223 F.R.D. 471 (S.D.Ohio 2004), 03CV-079, Bentley v. Honeywell Intern., Inc.

Docket Nº:03CV-079.
Citation:223 F.R.D. 471
Opinion Judge:MARBLEY, District Judge.
Party Name:Suzanne BENTLEY, et al., Plaintiffs, v. HONEYWELL INTERNATIONAL INC., et al., Defendants.
Attorney:William Robert Jacobs, Cincinnati, OH, Anne E. Viner, Michael D. Hayes, Norman B. Berger, Varga, Berger, Ledsky, Hayes & Casey, Chicago, IL, David J. Fish, Edward J. Manzke, Shawn M. Collins, The Collins Law Firm PC, Naperville, IL, for Plaintiffs. Mark Gerard Kobasuk, Robert Joseph Parker, Taft,...
Case Date:September 23, 2004
Court:United States District Courts, 6th Circuit, Southern District of Ohio

Page 471

223 F.R.D. 471 (S.D.Ohio 2004)

Suzanne BENTLEY, et al., Plaintiffs,

v.

HONEYWELL INTERNATIONAL INC., et al., Defendants.

No. 03CV-079.

United States District Court, S.D. Ohio, Eastern Division.

September 23, 2004

Page 472

[Copyrighted Material Omitted]

Page 473

William Robert Jacobs, Cincinnati, OH, Anne E. Viner, Michael D. Hayes, Norman B. Berger, Varga, Berger, Ledsky, Hayes & Casey, Chicago, IL, David J. Fish, Edward J. Manzke, Shawn M. Collins, The Collins Law Firm PC, Naperville, IL, for Plaintiffs.

Mark Gerard Kobasuk, Robert Joseph Parker, Taft, Stettinius & Hollister, Cincinnati, OH, Alison C. Conlon, Brian W. Lewis, Ethan A McKittrick, H. Roderic Heard, Wildman, Harrold, Allen & Dixon, Chicago,

Page 474

IL, Daniel Jerome Buckley, Mark Alan Norman, Sandra Jo Anderson, Vorys, Sater, Seymour & Pease, Columbus, OH, Garrett B. Johnson, Helen E. Witt, Thomas Edwin Dutton, Kirkland & Ellis, Chicago, IL, for Defendants.

Ellen M. Brooks, John Julius Fahsbender, Craig L. Moore, Benesch, Friedlander, Coplan & Aronoff LLP, Cleveland, OH, Amy J. Kappeler, Cary R. Perlman, Latham & Watkins LLP, Chicago, IL, John Elliot Jevicky, Dinsmore & Shohl, Cincinnati, OH, Stephen Charles Fitch, Chester, Willcox & Saxbe, Columbus, OH, E. Sean Griggs, Barnes & Thornburg, Indianapolis, IN, Diane Leslie Gentile, Cooper & Gentile Co., Dayton, OH, Paul W. Schroeder, Jones, Day, Reavis & Pogue, Chicago, IL, John A. Rego, Jones, Day, Reavis & Pogue, Cleveland, OH, for ThirdParty Defendants.

OPINION & ORDER

MARBLEY, District Judge.

I. INTRODUCTION

This matter is before the Court on Plaintiffs's Motion for Class Certification. Lead Plaintiffs,1 Suzanne and Gerald Bentley (the " Bentleys" ) and Recinda and William Bowshier (the " Bowshiers" ) (collectively " Plaintiffs" or " named Plaintiffs" ), filed this action against Defendants, Honeywell International, Inc. (" Honeywell" ) and Siemens Energy & Automation, Inc. (" Siemens" ) (collectively " Defendants" ) for allegedly contaminating Plaintiffs's domestic water supplies and the groundwater underlying Plaintiffs's properties with toxic chemicals released from Defendants' facilities, located in Urbana, Ohio. Plaintiffs seek to certify two subclasses defined as all persons who:

(a) own or reside in residential property in the area of contamination 2 caused by Defendants of certain chemicals (the " Plume Class" ); and/or

(b) own or reside in residential property which derives its water from the City of Urbana municipal water system, which itself is contaminated by Defendants' releases of hazardous chemicals (the " Municipal Water Class" ).

For the following reasons, the Court GRANTS Plaintiffs's Motion for Class Certification and certifies the two subclasses under subsections 23(b)(2) and (3) of the Federal Rules of Civil Procedure.

II. FACTS3

The Bentleys are Ohio citizens who reside on the property they own at 1250 State Route 55, Urbana, Ohio 43078. The Bowshiers are Ohio citizens, residing on property they own in Urbana, Ohio, located at 1510 State Route 55. Generally, persons living in Urbana obtain their domestic water supply in one of two ways: 1) from the municipal water system that distributes water drawn from municipal wells to residents and property owners; or 2) from private wells that draw water directly from the groundwater underlying the private well. Both the municipal water system and the private wells, however, draw their water supplies from the Mad River buried valley aquifer system, which has been designated by the federal government as the sole source aquifer for the region.4 At

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the time Plaintiffs filed this action, they relied upon private wells for their water supply. Since then, however, both the Bentleys and the Bowshiers have been connected to the Urbana municipal water system, from which they now receive their domestic water supply.5

Honeywell is a Delaware corporation with its principal place of business in Morristown, New Jersey. Honeywell owns and operates a manufacturing facility located at 515 N. Russell Street in Urbana (the " Honeywell facility" ). Siemens also is a Delaware corporation, with its principal place of business in Alpharetta, Georgia.6 It owns and operates a manufacturing facility located at 145 Dellinger Road, Urbana, Ohio (the " Siemens facility" ).

According to Plaintiffs, for decades Defendants have released toxic chemicals into the environment surrounding Defendants' facilities. Principally, Defendants allegedly have spilled and released industrial solvents containing the volatile organic compounds (" VOCs" ) known as trichloroethene (" TCE" ) and tetrachloroethene (" PCE" ). Both TCE and PCE have been shown to: cause cancer, liver and kidney damage; impair heart function and fetal development; and cause convulsions, coma, or even death.

Defendants' releases, Plaintiffs claim, have merged together to form a single commingled " plume" of groundwater contamination (depicted by the map at Exhibit 1 to Plaintiffs's Amended Complaint) that underlies a substantial portion of the City of Urbana. This commingled plume, Plaintiffs aver, has contaminated private wells and two public wells that provide drinking water to the entire city of Urbana. Plaintiffs contend that Defendants' releases have impacted and contaminated their municipal water supply.

Defendants allegedly have known about the contamination for many years but did not make the citizens of Urbana aware of it nor take adequate investigatory and remediation efforts. Specifically, Plaintiffs contend that Honeywell knew as early as 1987 that its property was contaminated, and knew since 1995 that the groundwater underneath its property was contaminated. As for Siemens, Plaintiffs contend that it knew since at least the 1980s that both its soil and groundwater were highly contaminated. Plaintiffs, however, allege that they did not learn of the contamination of their properties and water supply until the spring of 2001.

Indeed, as early as August 23, 2001, the Ohio Environmental Protection Agency (" Ohio EPA" ) reported that, " [w]hile the water currently provided [sic] Urbana's public water system is safe, Ohio EPA is concerned about the potential future threat." News Release: Ohio EPA Investigates Ground Water Contamination Impacting Drinking Water Wells in Urbana, available at http:// www.epa.state.oh.us/pic/nr/2001/august/urbana.html (Aug. 23, 2001). Accordingly, the Ohio EPA undertook field investigation beginning in 1993 and identified Honeywell and Siemens as " contributors to the ground water contamination in the Urbana area." Urbana Mad River Well Field, available at http://swdoweb.epa.state.oh.us/SWDO/DERRsites/urbana-mad-river-well-field.htm (last updated Jan. 2003). Subsequent investigation also revealed that properties occupied by Johnson Welded Products and Q3 JMC, Inc. were additional sources of VOC contamination in the Urbana Mad River Well

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Field. Id. Consequently, in December of 2002, the " Ohio EPA sent letters to Siemens, Honeywell, [sic] Johnson Welded Products requesting that they enter into an Administrative Order of Consent (AOC) to characterize the VOC plume, evaluate remedial options and implement clean up." Id.

Plaintiffs allege that Defendants " have refused to fully address the releases [of TCE and PCE] so as to mitigate the threats posed [to Plaintiffs]." As a result, Plaintiffs complain that the contamination continues to damage and threaten their properties and water supplies, causing their property values to have decreased substantially, and causing them to have suffered inconvenience, annoyance, and discomfort, and deprivation of the full use and enjoyment of their properties. Plaintiffs argue that Defendants are jointly and severally liable.

Plaintiffs bring claims under: 1) the Comprehensive Environmental Response, Compensation, and Liability Act (" CERCLA" ), 42 U.S.C. § 9607(a) (Count I), for cost recovery; and 2) the Resource Conservation and Recovery Act (" RCRA" ), 42 U.S.C. § 6972(a)(1)(B) (Count VI), for injunctive relief. In addition, they allege state law claims for: 1) negligence (Count II); 2) private nuisance (Count III); 3) trespass (Count IV); 4) willful and wanton misconduct (Count V); and 5) public nuisance (Count VII). Plaintiffs seek class-wide injunctive and monetary relief, but seek class certification on the issues of Defendants' liability and the appropriateness of injunctive relief only. According to Plaintiffs's Motion for Class Certification, the class of persons injured by Defendants' actions likely exceeds 3,000 people.7

III. STANDARD OF REVIEW

Within the dictates of Rule 23, a district court has broad discretion in determining whether to certify a class. In re Am. Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir.1996) (hereinafter " A.M.S. " ); In re Cincinnati Radiation Litigation, 187 F.R.D. 549, 551 (S.D.Ohio 1999). Before certifying a class, however, a court must engage in a " rigorous analysis" of the plaintiff's ability to meet the requirements of Rule 23(a). Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982); Stout v. J.D. Byrider, 228 F.3d 709, 716 (6th Cir.2000); Reeb v. Ohio Dep't of Rehab. & Corr., 81 Fed.Appx. 550, 555, 2003 WL 22734623, *3 (6th Cir. Nov.19, 2003) (unpublished). The party that moves for class certification has the burden of proof. A.M.S., 75 F.3d at 1079 (stating that, as a prerequisite to certification of a class action, plaintiffs must show that the action satisfies Rule 23(a)'s requirements of numerosity, commonality, typicality, and adequacy of representation).

In making its determination, however, the court must not inquire into the merits of the underlying claims. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). A court must accept as true the allegations in the complaint,8 while keeping in mind that resolution of...

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