Exemplifying the reluctance of many courts to allow toxic tort cases to proceed as class actions, a federal judge in Arkansas denied certification of a putative class of neighboring landowners who claimed the Defendant’s failure to adequately remediate contamination damaged their property values. See Day v. Whirlpool Corp., Case No. 2:13-CV-02164 (W.D. Ark. Dec. 3, 2014).

Whirlpool Corporation discovered the presence of elevated concentrations of triochloroethylene (“TCE”) in the soil and groundwater of its Fort Smith, Arkansas manufacturing plants in the 1980s, and subsequently agreed to investigate and remediate impacted groundwater at the northern portion of its facility. Further investigations revealed that the TCE plume extended beyond the Whirlpool facility. As a result, in 2013, the County assessor reduced the tax value of multiple properties located atop of or proximate to the plume.

Plaintiff filed suit in state court, asserting tort and statutory claims, and Whirlpool promptly removed the action to the Western District of Arkansas. Plaintiff then filed an amended complaint, joined by an additional plaintiff class representative, and a joint motion to certify and approve a class settlement. 

The court denied class certification, finding among other issues that Plaintiffs had not shown that the putative subclass members are so numerous that joinder would be impractical. Specifically, Plaintiffs identified a total of 104 properties impacted by TCE contamination, but did not identify the number of property owners in each putative subclass. The court also expressed doubts as to whether a class action would be more efficient than individual suits, noting that many individuals had opted out of the class and already were involved in separate litigation in the same forum. Because the court failed to certify the class, it declined to further analyze the proposed class settlement agreement.