SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-5545-18T3

 A-5546-18T3

 A-5548-18T3

 A-5549-18T3

JACQUELINE SUTTON and

MELANIE RYAN, on behalf

of themselves and all others

similarly situated,

Plaintiffs-Respondents,

v.

HOFFMANN-LA ROCHE INC., 

THE CITY OF CLIFTON, THE

TOWNSHIP OF NUTLEY, and

DELUXE CORPORATION,

Defendants-Appellants.

________________________________

HOFFMANN-LA ROCHE INC.,

Defendant/Third-Party

Plaintiff-Appellant,

v.

THE TOWNSHIP OF NUTLEY, 

DELUXE CORPORATION, BRIAD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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A-5545-18T3

GROUP, S&H LTD., CLIFTON

LIFESTYLE CENTER, LLC, 

MERCER ENGINEERING 

WORKS, MERCER-ROBINSON 

COMPANY, BENNETT MACHINERY 

CORPORATION, JOHN

DUSENBERY CO., INC., 

INTERNATIONAL PAPER COMPANY, 

NEVINS COMPANY, NEVINSCHURCH PRESS, UNION BAGCAMP PAPER CORPORATION, 

UNION CAMP CORPORATION,

LUBRIZOL CORPORATION, 

LUBRIZOL ADVANCED 

MATERIALS, INC., SCHER 

BROTHERS, SCHER CHEMICALS, 

INC., NOVEON, INC., MAJOR 

AUTOMOTIVE PRODUCTS COMPANY,

MAJOR ENTERPRISES, INC., 

SCANDIA PACKAGING MACHINERY 

COMPANY, MOTIVA ENTERPRISES, 

LLC, SHELL OIL COMPANY, 

UTZTI, LLC, UTZ TECHNOLOGIES, 

INC., UTZ ENGINEERING, INC., 

LYNN HOLDINGS LLC, DIME

REALTY LLC, and LOCKHEED 

MARTIN CORPORATION,

Third-Party Defendants.

______________________________________

THE CITY OF CLIFTON,

Third-Party Plaintiff,

v.

E.I. DU PONT DE NEMOURS AND
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A-5545-18T3

COMPANY,

Third-Party Defendant.

_______________________________________

DELUXE CORPORATION,

Defendant/Third-Party

Plaintiff,

v.

LOUIS BERGER GROUP, INC., 

LOUIS BERGER & ASSOCIATES,

INC., 

Third-Party Defendants.

_______________________________________

Argued telephonically April 21, 2020 – Decided 

Before Judges Fisher, Accurso and Gilson.

On appeal from an interlocutory order of the Superior 

Court of New Jersey, Law Division, Essex County, 

Docket No. L-8724-14.

Owen T. Weaver argued the cause for appellant 

Township of Nutley (Inglesino, Webster, Wyciskala & 

Taylor, LLC, attorneys; John P. Wyciskala III, and 

Owen T. Weaver, of counsel and on the briefs).

Andrew B. Joseph argued the cause for appellant 

Hoffmann-LaRoche, Inc. (Faegre, Drinker, Biddle & 

Reath, LLP, and John P. Phillips (Paul Hastings, LLP)

of the California bar, admitted pro hac vice, attorneys; 

Andrew B. Joseph, Jennifer G. Chawla, and John P. 

Phillips, on the briefs).

May 27, 2020
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A-5545-18T3

Diana C. Manning argued the cause for appellant 

Deluxe Corporation (Bressler, Amery & Ross, PC,

attorneys; Donald Jay Camerson II, Diana C. Manning, 

and Benjamin J. DiLorenzo, on the briefs).

Alexander Hemsley III argued the cause for appellant 

City of Clifton (DeCotiis, FitzPatrick, Cole & Giblin, 

LLP, attorneys; Alexander Hemsley III, and Kevin M.

Kinsella, on the briefs).

Austin B. Cohen argued the cause for respondents

Jacqueline Sutton and Melanie Ryan (Levin, Sedran & 

Berman, and the Law Office of Howard Davis, PC,

attorneys; Austin B. Cohen, Howard P. Davis, Anne M. 

Ronan, and Drew Levinson, on the brief).

Gavin J. Rooney argued the cause for amicus curiae 

New Jersey Civil Justice Institute (Lowenstein Sandler,

LLP, attorneys; Gavin J. Rooney, Joseph Fischetti, and 

Justin Corbalis, on the brief).

PER CURIAM

Because we normally exercise liberality in granting leave to appeal in such 

matters, see Daniels v. Hollister Co., 440 N.J. Super. 359, 361 n.1 (App. Div. 

2015), we granted leave to consider defendants' interlocutory appeals of an order 

granting class certification. Defendants Hoffmann-LaRoche, Inc., Deluxe 

Corporation, Township of Nutley, and City of Clifton1argue that the trial judge 

1 These defendants separately moved for leave to appeal. We granted all those 

motions and calendared the four interlocutory appeals together; they are now 

consolidated for purposes of deciding the appeals in a single opinion.
5

A-5545-18T3

failed to apply the correct legal standard and that plaintiffs failed to satisfy the 

requirements for class certification under Rule 4:32-1. We reject these

arguments and affirm.

I

In December 2014, plaintiffs filed their complaint against HoffmannLaRoche, Inc. (Roche) seeking damages for the reduction in the value of their 

homes caused by widespread groundwater contamination emanating from 

Roche's former2 118-acre research, development, and production facility in 

Nutley and Clifton. Since 1992, Roche has been investigating and attempting 

to remediate contamination associated with its operations in accordance with 

New Jersey Department of Environmental Protection regulations. As part of 

those efforts, Roche retained an environmental consulting firm, TRC 

Environmental Corporation, to investigate and identify the contamination's 

spread and duration. In 2013,3 TRC submitted its "Roche Nutley Enhanced 

Notification and Public Outreach Plan" in accordance with the public 

notification requirements of the NJDEP's Administrative Requirements for the 

2 Roche ceased all operations at the site in December 2013.

3 TRC also submitted a plan, known as the Enhanced Public Notification Plan, 

to the NJDEP in 2009.
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A-5545-18T3

Remediation of Contaminated Sites, N.J.A.C. 7:26C-1.7. Among other things, 

the plan required Roche to distribute public notification letters to the owners and 

tenants of properties within 200 feet of each area of off-site contamination, as 

well as any properties within 200 feet of the block and lot from which the 

contamination exited the site, of any groundwater contamination detected above

New Jersey Ground Water Quality Standards (known as the Classification 

Exception Area or CEA).

By February 2015, plaintiffs served discovery demands on Roche, seeking 

information about its former operations and the site's environmental history. 

Five months later, plaintiffs amended their complaint to add Clifton as a 

defendant, claiming Clifton had also caused or contributed to the contamination 

by failing to properly maintain certain leaking municipal sewers that ran under 

or near the site. A few months after that, Roche filed a third-party complaint 

against Nutley and Deluxe alleging they caused or contributed to the 

groundwater contamination. Plaintiffs then filed a second amended complaint 

to add Nutley and Deluxe as defendants.

In March 2017, plaintiffs sought leave to file a motion for class 

certification. In opposition, Roche argued that such a motion would be 

premature because Roche intended to amend its third-party complaint to add 
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A-5545-18T3

additional parties, and the inclusion of such parties would affect the classcertification analysis. The judge then presiding over the matter denied plaintiffs'

request to file a motion for class certification at that time so as to allow Roche 

to amend its third-party complaint and take depositions pertaining to the issue 

of class certification only.4

In May 2017, Roche amended its third-party complaint to add nearly thirty

parties it contends are liable to plaintiffs or Roche for causing or contributing to 

the alleged contamination. In November 2017, plaintiffs filed a third amended 

complaint, asserting claims against Roche, Clifton, Nutley, and Deluxe to 

recover economic losses on behalf of all residential property owners whose 

properties are located on, or within 200 feet of, contamination at and emanating 

from the site. Plaintiffs alleged that "[f]or decades, Roche released abnormally 

dangerous and hazardous chemicals into the soil and groundwater at the Roche 

[s]ite as a result of the improper storage, transport, handling and disposal of 

4 Roche then claimed it had produced for plaintiff over 600,000 pages of 

documents, which included information about "the site, surrounding areas, the 

plumes that are there, [and] extensive data and historical information about 

operations at the facility." Plaintiffs argued those materials related only to the 

kind of environmental contaminants present and did not provide any information 

about how those environmental contaminants were released. Accordingly, 

plaintiffs sought to obtain from Roche information in the latter category but the 

judge found that unnecessary for the class certification analysis: "I don't see 

any reason to proceed with merits discovery until the class is certified."
8

A-5545-18T3

these chemicals and of Roche's industrial process wastewater." They also 

alleged that Roche:

failed to take proper steps to remediate the 

environmental contamination at and emanating from 

the Roche [s]ite. . . . Thus, for decades pollutants 

released at and in the vicinity of the Roche [s]ite 

percolated into groundwater and migrated off-site, 

forming a plume of contamination extending under and 

adjacent to the residential properties of [p]laintiffs and 

[c]lass [m]embers.

Plaintiffs additionally claimed that Roche installed and operated at least six open 

borehole water-production wells that pumped millions of gallons of water per 

day, and as a result, commingled, deepened and exacerbated the off-site 

migration of the Roche contamination.

Plaintiffs' third-amended complaint also alleges that Clifton and Nutley 

operate municipal sewer pipes running under the site and that cracks and leaks 

have contributed to the contamination. And plaintiffs allege that from 1952 to 

1993, Deluxe operated a check printing business near the site and disposed of 

hazardous waste in dry wells and in an underground storage tank that also 

contributed to the contamination. Their third amended complaint alleges 

trespass, nuisance and negligence against all four defendants, and strict liability 

against Roche and Deluxe.
9

A-5545-18T3

In January 2018, plaintiffs moved for class certification. Defendants filed 

opposition in September 2018, and plaintiffs replied in December 2018. The 

trial judge heard argument in March 2019, and ruled the following month. The 

judge's April 12, 2019 order granted certification of a class of

[a]ll residential property owners whose property is 

located on or within 200 feet of the Roche

Contamination or within the area of Roche's proposed 

CEA. Excluded from the Class are Roche, its parent, 

subsidiaries, and controlled entities, and government 

entities.

A few weeks later, we granted defendants' motions for leave to appeal the April 

12, 2019 order.

II

In reviewing an order either granting or denying class certification, we 

must first evaluate whether the trial judge followed the class action standard set 

forth in Rule 4:32-1. Dugan v. TGI Fridays, Inc., 231 N.J. 24, 50 (2017); Lee

v. Carter-Reed Co., L.L.C., 203 N.J. 496, 506 (2010). In reviewing that

determination, we do not "act as a factfinder with respect to plaintiffs' 

substantive claims." Dugan, 231 N.J. at 55 n.8. We look, instead, to see whether 

the trial judge applied correct legal principles and whether, in so doing, the grant 

or denial of certification constituted an abuse of discretion.
10 A-5545-18T3

Defendants initially argue that the judge failed to conduct a "rigorous 

analysis" of the evidence presented when determining the propriety of class 

certification. Id. at 49. This examination is not necessarily limited to the 

allegations of the plaintiff's pleadings, but must include an analysis of the 

"remaining pleadings, discovery (including interrogatory answers, relevant 

documents, and depositions), and any other pertinent evidence in a light 

favorable to plaintiff." Ibid.

As a general matter, the parties here dispute what should be considered 

the true record for this purpose. That is, defendants argue the judge should have 

considered all that was presented instead of accepting as true plaintiffs' 

pleadings while refusing to consider defendants' evidence that supported a 

hydrogeologic version different from that alleged in plaintiffs' pleadings. In that

regard, defendants argue they submitted evidence regarding the cause of the 

contamination not to show plaintiffs will ultimately fail to prove their claims but 

to demonstrate plaintiffs failed to meet their burden as to all class certification 

requirements. They claim the judge summarily discarded this evidence as 

"premature merits evidence" and that the judge incorrectly applied the "law of 

the case" doctrine to justify that refusal.
11 A-5545-18T3

In response, plaintiffs argue defendants' approach to certification 

erroneously relies on federal standards when it was New Jersey principles that 

the judge was obligated to apply. They claim that even though Rule 4:32 and 

Federal Rule of Civil Procedure 23 are "textually similar," our standard for class 

certification has always been more liberal than the federal standard and, in fact, 

even more so than before, as the federal courts have "become more restrictive." 

Plaintiffs are correct in the sense that while we often look to federal decisions

for guidance, we do so only to the extent they do not contradict established state 

law standards. See Daniels, 440 N.J. Super. at 366 (rejecting consideration of 

federal interpretations of Federal Rule of Civil Procedure 23 that counter our 

"liberality in favor of certification").

So, in response to defendants' argument, plaintiffs contend our 

jurisprudence unambiguously controls the disputed issue of what constitutes the 

true record for purposes of class certification analysis. They argue that 

defendants attempted to defeat class certification by relying on improper expert

opinion evidence that sought to refute the factual allegations in the complaint

and that the judge would have erred had he relied on defendants' description of 

the contamination as an alternative factual basis for the certification analysis.
12 A-5545-18T3

In support, plaintiffs rely on Lee, 203 N.J. at 525-26, where the Supreme 

Court reversed because the trial court failed to accept the factual allegations in 

the complaint as true at the certification stage and for assuming that defendant 

would prevail on some of its scientific defenses. As the Court held in Lee, expert

opinion evidence introduced to support or deny the factual allegations of a 

complaint should be given "no weight" at the class-certification stage. Lee, 203 

N.J. at 525 n.11.

In considering the parties' dispute about what constitutes the true record 

for these purposes, we should start by acknowledging that a class action is a 

procedural device that permits one or more members of a class to sue or be sued 

as representative parties on behalf of all members. Pressler & Verniero, Current 

N.J. Court Rules, cmt. 1 on R. 4:32 (2020). The device allows an otherwise 

vulnerable class of diverse individuals with relatively small claims access to the 

courthouse. Lee, 203 N.J. at 518. "Unitary adjudication through class litigation

furthers numerous practical purposes, including judicial economy, costeffectiveness, convenience, consistent treatment of class members, protection of 

defendants from inconsistent obligations, and allocation of litigation costs 

among numerous, similarly-situated litigants." See Iliadis v. Wal-Mart Stores, 

Inc., 191 N.J. 88, 104 (2007).
13 A-5545-18T3

Moreover, our courts have repeatedly and consistently held that the class 

action rule is required to be liberally construed in favor of permitting 

certification, Dugan, 231 N.J. at 46-47; Lee, 203 N.J. at 518; Iliadis, 191 N.J. at 

103, and that certification should be permitted unless there is a clear showing 

that it is inappropriate or improper. While it is true a court "must 'accept as true 

all of the allegations in the complaint' and consider the remaining pleadings, [as 

well as] discovery (including interrogatory answers, relevant documents, and 

depositions)," this other evidence – if pertinent – must be viewed "in a light 

favorable to plaintiff." Lee, 203 N.J. at 505 (quoting Int'l Union of Operating 

Eng'rs Local No. 68 Welfare Fund v. Merck & Co., Inc., 192 N.J. 372, 376 

(2007)). The trial court must "give a deferential view to plaintiff's case at the 

class-certification stage," Lee, 203 N.J. at 525, as must this court in reviewing 

the trial court order. And, so, it is in this sense that the certifying court must 

undertake a "rigorous analysis" of the pertinent evidence to determine if the

Rule's requirements have been satisfied. Iliadis, 191 N.J. at 106-7. Accordingly, 

while a cursory review of the pleadings is insufficient, id. at 107, the certifying 

court is not to make a preliminary determination of the merits of the underlying 

claims when determining whether the class should be certified, Delgozzo v. 

Kenny, 266 N.J. Super. 169, 180-81 (App. Div. 1993).
14 A-5545-18T3

Defendants claim the trial judge failed to undertake this analysis because 

he declined to consider evidence defendants introduced that allegedly 

demonstrated plaintiffs' inability to satisfy the requirements for class 

certification. This evidence, according to the judge, could not defeat 

certification because defendants were attempting to contradict the factual 

allegations of the complaint by arguing they were not the source of the 

contamination and that the contamination was conveyed by a variety of 

independent and separate plumes with various off-site sources for which the 

defendants are not individually responsible. To the extent the judge viewed 

defendants' hydrogeologic contentions as geared toward suggesting a lack of 

merit in plaintiffs' claims, he correctly declined to give it weight in the analysis. 

This was a proper exercise of the judge's discretion.

We also reject the significance defendants would have us give to their 

expert opinion evidence for two additional reasons.

First, consideration of defendants' merits evidence as the means for 

challenging class certification would promote unfairness in the disposition here 

because merits discovery had been stayed. As a sideshow to the classcertification contest, the parties dispute whether the order staying merits 

discovery constituted "law of the case." We do not quite understand the 
15 A-5545-18T3

significance of this argument. While the law of the case doctrine does not 

typically apply to orders that do not give affirmative, substantive relief, the 

record is clear that the prior judge had limited discovery to that which related to 

class certification. Whether that ruling constituted law of the case or not ignores 

the fact that plaintiffs were obligated to comply with the court's order and, in 

complying, did not have the opportunity to obtain discovery regarding the merits 

that might have refuted that evidence upon which defendants rely. In these 

circumstances, it would be unfair to give extensive weight to the evidence 

offered by defendants to suggest plaintiffs' claims are based on an incorrect 

assumption as to the cause of the contamination.

Second, what defendants have provided is evidence that serves their view 

of the sufficiency of plaintiffs' claims. That is, defendants have offered evidence 

from experts to show that off-site plumes "extend beneath virtually every part 

of the [s]ite," and that the "on-[s]ite production wells did not result in significant 

downward migration of lateral spreading." Defendants are entitled to take that 

position of course, but that doesn't mean these assertions have been established. 

In fact, the NJDEP has found defendants' assertion about off-site plume origin 

to be "factually inaccurate" and has stated it "cannot agree with Roche's 

conclusion that historic pumping . . . did not cause any downward or lateral 
16 A-5545-18T3

movement of contaminants from surface and near surface discharges." So, even 

if the judge was obligated to give greater weight to the views of defendants' 

experts than he did, it would only lead to a recognition that those contentions 

are disputed. Lastly, it is well established that plaintiffs were not required at the 

certification stage to offer opposing expert evidence. It is enough that the 

proponent of class certification intends to do so during the course of the 

litigation. Lee, 203 N.J. at 525 n.11; In re Cadillac V8-6-4 Class Action, 93 N.J. 

412, 428 (1983).

In the final analysis, the judge correctly evaluated defendants' disputed 

hydrogeologic contentions in determining whether class certification was 

appropriate here.

III

In viewing the scope of what was properly before the judge in ruling on 

the motion as discussed above, we turn to whether plaintiffs were able to satisfy 

the four general prerequisites for class certification under Rule 4:32-1(a): 

"numerosity, commonality, typicality, and adequacy of representation." Lee, 

203 N.J. at 519.

Numerosity. Roche, Nutley and Clifton do not dispute the trial court's 

finding that plaintiffs satisfied the numerosity requirement. Deluxe, however, 
17 A-5545-18T3

argues the number of proposed class members with potential claims against 

Deluxe is not "so numerous that joinder of all members is impractical." Deluxe 

argues that while plaintiffs claim the proposed class consists of approximately 

400 property owners, the alleged groundwater contamination related to Deluxe 

affects only four properties located within 200 feet of the contamination. Thus, 

Deluxe argues the number of property owners potentially affected by its alleged

contamination is extremely limited and this lack of numerosity should have 

defeated class certification in its entirety or, at a minimum, class certification as 

to plaintiffs' claims against Deluxe.

The numerosity requirement is satisfied when a class "is sufficiently 

numerous so that joinder is not a satisfactory alternative." Cadillac, 93 N.J. at

425. The number of purported class members is "not wholly dispositive of the 

analysis[,]" and plaintiffs do not have "to show the exact size of the class in 

order to satisfy numerosity." W. Morris Pediatrics, P.A. v. Henry Schein, Inc., 

385 N.J. Super. 581, 595 (Law Div. 2004). "Rather, an equal part of the inquiry 

centers around whether 'the difficulty and or inconvenience of joining all 

members of the class calls for class certification.'" Id. at 596 (quoting Lerch v. 

Citizens First Bancorp., Inc., 144 F.R.D. 247, 250 (D.N.J. 1992)).
18 A-5545-18T3

The judge's determination on this point is fully supported by the record. 

The certified class includes the owners of more than 400 residential properties 

who have been identified by and received regulatory notices from Roche. The 

Court approved the certification of a smaller class of homeowners in Strawn v. 

Canuso, 140 N.J. 43 (1995). And federal courts have found numerosity satisfied 

with even smaller classes. See Stewart v. Abraham, 275 F.3d 220, 226-27 (3d 

Cir. 2001); Rivet v. Office Depot, Inc., 207 F. Supp. 3d 417, 429 (D.N.J. 2016).

Deluxe, as we have noted, argues the contamination emanating from its 

former site may only have affected a small portion of the properties owned by 

class members. That may ultimately turn out to be true but there is evidence to 

suggest that Deluxe's alleged spills may have migrated to at least one of Roche's 

production wells, thereby commingling with Roche's contamination. 

In any event, Deluxe's arguments are more relevant to issues of liability, 

contribution, and allocation of damages, all of which can be properly addressed 

when the merits of the dispute are adjudicated. We also recognize that the trial 

judge may later find it appropriate to exercise his discretion to subdivide the 

class. R. 4:32-2(d). Again, because merits discovery was stayed, it is not clear 

whether or to what extent Deluxe's argument about numerosity may prove 
19 A-5545-18T3

accurate. At this stage, we cannot find an abuse of the judge's discretion in 

determining that the proposed class had sufficient numerosity.

Commonality. In considering commonality, the judge correctly 

recognized that the threshold is low and may be satisfied by a single common 

question. Delgozzo, 266 N.J. Super. at 185. The judge properly determined that 

plaintiffs satisfied the commonality requirement, as issues of law or fact 

common to the class include: whether class members' properties have been 

contaminated; whether defendants are liable to the members of the class for their 

release of abnormally hazardous substances under or near class members'

properties; whether defendants contributed to the exacerbation of the 

contamination; and whether class members have suffered a diminution in the 

value of their properties due to the presence of the contamination.

Deluxe argues to the contrary. Deluxe claims that while plaintiffs may 

have raised common issues, the inquiries with respect to the source and extent

of contamination are not common across the class. Deluxe argues this matter 

does not involve the resolution of a discrete common issue applicable across the 

entire class given the varying sources of contamination alleged by the parties, 

the varying extent of contamination affecting each property within the class, and 

– with respect to Deluxe – the limited off-site extent of its alleged plume.
20 A-5545-18T3

We reject Deluxe's attempt to so finely parse plaintiffs' contentions. 

Commonality was properly found because the claims shared by the class arise 

out of a common set of circumstances: defendants' chemical releases (even if 

mostly by Roche) were allegedly impacted by Roche's production wells, 

commingled, and spread off the site in legal proximity to the class members'

homes.

Typicality. We have held that "[i]f the class representative's claims arise 

from the same events, practice, or conduct, and are based on the same legal

theory, as those of other class members, the typicality requirement is satisfied,"

Laufer v. U.S. Life Ins. Co., 385 N.J. Super. 172, 180 (App. Div. 2006). That 

is, "[t]he claims of the representatives must 'have the essential characteristics 

common to the claims of the class.'" Cadillac, 93 N.J. at 425. The 

representatives' claims need not be identical to those of the class members, 

Laufer, 385 N.J. Super. at 180, and class representatives need not establish that 

their experience was exactly the same as every class members' in order to 

establish typicality. Little v. Kia Motors Am., Inc., 455 N.J. Super. 411, 439 

(App. Div. 2018).

Defendants argue the named plaintiffs' claims are not typical of the class 

because: (1) the nature, extent, and source of contamination affecting each 
21 A-5545-18T3

property within the proposed class is necessarily different; and (2) the properties 

and claimed damages across the class are not typical of one another. 

Disregarding the fact that each class member seeks to assert the same claims of 

negligence, nuisance and trespass, defendants argue the claims of the putative 

class members and named plaintiffs are highly individualized. Common 

evidence – they claim – will not suffice to demonstrate causation between the 

purported injury by the various defendants and the diminution, if any, of 

plaintiffs' and the putative class members' property values. Defendants also 

challenge plaintiffs' assertion that they will establish damages based on a 

common class-wide percentage without offering a report to support the existence 

of a class-wide damages model or providing any explanation to support such 

theory. They claim plaintiffs' unspecified damages model is insufficient to 

establish the requirements for class certification because the determination of 

damages, if any, will require, among other things, an individualized analysis of 

the extent of contamination in the groundwater under each property, the impact 

of that contamination on the owner's use and enjoyment of the property, and the 

ultimate effect, if any, on their property values.

Nutley additionally argues the judge erred in accepting plaintiffs'

contention that there existed a pretrial presumption of damages – without proof 
22 A-5545-18T3

– and in concluding that plaintiffs did not have to present a reliable mathematical 

formula for calculating damages to obtain class certification. Nutley claims 

plaintiffs failed to establish a pretrial presumption of damages because "it is not 

proper to assume that a group of properties have in fact been negatively impacted 

in a similar manner by environmental conditions."

We reject all these arguments regarding typicality. In cases where the 

named plaintiffs and putative class members are impacted by the same unlawful 

conduct, typicality is generally satisfied. Laufer, 385 N.J. Super. at 181.

Because the named plaintiffs assert claims that arise from the same alleged 

wrongdoing as that affecting the class members, the judge did not abuse his

discretion in finding they satisfied the typicality requirement.

In addition, plaintiffs did not need to produce proof of damages at this 

stage in order to show typicality. It is enough at this stage for plaintiffs to 

represent they intend to support their allegations with expert testimony at trial. 

Plaintiffs do not dispute their burden here to prove and quantify their damages 

at trial, but they argue they met their burden by alleging damages of a common 

nature for all class members – a reduction in their residential property values –

and by proposing a mathematical approach to prove them. During merits 
23 A-5545-18T3

discovery, plaintiffs intend to identify econometric and appraisal experts to 

produce expert reports based on market data to quantify their damages.

We agree with the trial judge that typicality requires the claims of the 

named plaintiffs – as the representatives of the proposed class – to have the 

essential characteristics common to the claims of class members. This was 

satisfied here, as the claims asserted by the named plaintiffs arise from the same 

wrongdoing and are identical to the claims of the putative class – that is, each 

member of the class alleges to have suffered economic harm as a direct and 

proximate result of the contamination emanating from the Roche site. And all 

their properties are stigmatized in the same way due to that proximity. Accord

Financial Servs. Vehicle Tr.. v. Panter, 458 N.J. Super. 244 (App. Div. 2019). 

The class members stand obligated to advise any potential purchaser of the fact 

that the property is within the CEA and these class members are unable to drill 

or use any private water wells on their property during the CEA's duration. See

N.J.A.C. 7:26C-7.3.

Moreover, individualized proof of damages is the norm for class actions. 

Muise v. GPU, Inc., 371 N.J. Super. 13, 55 (App. Div. 2004). And, under certain 

circumstances, the class may be permitted to present class-wide average 

damages based on a reliable mathematical formula. Little, 455 N.J. Super. at 
24 A-5545-18T3

432-36. Departure from the general preference for individualized proof may be 

warranted if plaintiffs provide a reliable mathematical formula for calculating 

aggregate damages. Muise, 371 N.J. Super. at 52.5 If plaintiffs cannot establish 

a reliable method to calculate damages on a class-wide basis, then they will have 

to prove individual damages, which, as already note, is often the norm in class 

actions. Id. at 55.

In granting plaintiffs' motion for class certification, the trial judge noted 

that our courts have permitted proof of common class-wide damages and 

accepted plaintiffs' argument that they intend to provide expert evidence proving 

an overall class-wide percentage of property value diminution attributable to the 

contamination during merits discovery. The judge did not abuse his discretion 

in allowing plaintiffs – at this stage of the litigation – to proceed on the basis 

that during discovery, plaintiffs will identify their methodology to calculate 

damages on a class-wide basis through economic theory, data sources and 

statistical techniques common to the class.

5 We need not presently decide if or how the Court's recent holding about 

trespass damages in Kornbleuth v. Westover, __ N.J. __ (2020) might apply here 

since we have no reason to assume those principles would apply differently to 

class members.
25 A-5545-18T3

Adequacy of Representation. When considering "whether the putative 

class representative will be able to 'fairly and adequately protect the interests of 

the class[,]' . . . 'courts consider the adequacy of both the named representative 

and class counsel.'" Laufer, 385 N.J. Super. at 181. "To satisfy this requirement, 

'the plaintiff must not have interests antagonistic to those of the class.'" Id. at 

182 (quoting Delgozzo, 266 N.J. Super. at 188). The interests of the class 

representative and the class members need not be identical and the named 

representative need only be adequate. Ibid.

Plaintiffs' first complaint named Ezzedin Bautista and Areilly Laszlo as 

class representatives. They have since been substituted with Jacqueline Sutton 

and Melanie Ryan. The former is the owner of residential property on Brookdale 

Avenue in Nutley purchased in or around 1992. At the time of her deposition in 

May 2018, Sutton was not trying to sell her home, but she expressed concern 

over the diminished value of her property and the difficulty likely to be 

encountered upon selling her home due to the need to disclose:

Nobody wants to live on poison. Nobody wants to live 

with the fact that your property value could go down 

simply because when somebody comes to buy the thing 

and I have to say, well, there's poison under there, that 

is what I will think will diminish the property value, 

nothing else.
26 A-5545-18T3

. . . . [I]f I have to disclose that there's contaminants 

underneath my house when someone comes to buy it, 

and if they compare that to a clean house, I don't think 

they're going to choose mine.

Ryan is the owner of the residential property located on Cottage Place in 

Nutley purchased in May 2000. At the time of her deposition, also in May 2018, 

Ryan stated she had considered selling her home in 2015 but did not then list it; 

she does, however, anticipate moving at some point in the future.

In considering whether these parties will fairly and adequately protect the 

interests of the class, the judge correctly observed that courts generally consider

whether the named plaintiff has interests that are antagonistic to the interests of

the proposed class, and whether plaintiff's attorney is qualified, experienced and 

generally able to conduct the proposed litigation. The judge determined that the 

representative parties assert a common interest of maximizing recovery for all 

members of the class whose properties have been impacted by the 

contamination. Though defendants argue the named representatives failed to 

establish they will adequately protect the interests of the class members because 

there remain individual issues with respect to damages, we have determined that 

the interests of the class representative and the class members need not be 

identical. Laufer, 385 N.J. Super. at 182.
27 A-5545-18T3

As the named class representatives seek to recover economic losses on 

behalf of all residential property owners whose properties are located on, or 

within 200 feet of, the contamination emanating from the Roche site, the trial 

judge properly determined that the named plaintiffs will adequately represent 

the collective interests of the class. Furthermore, the judge found that the 

attorneys representing the class are qualified and experienced in environmental 

law and class action litigation, a determination that defendants do not appear to 

challenge.

The judge was entitled to determine on this record that plaintiffs' attorneys 

are qualified, experienced and generally able to conduct the litigation, and that 

the class representatives do not have interests antagonistic to other class 

members. Delgozzo, 266 N.J. Super. at 188. The record supports the 

determination that both the named representatives and class counsel are

adequate stewards of the class members' interests.

IV

In addition to finding that plaintiffs satisfied the four elements of Rule

4:32-1(a), the trial judge also found that plaintiffs satisfied the requirements of 

Rule 4:32-1(b)(3). For a class action to proceed under subsection (b)(3), the 

trial court must find "that the questions of law or fact common to the members 
28 A-5545-18T3

of the class predominate over any questions affecting only individual members, 

and that a class action is superior to other available methods for the fair and 

efficient adjudication of the controversy." Ibid.

In making the predominance and superiority assessments, a certifying 

court must undertake a "rigorous analysis" to determine if the Rule's

requirements have been satisfied. Iliadis, 191 N.J. at 106-07. That analysis 

requires a look "beyond the pleadings [to] . . . understand the claims, defenses, 

relevant facts, and applicable substantive law." Id. at 107 (quoting Carroll v. 

Cellco P'ship, 313 N.J. Super. 488, 495 (App. Div. 1998)). A cursory review of 

the pleadings is insufficient. Ibid.

Predominance. In determining whether questions of law or fact common 

to the members of the class predominate over any questions affecting only 

individual members, plaintiffs argue courts must consider: (1) the number and 

significance of common questions; (2) whether the "benefit from the 

determination . . . [of common questions] outweighs the problems of individual 

actions"; and (3) whether there is a "common nucleus of operative facts" among 

all claims. Id. at 108.

Because plaintiffs sought certification pursuant to Rule 4:32-1(b)(3), 

defendants argue the judge failed to undertake the required assessment of the 
29 A-5545-18T3

motion record to determine if individual issues predominate over common issues

and, as a result, incorrectly found that the predominance requirement was met 

simply because plaintiffs alleged so in their complaint. In addition, defendants 

argue plaintiffs cannot satisfy this requirement because the pleadings themselves 

reveal that individual causes of action will predominate. Though plaintiffs have 

asserted three common causes of action against Roche, Clifton, Nutley and 

Deluxe – negligence, trespass and nuisance – defendants argue each cause of 

action requires individual proof of injury proximately caused by each 

defendant's conduct. They contend that separate, highly individualized inquiries 

will be required as to each member's property to determine whether and how a 

particular property has been impacted by contamination and whether such 

contamination has been caused by a particular defendant, and they claim the 

answers to these inquiries cannot be assessed on a class-wide basis as they are 

not uniform across all plaintiffs and defendants. In essence, defendants argue 

the court will ultimately be required to perform a property-by-property inquiry 

to determine the existence – if any – of damages. 

Additionally, Nutley, Deluxe and Clifton argue they cannot be considered 

a common cause of contamination because plaintiffs' pleadings are replete with 

allegations against Roche, claiming Roche released abnormally dangerous and 
30 A-5545-18T3

hazardous chemicals into the soil and groundwater and failed to properly 

remediate the environmental contamination, thereby creating a plume that 

migrated under the properties of the proposed class.

Had the trial judge engaged in an appropriate review – defendants argue 

– he would have determined that plaintiffs' common law causes of action against

four distinct defendants, each with fact-intensive claims and defenses, raise

numerous and significant individualized questions that predominate over any 

common ones.

6

6

In support of this argument – and their arguments challenging commonality 

and typicality – defendants cite to several federal cases denying class 

certification in actions seeking damages for diminished property values due to 

environmental contamination. See Ebert v. Gen. Mills, Inc., 823 F.3d 472, 479 

(8th Cir. 2016) (affirming denial of certification of a class seeking damages for 

diminution of value based on contamination from defendant's facility; given the 

predominance of individual issues of causation and damages, a "property-byproperty assessment" would likely be required at trial to determine whether 

contamination "is wholly, or actually, attributable to [the defendant] in each

instance"); Gates v. Rohm & Haas Co., 655 F.3d 255, 271-72 (3d Cir. 2011) 

(affirming denial of certification where alleged diminution of property value 

was based on "extensive periods of contamination with multiple sources and

various pathways"); Rowe v. E.I. DuPont De Nemours & Co., 262 F.R.D. 451, 

464-65 (D.N.J. 2009) (refusing to certify a class for several claims where the 

plaintiffs claimed the defendant negligently contaminated groundwater and 

caused property damage to an entire community). Of course, we are not bound 

by those federal interpretations. See Delgozzo, 266 N.J. Super. at 188. As we 

noted earlier, the language of our rule and the federal rule may be textually 

similar, but our interpretation is far more liberal and permissive toward class 

certification.
31 A-5545-18T3

We reject these arguments. We agree with plaintiffs that the judge 

properly exercised his discretion in finding predominance.

The record demonstrates that the claims arise from the same "common 

nucleus of operative facts" and raise common questions. The judge recognized 

that plaintiffs' causes of action overlap substantially and require common proof 

relying primarily on evidence of the four defendants in creating the 

contamination, including their historical operations, disposal practices and 

chemical usage.

To the extent that any of the defendants' arguments suggest that subclasses or individual damage evidence eventually may become necessary, 

plaintiffs argue the trial court correctly found that these contingencies are 

manageable, posing no impediment to its finding of predominance:

Finally, the fact that each defendant may present

conflicting evidence regarding plumes, contaminants 

and industrial operations in order to limit their 

individual liability is not a reason to deny certification.

Allocation of contribution percentages of liability 

among joint tortfeas[o]rs is a routine issue of fact in 

New Jersey environment[al] cases.

Indeed, comparatively minor individual issues, or potential sub-class issues, and 

defenses based on fragmentation of liability do not defeat predominance. To 

establish predominance, a plaintiff need not show an "absence of individual 
32 A-5545-18T3

issues or that the common issues dispose of the entire dispute," or "that all issues 

[are] identical among class members or that each class member [is] affected in 

precisely the same manner." Lee, 203 N.J. at 520.

Ultimately, in determining whether a class representative has established 

predominance, a judge should engage in a "pragmatic assessment" of various 

factors, including the significance of the common questions, whether the 

"benefit" of resolving common and presumably some individual questions 

through a class action outweighs doing so through "individual actions[,]" and 

whether a class action presents, at a minimum a "common nucleus of operative 

facts." Id. at 519-20; Iliadis 191 N.J. at 108. Stated another way, "the basic 

question is whether the potential class, including absent members, seeks 'to 

remedy a common legal grievance.'" Cadillac, 93 N.J. at 431.

In a class-action setting, "[i]ndividual questions of law or fact may remain 

following resolution of common questions." Lee, 203 N.J. at 520 (quoting 

Iliadis, 191 N.J. at 108). In the final analysis, the court must determine "whether 

the proposed class is sufficiently cohesive to warrant adjudication by" collective 

action through a class representative. Ibid. 

The judge properly recognized that plaintiffs seek to determine: (1) 

whether Roche's operations at the Roche site resulted in the release, discharge 
33 A-5545-18T3

or spill of hazardous chemicals; (2) how Roche's operations at the Roche site 

affected groundwater flow and exacerbated the migration of the contamination; 

(3) whether Roche is strictly liable for the Roche contamination; (4) whether 

Roche's conduct was negligent; (5) whether Clifton contributed to the Roche 

contamination; (6) whether Nutley contributed to the Roche contamination; (7) 

whether Deluxe contributed to the Roche contamination; (8) whether plaintiffs'

and class members' properties have been contaminated; (9) whether plaintiffs 

and class members have lost use and enjoyment of their properties; and (10) 

whether plaintiffs' and class members' properties have diminished in value as a 

result of the contamination. Though defendants allude to individual issues, 

including proof of causation and damages incurred by each class member, the 

judge properly determined that those issues do not foreclose a finding of 

predominance. See Delgozzo, 266 N.J. Super. at 181.

Superiority and manageability. A court analyzing the superiority

requirement must undertake "(1) an informed consideration of alternative 

available methods of adjudication of each issue, (2) a comparison of the fairness 

to all whose interests may be involved between such alternative methods and a 

class action, and (3) a comparison of the efficiency of adjudication of each 
34 A-5545-18T3

method." Iliadis, 191 N.J. at 114-15 (quoting Cadillac, 93 N.J. at 436); see also

Dugan, 231 N.J. at 49.

The putative class members' "lack of financial wherewithal" is an 

"important factor" in the superiority analysis. Iliadis, 191 N.J. at 115 (quoting 

Saldana v. City of Camden, 252 N.J. Super. 188, 200 (App. Div. 1991)). In such 

circumstances, the Court has expressed a concern that, absent a class, the 

individual class members would not pursue their claims at all, thus 

demonstrating superiority of the class action mechanism. See Iliadis, 191 N.J. 

at 104; Int'l Union, 192 N.J. at 384; Muhammad v. Cty. Bank of Rehoboth 

Beach, 189 N.J. 1, 17 (2006); Daniels, 440 N.J. Super. at 363-64.

The manageability of a class action is another factor to be considered. 

Lee, 203 N.J. at 520. Denial of class status due to manageability concerns, 

however, is disfavored and should be the exception rather than the rule. Iliadis, 

191 N.J. at 117. Complexity is an inherent trait of class litigation, and our courts 

have recognized that potential management difficulties are not grounds for class 

denial when justice can be done only through the class action device. Ibid.

Having said that, we acknowledge that class certification may be denied 

due to manageability concerns. Id. at 118. These concerns, however, must be 

grounded in "concrete evidence of actual or likely management problems," not 
35 A-5545-18T3

mere speculation that management complications may arise. Ibid. Moreover, 

our courts are empowered to craft remedies and procedures to address the 

peculiar problems of class litigation. Id. at 119. For example, a judge might:

alter or amend the certification of a class, R. 4:32-2(a), or subdivide classes or 

maintain class status with respect to only particular issues, R. 4:32-2(d). See

Iliadis, 191 N.J. at 119-20.

The trial court judge agreed with plaintiffs' argument that this proposed 

class action is superior to all other available methods for the fair and efficient 

adjudication of this controversy because it:

will permit a large number of similarly situated 

residential property owners to adjudicate their common 

claims in a single forum simultaneously, effectively, 

and without the duplication of effort and expense that 

numerous individual actions would engender ... [and] 

will enable the adjudication of claims by [c]lass 

[m]embers who would not be able to justify or afford 

separate litigation.

Plaintiffs' assertion that it would not be economically feasible for the 

individual class members to pursue individual claims supports the judge's 

finding of superiority. And the judge properly determined that class action is 

superior to other adjudicatory methods because, absent a class, the individual 

class members would likely not pursue their claims at all due to a lack of 

financial wherewithal. See Int'l Union, 192 N.J. at 384.
36 A-5545-18T3

Plaintiffs' assertion that judicial economy favors class certification also 

supports the judge's superiority finding. Plaintiffs argue that the alternative to 

a class action will be hundreds of individual lawsuits involving duplicate, 

complex environmental and economic evidence, which would unreasonably

burden the court system. In agreeing, the trial judge properly recognized the 

great judicial economy to be realized through having these issues decided in one 

proceeding rather than hundreds of individual proceedings.

Though defendants argue that a class action is not superior to other 

available methods for the fair and efficient adjudication of this controversy

because issues of liability, causation and damages may present individualized

issues, the judge correctly recognized that these factors do not pose impediments 

to the manageability of class litigation. If individualized issues present 

difficulties in the management of this class litigation at a later stage, the trial 

court may, in the exercise of its discretion, subdivide classes or maintain class 

status with respect to only particular issues. R. 4:32-2(d). Mere speculation that 

management issues may arise should not foreclose a finding of superiority.

Accordingly, we conclude that the trial judge properly determined that 

plaintiffs satisfied the superiority and manageability requirements of Rule 4:32-

1(b)(3) as they have demonstrated both economic feasibility and judicial 
37 A-5545-18T3

efficiency support class litigation of this dispute. The proposed class action is 

sufficiently superior to other available adjudicatory methods.

V

Although not specified in Rule 4:32-1, Nutley argues "establishment of a 

class action implicitly require[s] . . . that there be an identifiable class." Saldana, 

252 N.J. Super. at 201. Nutley claims the judge erred in accepting plaintiffs'

proposed class definition of "all residential property owners whose property is 

located on or within 200 feet of the Roche Contamination or within the area of 

Roche's proposed CEA" and in finding that plaintiffs' definition presented an 

identifiable class. Despite the judge's sound and sensible determination that the 

class is defined by members' receipt of regulatory notices and those property 

owners damaged in a sale of property during the pendency of this lawsuit, Nutley 

argues the certified class definition as written is not based on receipt of a 

regulatory notice or the sale of a property but solely on an uncertain geographic 

boundary.

Nutley claims that basing the class on a geographic boundary does not 

create an identifiable class because the class definition arbitrarily declares that 

certain residential properties, but not other nearby or neighboring properties, 

suffered a diminution in value. According to Nutley, predicating a class on 
38 A-5545-18T3

geography is both overinclusive and underinclusive because it will include 

claimants who did not suffer actual damages while it will also omit properties 

outside the 200-foot range that may not have sold because the seller disclosed 

the contamination to the buyer.

Roche argues that by defining the class in terms of the class members'

proximity to "Roche Contamination," the trial court created an invalid "failsafe" class that is untenable under Rule 4:32-2(c). Roche argues the class

definition is highly prejudicial to Roche and improperly assumes that all class 

members live in proximity to "Roche Contamination" rather than contamination 

caused by any of the other defendants to this action.

Plaintiffs dispute Roche's "fail-safe" contention and argue the class is 

defined objectively by reference to each class members' physical proximity to 

the contamination and their corresponding receipt of a Roche notice letter, which 

alone generates damage to the recipients. Plaintiffs claim a "fail-safe" class is 

a class where inclusion turns on the determination of liability itself. This class, 

however, is not defined by proof of liability or damages but by receipt of Roche's 

regulatory notice letters.

Class certification presupposes the existence of a properly defined class. 

Iliadis, 191 N.J. at 106 n.2. Thus, "[e]ven before one reaches the four 
39 A-5545-18T3

prerequisites for a class action, there must be an adequately defined class." Ibid.

"[T]he proposed class must be sufficiently identifiable without being overly 

broad" and "may not be amorphous, vague, or indeterminate" but

"administratively feasible to determine whether a given individual is a member 

of the class." Ibid.

In granting plaintiffs' motion for class certification, the trial court 

determined that plaintiffs proposed an objective, reasonable and proper class

definition, defined not by subjective conditions but by the proposed class 

members' receipt of regulatory notices and their proximity to the identified 

contamination. We agree that this proposed class is sufficiently identifiable, as 

it includes those homeowners in possession of regulatory notices, as well as the 

owners of properties within a certain proximity to an already identified area of 

contamination. The existence of such objective criteria defining the class 

defeats Roche's argument that this is a fail-safe class action, which is understood 

to be a class defined in a way that a person qualifies as a member when that 

person has a valid claim. Byrd v. Aaron's Inc., 784 F.3d 154, 167 (3d Cir. 2015). 

That is not how the judge defined or described this class.7 

7 To the extent the particular language chosen to define the class may suggest a 

fail-safe mechanism for inclusion, the parties may address any concerns about 
40 A-5545-18T3

* * *

Having carefully reviewed the record in light of the parties' arguments, 

we find no merit in defendants' contentions.

Affirmed.

the wording of the definition by way of a motion in the trial court. In that regard, 

plaintiffs' counsel agreed, during oral argument in this court, that the phrase 

"Roche contamination" in the class definition may be removed.