184 F.R.D. 311 (C.D.Cal. 1998), CV 97-1554ABC(RCX), O'Connor v. Boeing North American, Inc.

Docket Nº:CV 97-1554ABC(RCX).
Citation:184 F.R.D. 311
Opinion Judge:COLLINS, District Judge.
Party Name:Lawrence O'CONNOR, et al., Plaintiffs, v. BOEING NORTH AMERICAN, INC., et al., Defendants.
Attorney:A. Barry Cappello, J. Paul Gignac, Mikal J. Apenes, Cappello & McCann, Santa Barbara, CA, Tina B. Nieves, Hector G. Gancedo, Gancedo & Nieves, Pasadena, CA, for plaintiffs. John A. Reding, William W. Schofield, Barry N. Endick, Peter C. Meier, Paul, Hastings, Janofsky & Walker, San Francisco, CA,...
Case Date:July 13, 1998
Court:United States District Courts, 9th Circuit, Central District of California

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184 F.R.D. 311 (C.D.Cal. 1998)

Lawrence O'CONNOR, et al., Plaintiffs,

v.

BOEING NORTH AMERICAN, INC., et al., Defendants.

No. CV 97-1554ABC(RCX).

United States District Court, C.D. California, Los Angeles Division.

July 13, 1998

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Past and present residents who lived near nuclear testing facilities brought action against owners and operators of facilities, based on alleged release of radioactive contaminants and/or hazardous, non-radioactive substances from facility. After motion for class certification was denied, 180 F.R.D. 359, plaintiffs filed amended complaint, and again sought class certification. The District Court, Collins, J., held that: (1) proposed classes of persons who lived, worked, and/or owned real property in bounded geographic area into which substances had allegedly been discharged satisfied numerosity requirement for class certification; (2) typicality, commonality, and adequacy of representation requirements were satisfied; (3) claims by residents and workers, who sought, among other relief, establishment of medical monitoring program, was suitable for certification on basis that party opposing class had acted or refused to act on grounds generally applicable to class; and (4) class action would be certified as superior to other available methods of resolution with respect to claims by property owners.

Motion granted.

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A. Barry Cappello, J. Paul Gignac, Mikal J. Apenes, Cappello & McCann, Santa Barbara, CA, Tina B. Nieves, Hector G. Gancedo, Gancedo & Nieves, Pasadena, CA, for plaintiffs.

John A. Reding, William W. Schofield, Barry N. Endick, Peter C. Meier, Paul, Hastings, Janofsky & Walker, San Francisco, CA, for defendants.

ORDER RE: PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

COLLINS, District Judge.

Plaintiffs' motion for class certification came on regularly for hearing before this Court on July 13, 1998. After reviewing the materials submitted by the parties, argument of counsel, and the case file, it is hereby ORDERED that Plaintiffs' motion is GRANTED.

I. Background

The factual background and procedural posture of this case are well known to the parties and to the Court and, therefore, need not be recited at length here. On October 20, 1997, the Court denied, without prejudice, Plaintiffs LAURENCE O'CONNER et al.'s (" Plaintiffs" ) motion for class certification of their action against Defendants BOEING NORTH AMERICAN, INC. and ROCKWELL INTERNATIONAL CORPORATION (" Defendants" ) and granted Plaintiffs leave to amend their Second Amended Complaint. The Court's October 20, 1997 Order provided Plaintiffs with a detailed analysis of its concerns relating to class certification of this action. In response, Plaintiffs filed a Third Amended Complaint on December 22, 1997 (" TAC" ). Subsequently, on January 26, 1998, Defendants filed a motion to dismiss and to strike portions of Plaintiff's TAC, which the Court denied in part, and granted in part on March 9, 1998.

At the March 9, 1998 hearing of Defendants' motion to dismiss, the Court granted Plaintiffs leave to file a Fourth Amended Complaint (" FAC" ) and ordered Plaintiffs to file a renewed motion for class certification thereafter. Additionally, the Court granted Defendants an extension of time to respond to Plaintiffs' FAC so as to enable the Court to first determine the class certification issue before hearing any further motions. On March 30, 1998, Plaintiffs filed their FAC and on April 15, 1998, the instant motion for class certification (" Motion" ). Defendants filed their opposition to Plaintiffs' Motion on May 18, 1998 (" Opposition" ). On June 15, 1998, Plaintiffs filed their reply (" Reply" ).

II. Class Allegations

Plaintiffs bring this action on their own behalf and/or as representatives of the classes they seek to certify based on activities conducted by Defendants at the Santa Susana Field Laboratory (" SSFL" ), the Canoga Facility (" Canoga" ), the De Soto Facility (" De Soto" ), and the Hughes Facility (" Hughes" ) (collectively, the " Rocketdyne Facilities" ), resulting in the alleged release of:

radioactive contaminants and hazardous, non-radioactive substances, including, but not limited to, chromium, plutonium, uranium, beryllium, hydrazine, cesium and tritium, and carcinogenic chemical compounds, including hexavalent chromium, tricholoroethylene (" TCE" ) and ammonium perchlorate, as well as other toxic solvents, into the environment and into the air, soil and ground water

FAC, ¶ 2. Plaintiffs allege that, as a result of Defendants' release of the above chemicals, Plaintiffs have been significantly exposed to radioactive and hazardous substances, increasing Plaintiffs' risk of contracting serious latent diseases such as cancer. Id. at ¶ 4. In addition, Plaintiffs allege that their person and/or real property has been injured by

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Defendants' releases of chemicals into the environment, the continuing contamination of Plaintiffs' property, the proximity of Plaintiffs' property to the Rocketdyne Facilities, and the continuing health hazards posed by the Rocketdyne Facilities. Id. at ¶ 3.

Plaintiffs Lawrence O'Connor, Margaret O'Connor, Robert Grandinetti, Donald Reed, William Rueger, Mary Jane Vroman, Harold Samuels and Joyce Samuels (" Representative Plaintiffs" ) 1 seek to represent three separate classes, defined as follows:

a. Class I: " All persons: (1) who presently reside or work in the Contamination Area or who, at any time since 1946, have resided or worked in the Contamination Area; and (2) who have not been diagnosed with a type of cancer or other serious illness or disease which may be attributed to exposure to the radioactive contaminants and/or hazardous, non-radioactive substances released from the Rocketdyne Facilities."

b. Class II: " All persons who own real property located within the Contamination Area."

c. Class III: " All persons who presently reside or work in the Contamination Area and/or who own real property located within the Contamination Area."

FAC, ¶ 92. Defendants' present or former employees are excluded from Class I and Defendants, their parents, subsidiaries, divisions and affiliates are excluded from Classes II and III. Id. at ¶ ¶ 93-94. The Contamination Area that is part of the above class definitions " consists of a geographic region within the greater San Fernando and Simi Valley area through which radioactive contaminants and/or hazardous, non-radioactive substances released from the Rocketdyne Facilities were dispersed by means of air currents, surface water runoff, and subsurface groundwater." Id. at ¶ 91. The geographic boundaries of the Contamination Area are defined by " plumes" mapped out by Plaintiffs' experts.2 The Representative Plaintiffs for Class I seek (1) declaratory relief that " Defendants' discharge of radioactive contaminants and/or hazardous, non-radioactive substances into the environment from the Rocketdyne Facilities is unlawful and violates both federal and state law" ; and (2) " the establishment of a comprehensive, court-supervised program of medical monitoring designed to ensure the early detection of any latent diseases, illnesses and/or other health problems for members of Class I who, as a result of their exposure to the radioactive contaminants and/or hazardous, non-radioactive substances released into the environment form the Rocketdyne Facilities, have an increased risk of such health problems." FAC at 67:15-25.

The Representative Plaintiffs for Classes II and III seek mandatory injunctive relief requiring Defendants to:

(1) make public all information in their possession, custody or control necessary to alert class members to the risks posed by the operation of the Rocketdyne Facilities;

(2) refrain from discharging radioactive contaminants and/or hazardous, non-radioactive substances into the environment from the Rocketdyne Facilities; and

(3) clean up the conditions caused by Defendants' release of radioactive contaminants and/or hazardous, non-radioactive substances into the environment from the Rocketdyne Facilities.

FAC at 68:6-14. Both classes also seek punitive and exemplary damages to be determined at trial. Id. at 17-18. Representative Plaintiffs for Class II pray separately for relief in the form of compensatory damages.

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Id. at 68:4-5; 17-18. The Representative Plaintiffs for Class III also separately seek response costs to the extent permitted under the Comprehensive Environmental Response Compensation Liability Act, 42 U.S.C. § 9659 (" CERCLA" ) and applicable law, as well as for an order requiring Defendants to disgorge and restore to the Class III members all wrongfully obtained monies as a result of Defendants' alleged " unfair, deceptive and unlawful practice of discharging radioactive contaminants and hazardous, non-radioactive substances into the environment surrounding the Rocketdyne Facilities." Id. at 68:16; 19-24.

III. Discussion

A. Standard

Class actions are governed by Federal Rule of Civil Procedure 23 (" Rule 23" ). The party seeking class certification bears the burden of demonstrating that all four prerequisites of Rule 23(a) and at least one of the requirements of Rule 23(b) have been met. Rex v. Owens, 585 F.2d 432, 435 (10th Cir.1978); Doninger v. Pacific Northwest Bell, Inc., 564 F.2d 1304, 1308 (9th Cir.1977); Gillibeau v. Richmond, 417 F.2d 426, 432 (9th Cir.1969); see also 7A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 1759 at 102-04 (1986) ( " Wright, Miller, & Kane" ). However, whether to certify a class is within the " trial court's considered...

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