Rhodes v. Nemours

• Decision Date: 08 April 2011
• Docket Number: No. 10–1166.,10–1166.
• Citation: 636 F.3d 88
• Parties: William R. RHODES; Russell H. Miller; Valori A. Mace, Plaintiffs–Appellants,v.E.I. DU PONT DE NEMOURS AND COMPANY, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

636 F.3d 88

William R. RHODES; Russell H. Miller; Valori A. Mace, Plaintiffs–Appellants,

v.E.I. DU PONT DE NEMOURS AND COMPANY, Defendant–Appellee.

No. 10–1166.

United States Court of Appeals, Fourth Circuit.

Argued: Jan. 25, 2011.Decided: April 8, 2011.

ARGUED: Robert A. Bilott, Taft, Stettinius & Hollister, LLP, Cincinnati, Ohio, for Appellants. Charles Glaston Cole, Steptoe & Johnson, LLP, Washington, D.C., for Appellee. ON BRIEF: John B. Nalbandian, Aaron M. Herzig, Heidi H. Trimarco, Taft, Stettinius & Hollister, LLP, Cincinnati, Ohio; J. Steven Justice, Taft, Stettinius & Hollister, LLP, Dayton, Ohio; R. Edison Hill, Harry G. Deitzler, Hill, Peterson, Carper, Bee & Deitzler, PLLC, Charleston, West Virginia; Larry A. Winter, Winter, Johnson & Hill, PLLC, Charleston, West Virginia, for Appellants. Jennifer Quinn–Barabanov, Patricia B. Paredes, Steptoe & Johnson, LLP, Washington, D.C., for Appellee.Before NIEMEYER, DUNCAN, and KEENAN, Circuit Judges.Affirmed in part; dismissed in part by published opinion. Judge KEENAN wrote the opinion, in which Judge NIEMEYER and Judge DUNCAN joined.

OPINION

KEENAN, Circuit Judge:

This case arose under the district court's diversity jurisdiction and involves the contamination of a public water supply in Parkersburg, West Virginia. We consider whether the plaintiffs, individuals who consumed the water but have not become ill as a result, demonstrated an injury sufficient to survive summary judgment on certain West Virginia common law tort claims. We also review the district court's rulings denying class certification of those claims under Federal Rule of Civil Procedure 23(b). Finally, we decide whether the plaintiffs, who obtained voluntary dismissals in the district court of their individual claims for medical monitoring, have standing to pursue an appeal of the district court's denial of class certification of those claims. For the reasons that follow, we dismiss the plaintiffs' claim challenging the district court's denial of their class certification request for the medical monitoring claims, and we affirm the balance of the district court's judgment.

I.

We begin by stating the facts and procedural history relevant to our review of the district court's summary judgment and class certification holdings. The plaintiffs, William R. Rhodes, Russell H. Miller, and Valori A. Mace, are residents of the City of Parkersburg in Wood County, West Virginia, and are customers of the Parkersburg City Water Department (the Water Department), which supplies water to homes located in Wood County. E.I. du Pont de Nemours and Company (DuPont) operates a manufacturing facility in Wood County. For an extended period of time, DuPont's plant has discharged perfluorooctanoic acid (PFOA) into the environment surrounding the plant. Measurable quantities of PFOA have been detected in the water that is pumped by the Water Department into the plaintiffs' residences. PFOA also has accumulated in the plaintiffs' blood and has been detected in the homes of other customers of the Water Department.

In 2006, the plaintiffs filed a complaint against DuPont in the Circuit Court of Wood County, West Virginia. The plaintiffs asserted six common law claims, individually and on behalf of a class of customers of the Water Department, addressing the contamination of their municipal water supply and the resulting presence of PFOA in their blood. The plaintiffs sought damages with respect to claims of negligence, gross negligence, battery, trespass, and private nuisance. The plaintiffs also sought injunctive relief to obtain long-term diagnostic testing (medical monitoring) for latent diseases on behalf of a class of Water Department customers exposed to PFOA beginning in 2005. Additionally, the plaintiffs asserted individual and class claims for medical monitoring, a common law tort first recognized by the West Virginia Supreme Court of Appeals in 1991.¹

DuPont removed the case to the federal district court, invoking the court's diversity jurisdiction. See 28 U.S.C. § 1332(a)(1). After conducting a hearing on the plaintiffs' motion for class certification under Federal Rule of Civil Procedure 23(b), the district court concluded that the elements of a medical monitoring tort could not be proved on a class-wide basis using the type of evidence presented by the plaintiffs. The district court therefore denied the plaintiffs' motion for class certification of their medical monitoring claims. The district court further held that the plaintiffs had not met their burden under Rule 23 for certification of a class to pursue medical monitoring relief based on the plaintiffs' claims of negligence, gross negligence, battery, trespass, and private nuisance (collectively, the traditional common law torts or tort claims). The district court thus denied the plaintiffs' motion for class certification of the traditional common law tort claims.

The plaintiffs later amended their complaint to add individual and class claims asserting a cause of action for public nuisance. The plaintiffs also sought leave to file a second motion for certification of a class to seek medical monitoring relief incident to the traditional common law tort claims, except battery, which they had asserted in their earlier complaint. The district court denied this request.

DuPont filed motions seeking summary judgment on all the plaintiffs' claims. The district court granted in part and denied in part DuPont's motions. The district court granted DuPont's motions with respect to all the plaintiffs' traditional common law tort claims, and the additional claim of public nuisance (hereafter collectively, the traditional common law tort claims). Rhodes v. E.I. du Pont de Nemours and Co., 657 F.Supp.2d 751, 762–73 (S.D.W.Va.2009). Based on that ruling, the district court also denied as moot the plaintiffs' motion for class certification of the public nuisance claim. Id. at 778. However, the district court denied summary judgment with respect to the plaintiffs' individual claims of medical monitoring.² Id. at 774–777.

In order to appeal immediately the adverse summary judgment and certification rulings, the plaintiffs filed a stipulation of voluntary dismissal under Federal Rule of Civil Procedure 41(a)(1) of their individual claims for medical monitoring. The district court entered final judgment for DuPont, from which the plaintiffs filed this appeal.

II.

We review the district court's award of summary judgment de novo. PCS Phosphate Co. v. Norfolk S. Corp., 559 F.3d 212, 217 (4th Cir.2009). We apply the same standard as the district court, under which summary judgment is proper if the nonmoving party fails to make a sufficient showing of an essential element of that party's case. Cray Commc'ns, Inc. v. Novatel Computer Sys., Inc., 33 F.3d 390, 393 (4th Cir.1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Such a failure of proof renders all other facts immaterial. Id. Under that circumstance, the moving party is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56.

We begin our review of the district court's summary judgment holdings by considering the plaintiffs' traditional common law tort claims. Although these various tort claims involve distinct elements of proof, the claims all require that a plaintiff establish that the defendant's conduct produced some “injury” to the plaintiff or to the plaintiff's property. See Atkinson v. Harman, 151 W.Va. 1025, 158 S.E.2d 169, 173 (1967) (duty, breach, and injury are essential elements of negligence); W. Va. Fire & Cas. Co. v. Stanley, 216 W.Va. 40, 602 S.E.2d 483, 494 (2004) (person liable for battery if he or she acts intending to cause harmful or offensive contact with person of another and a harmful bodily contact directly or indirectly results); Hark v. Mountain Fork Lumber Co., 127 W.Va. 586, 34 S.E.2d 348, 352 (1945) (trespass is unauthorized entry onto the land of another and doing damage to or interfering with his use of his real property); Hendricks v. Stalnaker, 181 W.Va. 31, 380 S.E.2d 198, 200 (1989) (private nuisance is “substantial and unreasonable interference with the private use and enjoyment of another's land”); Hark, 34 S.E.2d at 354 (individual asserting public nuisance claim in private capacity must assert “special injury”). With respect to each of the plaintiffs' traditional common law tort claims, the district court concluded that the accumulation of PFOA in the plaintiffs' blood, and the alleged risk of developing certain diseases in the future, did not constitute an “injury” for purposes of proving each of these common law claims. In reviewing this holding, we consider the required element of “injury” in the context of each of these traditional common law torts.

A.

Under West Virginia law, a plaintiff alleging negligence or gross negligence is required to prove that he or she sustained an injury caused by the defendant's allegedly negligent conduct. See Atkinson, 158 S.E.2d at 173. Generally, such injury must already have occurred, although a plaintiff sometimes may recover for future effects of a present injury that are reasonably certain to occur. See Cook v. Cook, 216 W.Va. 353, 607 S.E.2d 459, 464 (2004).

In the present case, the plaintiffs concede that they do not suffer currently from any illness or disease caused by their exposure to PFOA. Instead, the plaintiffs assert that they are injured because PFOA has accumulated in their blood. The plaintiffs maintain that based on the presence of PFOA in their bodies, they suffer a significantly increased risk of developing certain diseases, including liver disease, cholesterol abnormalities, and certain cancers, when compared to the general population's risk of developing those diseases. According to the plaintiffs, this increased risk of disease satisfies the “injury” requirement for negligence and gross negligence under West Virginia law. We disagree with...