On July 7, 2009, a tank failure at a chemical facility in St. Charles Parish resulted in the release of a mixture of three chemicals: Ethyl Acrylate (“EA”), Hydroquinone (“HQ”) and Methyl Ether of Hydroquinone (“MEHQ”). Plaintiffs filed a class action lawsuit for releasing a chemical that was a “possible carcinogen and should be considered hazardous at all times in any concentration.” In May 2011, the trial court certified the class, and the Fourth Circuit subsequently affirmed. After discovery was complete, the defendants filed a joint motion to decertify the class. The trial court denied the motion, and the defendants appealed once again to the Fourth Circuit.

The “law of the case” doctrine does not prohibit an appellate court—that has previously reviewed a class certification decision—from reviewing the class certification on a subsequent appeal when the court is presented with new issues or questions as to whether certification was proper. Moreover, neither the trial court’s initial order of certification nor the appellate court’s opinion affirming the original certification bars reconsideration of the propriety of maintaining the class if the fundamental nature of its cause of action changes. In the absence of materially changed or clarified circumstances, or the occurrence of a condition on which the initial class ruling was expressly contingent, courts should not entertain a series of re-arguments on the issues under the guise of a motion to reconsider the class ruling. Determining whether there has been a material change in the facts or circumstances requires comparing pre-certification and post-certification evidence.

In this instance, the defendants argued that their post-certification air dispersion model found zero contamination in some areas within the geographic class zone, and this in turn contradicted the post-certification deposition testimony of plaintiff’s toxicologist who contended that contamination levels were higher than what the air model demonstrated. The Fourth Circuit affirmed the trial court’s decision to deny the motion to decertify the class. The appellate court found that the air dispersion model, which demonstrated zero contamination in some areas, was not grounds for decertification, but rather should be resolved by redefining the class. Furthermore, the model did not contradict plaintiffs’ expert’s testimony that general causation was established—plaintiffs’ expert concluded that releasing EA, HQ, and MEHQ can cause damage consistent with the class definition, even if within the allowable contamination levels. Finally, the court concluded that decertification would unfairly prejudice the plaintiffs in recovering damages in this type of case involving small claims.

Guidry v. Dow Chemical Co.

Juan C. Obregon
jobregon@mblb.com