffs' claims); Ball v. Union Carbide Corp., 212 F.R.D. 380, 391 (E.D. Tenn. 2002), aff'd, 385 F.3d 713 (6th Cir. 2004) (denying certification in consolidated cases alleging exposure to radioactive materials because individual issues predominated over common issues); Church v. General Elec. Co., 138 F. Supp.2d 169, 181-82 (D. Mass. 2001) (denying certification in case alleging diminution in property values due to contamination because individual issues predominated); O'Connor v. Boeing North American, Inc., 197 F.R.D. 404, 409-15 (C.D. Cal. 2000) (decertifying classes in case alleging property damage because individual issues predominated over common issues); Martin v. Shell Oil Co., 198 F.R.D. 580, 592 (D. Conn. 2000) (denying certification in contamination case under predominance requirement, because "the proof of causation, while it may involve similar evidence for each of the plaintiffs, will not likely be identical"); Millet v. Atlantic Richfield Co., 2000 WL 359979 at * 10-16 (Me. Super. Ct. March 2, 2000) (denying certification in contamination case under predominance requirement, due to individual issues relating to causation); Reilly v. Gould, Inc., 965 F. Supp. 588, 604 (M.D. Pa. 1997) (dismissing class allegations in lead contamination case because the "possibility that some class members could
4

"Single-source" refers to one possible source of contamination as to the entire class. As discussed herein, this case is n a single -source case. First, this case involves waste allegedly deposited by ot Winchester prior to 1931 (for which Olin cannot be held liable) as well as waste deposited by other thirdparties, both before and after 1931. Second, this case involves waste (such as lead and arsenic) that did not necessarily originate from any waste allegedly deposited by Olin , but rather, from many other different potential sources.

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have been exposed to lead from other origins results in the need for an individual and highly factually intensive analysis of all plaintiffs involved in this action"); Satsky v. Paramount Comm., Inc., 1996 WL 1062376 at *14-15 (D. Col. March 13, 1996) (denying certification in contamination case because individual issues predominated, including "the extent and nature of physical and emotional injuries suffered by plaintiffs"); Boughton v. Cotter Corp., 65 F.3d 823, 828 (10th Cir. 1995) (affirming denial of certification in case alleging uranium exposure to plaintiffs' property in part because "individual measurements can be quite relevant evidence in determining the extent of an individual's level of exposure and ... such measurements may vary from individual to individual"); Thomas v. FAG Bearings Corp., 846 F. Supp. 1400, 1404 (W.D. Mo. 1994) (denying certification in contamination case where individual issues predominated with respect to both causation and damages); McGuire v. Int'l Paper Co., 1994 WL 261360 at *7 (S.D. Miss. Feb. 18, 1994) (denying certification in contamination case because "[b]oth the property damage and emotional distress claims depend on a wide variety of individual factors); Brown v. Southeastern PA Transp. Authority, 1987 WL 9273 at *10 (E.D. Pa. April 9, 1987) (denying certification in PCB contamination case because "any determination of causation" would require "individualized inquires" concerning the varying levels of exposure and medical histories of each plaintiff). 5
5

The cases relied upon by Plaintiffs in support of their Third Amended Motion for Class Certification with respect to the Rule 23(b)(3) requirement are readily distinguishable: Sterling v. Velsicol Chem. Corp., 855 F.2d 1188 (6th Cir. 1988) (Plaintiffs' Brief at p. 16) (Docket # 195), is a single -source case and therefore inapplicable. Indeed, the Sixth Circuit recently distinguished Sterling, refusing to apply it in the context of multiple sources of contamination. Ball, 385 F.3d at 728. Likewise, in Olden v. LaFarge Corp., 383 F.3d 495 (6th Cir. 2004) (Plaintiffs' Brief at p. 16), there was no evidence of other contamination sources, so the class was certified as to liability. Id. 508-09. Also, the Olden plaintiffs sought injunctive relief and their claims were certified under both Rule 23(b)(2) and (b)(3). Id. at 510. Yslava v. Hughes Aircraft Co., 845 F. Supp. 705 (D. Ariz. 1993) (Plaintiffs' Brief, at p. 17), was certified as a medical monitoring class only under Rule 23(b)(2). Similarly, in Mejdrech v. Met-Coil Sys. Corp.,

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The above cases, which by no means are exhaustive, are instructive. In particular, the foregoing cases confirm that consistent with the Second Circuit's analysis in the Agent Orange Case, class certification should be denied because individual issues predominate with respect to many significant aspects of this case, including Plaintiffs' claims, Olin's statute of limitations defense, and Plaintiffs' alleged damages. I) The Court Should Deny Plaintiffs' Motion For Class Certification Under Rule 23(b)(3) Because Individual Issues Predominate With Respect To Plaintiffs' Claims . In Moore, the Second Circuit affirmed the denial of class certification because individual issues predominated over issues common to the putative class. 306 F.3d at 1252-56. In support, the court held that "a common course of conduct is not enough to show predominance, because a common course of conduct is not sufficient to establish liability of the defendant to any particular plaintiff." Id. at 1255. Similarly, Olin's alleged common course of conduct in allegedly depositing waste is not sufficient to establish Olin's liability to any particular plaintiff. Indeed, individual issues predominate because the Court would have to undertake a fact-intensive inquiry to address the elements underlying Plaintiffs' infliction of emotional distress, nuisance and negligence claims.

319 F.3d 910 (7th Cir. 2003) (Plaintiffs' Brief, at p. 16), the court limited certification to whether unlawful contamination occurred, and if so, to its geographical scope. Id. at 911-12. "Whether a particular class member suffered any legally compensable harm and if so in what dollar amount" were individua lized questions that were not appropriate for certification. Id.

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A)

Individual Issues Predominate With Respect To Plaintiffs' Claims For Infliction Of Emotional Distress Because The Court Would Have To Undertake A Fact-Intensive (Plaintiff-By-Plaintiff) Inquiry To Determine To What Extent, If Any, Each P laintiff Suffers Emotional Distress And, If So, Whether Such Emotional Distress Was Caused By Waste Deposited By Olin Or By Various Other Possible Factors .6

In Collins v. Olin Corp., 418 F. Supp.2d 34 (D. Conn. 2006), this Court noted that the "tort of intentional infliction of emotional distress under Connecticut law is comprised of four elements: (1) that the actor intended to inflict emotional distress; or that he or she knew or should have known that emotional distress was a likely result of his or her conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." Id. at 55 (emphasis added). Plaintiffs' claims for intentional infliction of emotional distress are not susceptible to class treatment because individual issues predominate with respect to the causation requirement. Specifically, to determine whether Olin's conduct, rather than various other possible factors, "was the cause" of each putative class member's alleged emotional distress would require a highly individualized analysis concerning the medical history and condition of each putative class member. 7 As a result, courts routinely deny class certification of emotional distress claims. See, e.g., Tri-State Crematory Litig., 215 F.R.D. 660, 698 (N.D. Ga. 2003) (denying certification of claim for intentional infliction of emotional distress because it would require evidence that is "highly individualized and unique to each individual class member"); Satsky, 1996 WL 1062376 at *15 (denying certification in contamination case, in part, because "[e]motional distress claims
6

This section applies to Count VI (Infliction of Emotional Distress) of Plaintiffs' Second Amended Complaint.
7

A highly individualized analysis would also be necessary to establish the fourth factor: "whether the emotional distress sustained by the plaintiff was severe." Indeed, to resolve this factor the Court would once again have to consider the medical history and condition of each putative class member.

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are intractably individual in character. Each person's susceptibility and injury would vary"); Commonwealth of Puerto Rico v. M/V Emily S., 158 F.R.D. 9, 14 (D. Puerto Rico 1994) (denying class certification, in part, because "the alleged class claim for emotional distress . . . is intractably individual in character"); McGuire, 1994 WL 261360 at *7 (denying class certification because "emotional distress claim depend[s] on a wide variety of individual factors"); Sanna v. Delta Airlines, 132 F.R.D. 47, 50 (N.D. Ohio 1990) (denying class certification because "Courts have been hesitant to find `emotional injuries' typical"); Alvarado Morales v. Digital Equip. Corp., 669 F. Supp. 1173, 1185 (D. Puerto Rico 1987), aff'd 843 F.2d 613 (1st Cir. 1988) ("It strains credulity to imagine that any two members of the class could have suffered similar . . . emotional injury which would give rise to common questions of law or fact or typical claims or defenses"); Brown, 1987 WL 9273 at *10 (denying certification in contamination case because "each plaintiff will bring a unique medical history that will provide the basis for his or her individual claim"). The analysis in In re Three Mile Island Litig., 87 F.R.D. 433 (M.D. Pa. 1980) is instructive. Plaintiffs sought to certify a class of persons claiming injuries stemming from emotional distress attributed to the nuclear accident at Three Mile Island. In denying certification, the court observed: The testimony of the three plaintiffs at the certification hearing demonstrates that claims for emotional distress and resulting physical injury are diverse and personal.... Not only will damages have to be assessed on a plaintiff-by-plaintiff basis, so too will the causes of the injuries alleged... Here, the causation element of plaintiffs' injury/emotional distress claims will require individual proof. In effect, the class action would break up into separate suits. 87 F.R.D. at 441 (emphasis added).

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This Court should reach the same conclusion here. First, Plaintiffs have not (and cannot) offer any methodology that could be used to establish on a class-wide basis to what extent each putative class member allegedly suffered emotional distress. 8 Second, admissions made by putative class representatives demonstrate that resolution of Plaintiffs' emotional distress claim would require a highly individualized inquiry that is not susceptible to class treatment. A few examples illustrate this point. In response to Olin's interrogatories, Elias Rochester stated that "he has experienced symptoms of irritability, worry over day to day matters, pessimism about the future, low self esteem, loss of interest and/or decreased participation in significant activities, fatigue or low energy, difficulty falling or staying asleep, restless, unsatisfying sleep and difficulty concentrating or mind going blank."9 However, when asked about this response at his deposition, Mr. Rochester admitted that his emotional stress could be caused by various factors that have absolutely nothing to do with any waste allegedly deposited by Olin: Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A.
8

Do you suffer from fatigue or low energy? Yeah. And do you believe that's related to the alleged contamination? I don't know. It could be, it could be not. What else can it be related to -- work? Could be. Having an 18 month old? It could be. Do you have difficulty falling or staying asleep? Yeah, somewhat. And what do you attribute that to? I have no idea. And how long have you had trouble falling asleep or staying asleep? Going on maybe a year or something. A couple of years probably. But you don't know what you attribute that to? No. I don't know.

Both experts retained by Plaintiffs admitted this point. See Tab 6; Michael Hopkins Depo. at p. 30; Tab 9; Christopher Kerin Depo. at pp. 14-15.
9

See Tab 17; Depo. Ex. 87 at Int. No. 9.

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Q. How about the fatigue or low energy; how long have you suffered from that? A. Since I moved back up here, really. I didn't have that in New York. Q. Do you think the demands, professionally, on you are harder now that you're back in Hamden, then when you were in New York? A. Somewhat, yeah. Q. So that could be a cause of the fatigue or low energy; correct? A. I don't know. Maybe, maybe not. Q. Do you have difficulty concentrating? A. Sometimes. Q. How long is that -- what do you attribute that to? A. I don't attribute it to anything. It's just something that happens. .... Q. Okay. Are there other things going on in your life, that can cause irritability, without going into them? A. Maybe. Maybe it's a combination of things, you know. You know? You know, that's just the word how you define it, you know? 10 Similarly, Eugalyn Wilson admitted that she was angry and irritable well before the discovery of contamination, and therefore, cannot attribute those symptoms solely to contamination: Q. Do you feel you are suffering any physical symptoms as a result of the contamination on your property or in the neighborhood? A. There may be. Q. And what physical symptoms do you think you may be suffering as a result of the contamination in the neighborhood or on your property? A. Just being irritable and angry at times. .... Q. I believe you mentioned earlier that you were angry, irritable starting back in 1998; is that correct? A. Yes. Q. Was that as a result of the contamination concerns in the area? A. I wasn't aware of it, that it had anything to do with it. I'm not sure. 11

10

See Tab 12; Elias Rochester Depo. at pp. 97-100. See also Tab 10; Marc Perry Depo. at p. 107 (testifying that his alleged emotional distress "could be" caused by some of his new "working responsibilities"); Tab 4 Henry Blue Depo. at p. 132 (testifying that his alleged "depression and aggravation can be attributed to other things besides the contamination").
11

See Tab 14; Eugalyn Wilson Depo. at pp. 182-83. See also Tab 8; Maxine Jones Depo. at pp. 153-54 (testifying that she has suffered from "stress, lack of energy, and a couple of other physical symptoms ...

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The above excerpts provide a glimpse of the highly individualized analysis that the Court would have to undertake to determine to what extent, if any, each putative class member actually suffers emotional distress and, if so, whether such emotional distress was caused by waste allegedly deposited by Olin or by various other possible factors. Thus, for all the foregoing reasons, the Court should deny class certification because individual issues predominate with respect to Plaintiffs' claims for infliction of emotional distress. B) Individual Issues Predominate With Respect To Plaintiffs' Claims For Nuisance And Negligence Because The Court Would Have To Undertake A Fact-Intensive (Property-By-Property) Inquiry To Determine To What Extent, If Any, Any alleged Waste At Each Property Originated From Olin Or From Various Other Possible Sources.12

In Collins v. Olin Corp., 418 F. Supp.2d 34 (D. Conn. 2006), this Court noted that to establish a claim for public nuisance, a plaintiff must demonstrate, among other factors, that "the use of the land was unreasonable or unlawful," and that "the existence of the nuisance was the proximate cause of the plaintiffs' injuries and damages." Id. at 52 (emphasis added). Similarly, to prevail on a claim for private nuisance, the "plaintiff must show that the defendant's conduct was the proximate cause of an unreasonable interference with the plaintiff's use and enjoyment of his or her property." Id. at 53. The "proximate causation" requirement also applies to Plaintiffs' negligence claim. See, e.g., Winn. v. Posades, 913 A.2d 407, 411 (Conn. 2007).

starting back in the `90s," -- years before the discovery of contamination -- and that she has "no opinion what is causing those feelings").
12

This section applies to Count I (Negligence), Count II (Gross Negligence/Reckless Conduct); Count IV (Negligence Per Se); Count VIII (Public Nuisance) and Count IX (Private Nuisance) of Plaintiffs' Second Amended Complaint.

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Plaintiffs' claims for nuisance and negligence are not susceptible to class treatment because individual issues predominate with respect to the "proximate causation" and "unreasonable interference" requirements. 1) Individual Issues Predominate With Respect To The Proximate Causation Requirement Relating To Plaintiffs' Claims For Nuisance And Negligence.

Both Martin v. Shell Oil Co., 198 F.R.D. 580 (D. Conn. 2000) and Reilly v. Gould, Inc., 965 F. Supp. 588 (M.D. Pa. 1997) are particularly instructive with respect to the proximate causation requirement associated with Plaintiffs' claims for nuisance and negligence. In Martin, property owners brought various claims, including nuisance and negligence, against Shell for allegedly contaminating their properties. Id. at 582. In denying plaintiffs motion for class certification under Rule 23(b)(3), the court noted that "the proof of causation, while it may involve similar evidence for each of the plaintiffs, will not be identical." Id. at 592. In support, the court recognized that the evidence likely to be submitted at trial with respect to causation would require individualized proof: The defendants have indicated they will argue at trial that there are several other potential sources of MTBE in the area and that groundwater does not move in a predictable fashion, and the plaintiffs themselves have submitted evidence in support of their motion showing that the levels of MTBE in the water of the two named plaintiffs are dramatically different, suggesting that resolving the questions of how the MTBE traveled to each of the plaintiffs' properties and whether there is another source will likely differ as to different sites. 198 F.R.D. at 592. Similarly, in Reilly residents who lived close to a former battery crushing and lead processing plant filed a class action lawsuit because their properties were contaminated with lead. Id. at 593. In denying class certification under Rule 23(b)(3), the court emphasized that lead exposure requires a highly fact- intensive inquiry:

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Although it is well established that the Marjol Battery Plant dealt primarily in the reclamation of lead from spent batteries and that the manner in which this was achieved may have caused the release of lead into the environment, it has also been pointed out by defendant's counsel that there are other prevalent sources of lead emissions. 13 The Centers for Disease Control reports that `[m]any factors can affect the absorption, distribution, and toxicity of lead.' .... The possibility that some class members could have been exposed to lead from other origins results in the need for an individual and highly factually intensive analysis of all plaintiffs involved in this action. 965 F. Supp. at 603-04 (emphasis added). 14 The analogous circumstances in this case compel the same result. In particular, the Court would have to undertake a highly individualized analysis to determine to what extent, if any, there is any contamination on each property that allegedly originated from waste deposited by Olin or from various other possible sources. Testimony by Shannon Windisch Pociu of the Connecticut Department of Environmental Protection (DEP), the expert report of Kenneth Cichon (Olin's expert), and admissions made by Michael Hopkins (Plaintiffs' expert) uniformly support this conclusion.

13

Michael Hopkins (Plaintiffs' expert) admitted this point. Specifically, Mr. Hopkins admitted that during the 1930s and 1940s, there were many different potential sources for le ad, as well as the other substances of concern found in the Newhall neighborhood, such as polyaromatic hydrocarbons, extractable total petroleum hydrocarbons and arsenic. See Tab 6; Hopkins Depo. at pp. 111-121.
14

See also LaBauve, 231 F.R.D. at 673 ("[w]hether a plaintiff's property is contaminated, the source(s) of such contamination, the extent of such contamination, the cause and timing of harm, and the resulting damage (measured in diminution of property value) are all questions that will require pla intiff-by-plaintiff scrutiny"); Millet, 2000 WL 359979 at *13 ("[t]he issue of causation presents a major obstacle for plaintiffs because the "actual cause" of contamination "will have to be addressed on an individual basis") (citations omitted); Thomas, 846 F. Supp. at 1404 ("while there are undoubtedly common issues of law and fact, such as whether [defendant] released TCE into the groundwater, the individual issues so overshadow those in numerosity and complexity to render a class action unhelpful"); Brown, 1987 WL 9273 at *10 ("any determination of causation [with respect to contamination] requires individualized inquiries").

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a)

Testimony By Shannon Windisch Pociu Of The DEP 15

Plaintiffs allege that lead and arsenic are the primary constituents of Olin's alleged waste. See Compl. at ¶ 12. However, testing conducted by the EPA and DEP demonstrates that lead and arsenic did not originate solely from waste allegedly deposited by Olin. From May 24, 2001 to June 6, 2001, the EPA inspected 61 properties in the Newhall neighborhood. 16 Based on that inspection, the EPA concluded that five homes had contaminant levels that exceeded the EPA guidelines for immediate action. 17 At the same time, the EPA concluded that no further action was necessary with respect to two other houses that also had lead concentrations that exceeded the EPA's guidelines, because the EPA had "determined that the most likely cause of elevated lead in soil is lead paint rather than landfill material."18 For example, with respect to the residence of Ellecia Sims (a putative class representative), the EPA stated: EPA depth samples indicate very low lead. No paint chips visible in soil. EPA believes lead is from paint, not landfill material. This theory is supported by condition of next door neighbor's house (on corner of Newhall and Morse). Neighbor's is a historic home. Paint was sanded from house several years ago. Mr./Mrs. Sims report that paint removal was messy, with visible dust in their yard. They also report that asbestos shingles were removed from neighbor's home apparently without proper precautions. Mr./Mrs. Sims very concerned about their grandchildren's potential exposures. 19

15

From the fall of 2000 until recently, Shannon Windisch Pociu worked as the "primary project manager on the site" on behalf of the DEP. See Tab 15; Shannon Windisch Pociu Depo. at pp. 165-66.
16 17 18 19

See Tab 18; Depo. Ex. 158 at HAM05285. Id. Id. at HAM05286.

Id. at HAM05285 (emphasis added). Based on the EPA's findings, any alleged emotional distress suffered by the Sims was not caused by any alleged contamination deposited by Olin, but rather, by lead paint from their neighbor's house. This example further highlights the individual analysis that would be necessary to address proximate causation with respect to Plaintiffs' clai s for infliction of emotional m distress.

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The DEP reached a similar conclusion based on testing conducted at the residence of Sonia Powell (another putative class representative). On December 19, 2003, the DEP sent Ms. Powell a report summarizing surface soil screening at 137-139 Shepard Street. 20 The report concluded with the following summary: In summary, no waste material or debris indicative of historic filling practices was observed at the 137-139 Shepard Street property. PAHs in surface (0-3") soils at the property are present at concentrations below the applicable RDEC. Concentrations of arsenic and lead in surface (0-3") soils exceed the RDEC. In one instance (SS-110-4), the concentration of lead is more than twice the RDEC. Based on the lack of physical evidence and on the chemical data described herein, the presence of arsenic and lead at concentrations above the RDEC do not appear to be related to historic filling. 21 When present ed with the foregoing evidence, Shannon Windisch Pociu of the DEP testified that "the mere fact you have lead or arsenic present in a place, doesn't necessary mean it originated from the landfill but it could have come from other sources such as pesticides or lead paint."22 As a result, Ms. Pociu testified that it would be necessary to undertake a highly individualized analysis with respect to each property to establish the origin of any alleged contamination: Q. Would you agree with me that through the course of the DEP's investigation into the site it determined that there were contaminants, different types of contaminants throughout the site, first of all? A. Yes. Q. And am I correct that the DEP determined that the contaminants originated potentially from different sources, correct? A. Yes. Q. Am I correct that the DEP determined that some of the contaminants originated from an industrial waste, correct? A. Yes. ....

20 21 22

See Depo. Ex. 470 at Bates # 1685. Id. at Bates # 1689 (emphasis added). See Tab 15; Shannon Windisch Pociu Depo. at pp. 139-40.

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Q. Okay. Am I correct you discovered instances where there were contaminants from household waste? A. Yes. Q. And am I correct that the DEP identified instances where contaminants were from lead paint? A. Yes. Q. And am I correct that DEP determined there were instances where contaminants were from pesticide use? A. Yes, I believe so. Q. And am I correct that one would have to go and look at data specific for each particular property to evaluate to what extent any contaminants in that property originated from any one of these potential sources? Mr. Rainer: Objection A. Yes.23 The foregoing testimony establishes that the Court would need to conduct a fact- intensive analysis (property-by-property) to determine to what extent, if any, there is any contamination on each property that allegedly originated from waste deposited by Olin or from various other possible sources. b) The Expert Report Of Kenneth Cichon

The expert report of Kenneth Cichon (Olin's expert) supports the same conclusion. Kenneth Cichon is a geologist who has worked as an environmental professional in the State of Connecticut since 1975. 24 Since 2001, Mr. Cichon (while employed with Malcolm Pirnie, Inc. and subsequently by Mactec Engineering and Consulting, Inc.) has worked extensively on issues arising out of the discovery of contamination in the Newhall neighborhood. 25 Based on his expertise and direct knowledge relating to the investigation surrounding the discovery of contamination in the Newhall neighborhood, Mr. Cichon reached the following conclusions in his expert report:

23 24 25

See Tab 15; Shannon Windisch Pociu Depo. at pp. 344-45 (emphasis added). See Tab 1; Expert Report of Ken Cichon at p. 1. See Tab 1; Expert Report of Ken Cichon at p. 1 and attached resume.

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· ·

"There exists considerable variability in the occurrence of fill types throughout the Contaminated Properties Subclass"; "There are insufficient test data to conclude what type of fill ma terial is present in each property of the Contaminated Property Subclass and to what extent, if any, such fill is attributable to Winchester Repeating Arms"; and "It would be necessary to collect and analyze additional data with respect to each property in the Contaminated Properties Subclass to determine to what extent, if any, contamination present on each property is attributable to Winchester Repeating Arms versus other sources."26

·

Notably, Michael Hopkins (Plaintiffs' expert) admits that these conclusions are accurate. c) Admissions Made By Michael Hopkins

In his deposition, Michael Hopkins (Plaintiffs' expert) made several admissions that further establish that individual issues predominate with respect to proximate causation relating to Plaintiffs' claims for nuisance and negligence. First, Mr. Hopkins admitted that additional sampling is necessary to delineate the full extent of fill in the Newhall neighborhood (including in the Contaminated Properties Subclass): Q. Okay. So focusing on the study area that's the subject of your expert report, sir. And my question to you is you identified in '04 to the DEP a concern about the fact that there was data gaps, correct? A. Correct. Q. Okay. And my question is are there any data gaps still present in your opinion with respect to the study area as referenced in your expert report? A. The answer would be yes. Q. And additional sampling with respect to those data gaps in the study area as used in your expert report would be helpful to delineate the extent of fill, correct? A. Yes. 27 Second, Mr. Hopkins admitted that with respect to any properties in the Newhall neighborhood (including in the Contaminated Properties Subclass) where only "Disturbed Soil"
26

See Tab 1; Expert Report of Ken Cichon at pp. 1-2 (emphasis added). In his report, Mr. Cichon states that he did not attempt "to distinguish between fill which may have been placed by Winchester Repeating Arms before or after 1932." Id. at p. 1, n. 1.
27

See Tab 6; Hopkins Depo. at pp. 23-26.

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was present, "some additional information would be necessary to be confident of what the source of the material was."28 Third, Mr. Hopkins admitted that the foregoing conclusion also applies to any other properties in the Contaminated Properties Subclass where additional sampling may establish that only Disturbed Soil is present: Q. With respect to the 13 properties in the study area where there has been no sampling, am I correct, sir, that to the extent additional testing were done at those properties it may reveal the presence of just disturbed soil? Mr. Rainer: Objection. A. It could reveal the presence of disturbed soil as again defined by Malcolm Pirnie. Q. And to the extent it would reveal just 100 percent disturbed soil as defined by Malcolm Pirnie, am I correct that you would have to undertake additional investigation, analysis of that data before you could draw any conclusions to what extent, if any, that disturbed soil originated from Winchester, correct? Mr. Rainer: Objection. A. If I was provided with just information that said it was disturbed soil, that would not be enough information to speculate as to the source.... I would need to see more than just the fact it was disturbed soil to provide an opinion as to the source. 29 Finally, and most importantly, Mr. Hopkins admitted that he cannot testify to a reasonable degree of engineering certainty that to the extent any contamination is located on a particular property, that such contamination originated from Olin: Q. Sitting here today you're not in a position to say within a reasonable degree of engineering certainty to the extent there is fill in each and every property in the study area that it originated from Winchester, correct? A. With that originated from Winchester on there, that would be correct.30 Thus, the testimony of Shannon Windisch Pociu of the DEP, the expert report of Kenneth Cichon, and admissions made by Michael Hopkins uniformly support the same conclusion: Individual issues predominate with respect to the proximate causation requirement relating to

28 29 30

See Tab 6; Hopkins Depo. at p. 87. See Tab 6; Hopkins Depo. at pp. 94-95. See Tab 6; Hopkins Depo. at p. 126.

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Plaintiffs' claims for nuisance and negligence, because additional sampling and testing ­ property-by-property ­ would be necessary to determine to what extent, if any, there is any contamination on each property that allegedly originated from waste deposited by Olin or from various other possible sources. 2) Individual Issues Also Predominate With Respect To The Unreasonable Interference Requirement Associated With Plaintiffs' Claims For Nuisance.

Church v. General Elec. Co., 138 F.Supp.2d 169 (D. Mass. 2001) is particularly instructive with respect to the "unreasonable interference" requirement associated with Plaintiffs' claims for nuisance. In Church, homeowners brought an action against GE for contaminating their property with PCBs. In denying class certification of plaintiffs' nuisance claim under Rule 23(b)(3) the court stated: To judge whether there has been a harmful enough invasion by PCBs for liability to attach under nuisance...., an expert must necessarily measure the extent of the contamination of the individual properties and their potential exposure to future contamination. The individual characteristics of each plaintiff's property are crucial to this analysis.... These differences pertain not just to damages, as plaintiffs argue, but to the threshold question of whether the contamination constitutes a nuisance.... A Rule 23(b) is therefore not appropriate in this case. Id. at 182. See also Satsky, 1996 WL 1062376 at *15 (denying class certification under Rule 23(b)(3) of nuisance claim because the "amount of contamination on a class member's property and the question of whether the contamination was at a hazardous level is not a question common to the class because even if it is answered as to one class member, it is not answered as to all class members.").

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The same individualized issues are present here. Indeed, in Collins, this Court noted that to establish unreasonable interference would require an evaluation of the circumstances of "each individual case": Whether the interference is unreasonable depends upon a balancing of the interests involved under the circumstances of each individual case. In balancing the interests, the fact finder must take into consideration all relevant factors, including the nature of both the interfering use and the use and enjoyment invaded, the nature, extent and duration of the interference, the suitability for the locality of both the interfering conduct and the particular use and enjoyment invaded, whether the defendant is taking all feasible precautions to avoid any unnecessary interference with the plaintiff's use and enjoyment of his or her property, and any other factors that the fact finder deems relevant to the question of whether the interference is unreasonable. 418 F. Supp.2d at 54, n. 24. Resolution of the foregoing factors would require a highly individualized analysis. For example, to determine whether each putative class members can demonstrate an unreasonable interference with respect to his or her property, the fact- finder would have to consider evidence relating to: · · The "duration" of time that each putative class member has owned his or her property; The "extent" of contamination at each individual property (since the level of contamination will directly influence the ability of each plaintiff to enjoy his or her property); and The "particular use and enjoyment invaded" with respect to each putative class member.

·

Thus, for all these reasons, the Court should deny class certification because individual issues predominate with respect to Plaintiffs' claims for nuisance and negligence.

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II)

The Court Should Deny Plaintiffs' Motion For Class Certification Under Rule 23(b)(3) Because, Assuming The Court Denies Olin's Pending Motion For Summary Judgment Based On Statute Of Limitations, Then Individual Issue s Would Predominate Because The Court Would Have To Conduct A Fact-Intensive Inquiry Concerning The Extent Of Knowledge Of Each Putative Class Member To Determine Whether Their Claims Are Time -Barred. On May 10, 2007, Olin filed a motion for summary judgment based on statute of

limitations. 31 In support, Olin established that it is undisputed that by April 18, 2001 (at the very latest), Plaintiffs knew, or reasonably should have known, that their alleged damages were caused or contributed to by hazardous substances allegedly disposed of by Olin. As a result, since Plaintiffs waited more than two years (until May 2, 2003) to serve Olin with their Complaint, claims by the Stigma Subclass and Contaminated Properties Subclass are timebarred. Olin's motion for summary judgment should be granted. However, in the event the Court denies the motion, then it follows that individual issues would predominate with respect to Olin's statute of limitations defense. Specifically, the Court would need to conduct an individualized inquiry -- focusing on the extent of knowledge of each putative class member. Many courts, including the Second Circuit, hold that the need to conduct such an individualized inquiry regarding each putative class member's knowledge precludes class certification. In Initial Public Offering, the Second Circuit set forth the legal standards that govern the Rule 23 requirements. 471 F.3d at 32-42. In light of these standards, the Second Circuit concluded that remand was "not appropriate because the Plaintiffs' own allegations and evidence demonstrate that the Rule 23 requirement of predominance of common questions over individual questions cannot be met under the standards as we have explicated them." Id. at 42. In support,

31

See Docket Nos. 208 and 209.

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the court emphasized that individual issues predominated with respect to the extent of "knowledge" of putative class members: There is no dispute that a section 10(b) claimant `must allege and prove' that the claimant traded' in ignorance of the fact that the price was affected by the alleged manipulation." .... The Plaintiffs' allegations, evidence, and discovery responses demonstrate that the predominance requirement is defeated because common questions of knowledge do not predominate over individual questions. The claim that lack of knowledge is common to the class is thoroughly undermined by the Plaintiffs' own allegations as to how widespread was knowledge of the alleged scheme.... [because] it is this widespread knowledge that would precipitate individual inquiries as to the knowledge of each member of the class, even as redefined. 471 F.3d at 43-44 (emphasis added). The analogous circumstances in this case compel the same result. Here, as in Initial Public Offering, Plaintiffs cannot satisfy Rule 23(b)(3)'s predominance requirement because in their pleadings to the Court, Plaintiffs have taken the position that a highly individualized analysis would be required to resolve the statute of limitations issue : There is no clearer question of fact than what a particular plaintiff knew or should have known at a particular time , the determination of which is essential to decide whether the applicable statute of limitations set forth in Conn. Gen. Stat. §52-577c(b) has run. .... When a plaintiff `discovered or in the exercise of reasonable care should have discovered property contamination so as to begin the running of the statute of limitations under Conn. Gen. Stat. § 52-577c is an extremely fact specific determination. 32 Thus, consistent with Initial Public Offering, class certification should be denied because, assuming the Court denies Olin's pending motion for summary judgment, then it follows (as

32

See Docket No. 54; Plaintiffs' Memorandum of Law in Opposition to Motions to Dismiss filed by Defendants Town of Hamden and Olin Corporation at pp. 52-53 and 55 (emphasis added).

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Plaintiffs previously admitted), that an "extremely fact specific determination" would be necessary to determine whether each putative class member's claims are time-barred. 33 When presented with similar circumstances, courts routinely deny class certification because individual issues predominate with respect to the resolution of the statute of limitations defense. See, e.g., Barnes v. American Tobacco Co., 161 F.3d 127, 149 (3rd Cir. 1998) ("we believe that determining whether each class member's claim is barred by the statute of limitations raises individual issues that prevent class certification"); Broussard v. Meineke Disc. Muffler Shops, Inc., 155 F.3d 331, 342 (4th Cir. 1998) ("when the defendant's `affirmative defenses (such as ... the sta