On July 16, 2018, the United States Court of Appeals for the Sixth Circuit affirmed an Ohio federal court’s certification of a so-called “issue class” under Federal Rule of Civil Procedure 23(c)(4) in Martin v. Behr Dayton Thermal Products LLC, thereby becoming one of the few courts that have certified a Rule 23(c)(4) issue class in a toxic tort action. By joining certain circuits that have adopted a “broad” approach to issue classes, the Sixth Circuit has allowed plaintiffs to proceed on a class basis by merely showing that common questions predominate over individualized questions with respect to seven issues. The court thus affirmed the district court’s conclusion that individualized issues of causation, injury, and damages could be reserved for follow-on proceedings—a ruling that may serve as persuasive authority for future toxic tort plaintiffs who seek to certify a class without having to establish a defendant’s liability to any individual class member with common proof.

BACKGROUND -

In 2008, thirty residents of the McCook Field neighborhood of Dayton, Ohio filed suit against four corporate defendants—Behr Dayton Thermal Products LLC; Behr America, Inc.; Chrysler Motors LLC; and Aramark Uniform & Career Apparel, Inc.—alleging that the companies had contaminated the groundwater beneath their properties with carcinogenic volatile organic compounds (VOCs). Although the plaintiffs had access to drinking water from a municipal water source, they alleged that the chemicals in the groundwater exceeded regulatory safe levels and created a risk of VOC vapor intrusion in their homes and buildings. They sued defendants on behalf of a class encompassing 540 properties, raising claims such as trespass, nuisance, strict liability, and negligence.