Underscoring the importance of pleading actual injury in a toxic tort class action, the U.S. Court of Appeals for the Tenth Circuit dismissed Oklahoma class claims that were based only on “reasonable concern” of future injury and a summary statement of alleged health effects.  See Reece v. AES Corp., No. 14-7010 (10th Cir. Apr. 20, 2016). 

Putative class Plaintiffs alleged injuries relating to Defendants’ disposal of coal combustion waste and wastewater generated in oil and gas drilling operations.  On Defendants’ motion, the trial court dismissed with prejudice Plaintiffs’ strict liability, negligence, and negligence per se claims.

On appeal, the Tenth Circuit upheld the District Court’s decision, noting that Oklahoma law requires pleading an actual injury.  Here, Plaintiffs’ “reasonable concern” about possible exposure to fly ash particles and groundwater contamination from drilling wastewater was insufficient to state a claim: “Alleging reasonable concern about an injury occurring in the future is not sufficient to allege an actual injury in fact.”   Id. at 48.  The court also noted that Plaintiffs did not plead any examples of injuries to specific Plaintiffs:  “Their summary statement of health effects is nothing more than a rote recitation of general harms” and is therefore insufficient to satisfy the injury element of Plaintiffs’ claims.  Id. at 49-50.