Toxic Tort Damages Class Action Certified Based on Aggregate Proof

In Shar v. Raytheon, —- F.R.D. —, 2009 WL 3193152, M.D.Fla. 2009 (Sept. 30, 2009), the Middle District of Florida District Courtapproved a toxic tort class action arising out of the contamination ofgroundwater near a Raytheon plant in St. Petersburg, Florida.

The biggest obstacle to class certification was the predominancerequirement.  For a money damages class action to be certified, theplaitniff class representative must show that class issues predominateover individual issues.  Here the defendant argued that individualissues predominated – particularly with respect to properly devaluationdue to the contamination. The District Cout heard expert testimonyabout the ability of the experts to create a model to do what they calla “mass appraisal.”  From reading the opinion, it seems to me that thefact that the local county appraiser uses a similar model was critical to the court’s decision.

The court refused to hold a Daubert hearing prior to certification, raising questions that are addressed in an excellent recent article by Richard Nagareda about the relationship between class certification, the merits and aggregate proof.  See Nagareda, Class Certification in the Age of Aggregate Proof, on SSRN.

(hat tip BNA Class Action Reporter)

ADL