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Class Action Defense Cases–Cole v. Asarco: Oklahoma Federal Court Denies Class Action Treatment Of Class Action Seeking Medical Monitoring And Finds Proposed Property Owner Class Did Not Define A Cognizable Class

Class Action Certification not Warranted where Putative Class Action Complaint Prayed for Medical Monitoring of Individuals who had “Disavowed” any Present Injury and where Proposed Definition of Property Owner Class was not Administratively Feasible Oklahoma Federal Court Holds

Plaintiffs filed a putative class action against various defendants, including Asarco Incorporated and Gold Fields Mining, alleging nuisance and praying for medical monitoring of individuals covered by the class action; the class action complaint asserted that defendants mined lead and zinc along a 40-square mile stretch of Tar Creek in Oklahoma, and that the byproducts caused by that mining activity “caused air, surface and ground water and soil contamination of [plaintiffs’] property, exposing residents to unsafe levels of lead, heavy metals and other toxins.” Cole v. Asarco Inc., ___ F.Supp.2d ___ (N.D. Okla. April 2, 2009) [Slip Opn., at 1-2]. According to the allegations underlying the class action, these contaminants present “a risk of neurological damage, including cognitive and verbal function deficits, decreased educational performance, learning difficulties, aggression, anti-social behavior and attention deficits,” and that young children, under age 6, are particularly at risk. Id., at 2. Plaintiffs filed a motion to have the litigation certified as a class action, id., at 3. Asarco filed for bankruptcy protection, and plaintiffs dismissed Asarco with prejudice, id., at 3-4. The remaining defendants opposed class action treatment, and the district court agreed with defense attorneys that class action certification was not warranted.

After summarizing the well settled rules governing class action certification under Rule 23, see Cole, at 5-7, the district court began its analysis with plaintiffs’ medical monitoring class, which was “based on Oklahoma’s common law of nuisance,” id., at 7. While neither the parties nor the court could find any state law authority on the issue of medical monitoring, the federal court observed that “Oklahoma law requires plaintiffs to demonstrate an existing disease or physical injury before they can recover the costs of future medical treatment that is deemed medically necessary,” and in this case the named plaintiffs specifically “disavowed any injury.” Id., at 8. Further, Tenth Circuit authority “casts doubt” on the medical monitoring as a permissible remedy, id. (citations omitted). Accordingly, the district court denied class action certification of the medical monitoring class. Id., at 9. And with respect to the proposed “property owner” class, the district court concluded that “identification of members would not be administratively feasible.” Id., at 9. Specifically, the court found that “the proposed class is untenable with respect to [the proposed class definition] of persons who ‘owned or had an interest in real property.’” Id., at 10-11. Because class action certification requires that there be a “cognizable class,” the federal court found that Rule 23’s prerequisites for class action treatment had not been met. Id., at 11. Accordingly, the court denied plaintiffs’ motion for class certification. Id., at 15.

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