UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

FORT WAYNE DIVISION 

OPAL MILLMAN, ERIC POWELL, and ) 

LAURY POWELL on behalf of themselves ) 

and all others similarly situated, ) 

 ) 

 Plaintiffs, ) 

 ) 

v. ) Cause No. 1:16-CV-312-HAB 

 ) 

UNITED TECHNOLOGIES CORP., ) 

LEAR CORPORATIONS EEDS AND ) 

INTERIORS, as successor to United ) 

Technologies Automotive, Inc., ) 

ANDREWS DAIRY STORE, INC., ) 

L.D. WILLIAMS, INC., CP PRODUCT, ) 

LLC, as successor to Preferred Technical ) 

Group, Inc., and LDW DEVELOPMENT, ) 

LLC, ) 

 ) 

 Defendants. ) 

OPINION AND ORDER 

 Andrews is a small town located in Huntington County, Indiana. Plaintiffs allege that 

Defendants owned and/or operated two businesses that contaminated essentially the entire town, 

including the soil, groundwater, and utility lines, with petroleum and volatile chlorinated 

compounds. Before the Court now is Plaintiffs’ Motion for Class Certification (ECF No. 247) 

which asks the Court to “certify a class as to liability-only issues pursuant to Federal Rule of Civil 

Procedure 23.” (Id. at 1). For the reasons set forth below, the Court concludes that certification of 

Plaintiffs’ proposed issues is not appropriate, and the Motion will be denied. 

I. Factual Background 

 Plaintiffs Opal Millman, Eric Powell, and Laury Powell identify two sites that they allege 

are responsible for all the contamination in Andrews: the former United Technologies Automotive 
2 

site (the “UTA Facility”) and the Andrews Dairy Store (the “Gas Station”). Both sites are in the 

center of town, and it is undisputed that both sites released contaminants into the environment. 

According to Plaintiffs, these releases have comingled and spread, subjecting nearly every resident 

of Andrews to toxic vapors through a process called vapor intrusion. 

 The UTA Facility was operated by various entities, including Defendants United 

Technologies Corp. (“UTC”) and Lear Corporations Eeds and Interiors, as a manufacturing plant 

from 1961 to 2007. Workers at the UTA Facility used trichloroethylene (“TCE”), a powerful 

chlorinated solvent and known human carcinogen, to clean metal parts in two degreaser pits at the 

southern end of the property. TCE was not used in small amounts – in a filing with the Indiana 

Department of Environmental Management (“IDEM”) in 1993, UTA reported that it used as much 

as 14.5 tons of TCE per year. 

 While the parties appear to disagree on scope and culpability, there is no dispute as to 

whether the use of TCE at the UTA Facility resulted in contamination. In 1993 or 1994, UTA 

entered into Indiana’s Voluntary Remediation Program to address the presence of TCE and other 

volatile organic compounds (“VOCs”) found in the soil and groundwater both on- and off-site. 

UTC, as UTA’s former corporate parent, continues UTA’s remediation work to this day. UTA and 

UTC’s remediation efforts include the installation of an air stripper on the town’s municipal water 

supply, continued monitoring of the town’s water supply, ongoing vapor testing and mitigation of 

structures within the town, and other environmental remedial actions. 

 The Gas Station was previously owned by Defendant Andrews Dairy Store, Inc., but is 

currently operated by L.D. Williams, Inc., with the property owned by LDW Development, LLC. 

The Gas Station has operated since the 1960’s, with an automobile repair business operating on 

the property in the 1970’s. Four underground storage tanks were installed in 1979, with capacities 
3 

ranging from 1,000 gallons to 10,000 gallons. The smallest tank was removed in 1998, but the 

other three tanks remain in operation. 

 Again, the parties disagree on scope and culpability, but there is no dispute as to whether 

contamination occurred as a result of the operation of the Gas Station. In 1993 the Gas Station was 

entered into IDEM’s Leaking Underground Storage Tank program. Since then, remediation efforts 

have been undertaken to address the release of petroleum products from the underground storage 

tanks. Those remediation efforts continue and, in 2018, L.D. Williams submitted a Corrective 

Action Plan to IDEM for remediation of the contamination around the Gas Station site. 

II. Opinions of Dr. Vasiliki Keramida 

 Plaintiffs have retained Dr. Vasiliki Keramida as their expert in this case. Dr. Keramida 

has submitted two opinions. The first, submitted on July 12, 2017, opined that: (1) the UTA Facility 

and the Gas Station are the sole sources of the widespread chemical contamination now present in 

Andrews; (2) the Class Area – consisting of those properties impacted by the contamination—

includes 243 properties, including 186 residences1

; and (3) remediation is urgently required to 

eliminate these chemicals from the environment and to eliminate the attendant human health risks. 

 After Dr. Keramida submitted her initial opinion, additional data was collected from 

groundwater, sewers, and several homes. Based on the new data, Dr. Keramida submitted a second 

affidavit on April 9, 2019 (ECF No. 249). Dr. Keramida now believed that her initial estimates 

were too conservative, and that contamination had traveled through utility and sewer lines to the 

far reaches of the town. Accordingly, Dr. Keramida now opined that the impacted area includes 

661 properties, including 510 residences, 44 mobile homes, 22 commercial properties, and 85 

unoccupied properties2

. Dr. Keramida also opined that the town’s drinking water supply remained 

 

1

 A map overlay depicting the original Class Area can be found in the record at ECF No. 249-7. 

2

 A map overlay depicting the amended Class Area can be found in the record at ECF No. 250-5. 
4 

contaminated despite remediation efforts, and that the only satisfactory course of action is for 

Defendants to remediate all remaining contamination both from their sites and from the impacted 

areas in the town. 

III. Proposed Class 

 Plaintiffs propose the class be defined as follows: 

All persons who have owned, rented, or resided at property within the Class Area 

at any time between 1983 and July 18, 2016. 

The Class Area is defined as the area impacted by the contamination, as set forth in Dr. Keramida’s 

second affidavit. 

IV. Proposed Issues for Certification 

 Plaintiff submit the following issues for certification of a liability-only issue class: 

1) Each Defendant’s role in creating the contamination emanating from the UTA 

Facility, including their historical operations, disposal practices, and chemical 

usage; 

2) Each Defendant’s role in creating the contamination emanating from the Gas 

Station, including their historical operations, disposal practices, chemical usage, 

and history of underground storage tank maintenance, repairs, and leaks; 

3) Whether it was foreseeable to the Defendants that their handling, disposal, and/or 

leaking of chemicals could cause an off-site plume of Contamination; 

4) Whether Contamination emanating from the UTA Facility has reached the soil, 

groundwater, and/or utility lines beneath the homes and properties within the Class 

Area; 

5) Whether Contamination emanating from the Gas Station has reached the soil, 

groundwater, and/or utility lines beneath the homes and properties within the Class 

Area; 

6) Whether the Defendants’ actions and inactions have caused Class members and 

properties within the Class Area to incur the potential for vapor intrusion from 

Contamination emanating from the UTA Facility and/or the Gas Station; 

7) Whether the Defendants negligently failed to investigate and remediate the 

Contamination at and flowing from their respective facilities; 
5 

8) Whether, and to what extent, environmental remediation is needed as a result of 

the Contamination; and 

9) Whether the Contamination constitutes an “imminent and substantial 

endangerment” to human health and/or the environment under the Resource 

Conservation and Recovery Act (“RCRA”). 

(ECF No. 248 at 19–20). 

V. Evidentiary Motions 

Before addressing the issue of class certification, it is necessary that this Court address the 

evidentiary motions that have been filed in this case. All Defendants filed a Motion to Exclude the 

Expert Opinions of Dr. Vasiliki Keramida (ECF No. 257) in which they sought the exclusion of 

Dr. Keramida’s “opinions as to the geographic scope of the putative Class Area based on the 

existence of utility lines.” (ECF No. 258 at 7). Defendants L.D. Williams, Inc. and LDW 

Development, LLC, separately filed a Motion to Exclude the Opinions of Dr. Vasiliki Keramida 

(ECF No. 255) seeking to exclude Dr. Keramida’s “conclusion that chlorinated solvents were used 

and released at the Andrews Dairy Site.” (Id. at 2). Plaintiffs have responded to each Motion. (ECF 

Nos. 276, 278). 

 The Seventh Circuit has held that district courts should resolve any objections to expert 

testimony that is “critical to class certification” before addressing the merits of a motion for class 

certification. Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 812 (7th Cir. 2012). 

“Critical” means “important to an issue decisive for the motion for class certification.” Id. As a 

threshold issue, then, the Court must determine whether the subject opinions regarding the scope 

of the Class Area and the type of contamination flowing from the Gas Station are “critical” to the 

determination of the pending Motion for Class Certification. 
6 

 The Court concludes that the opinions at issue are not important to an issue decisive for the 

motion for class certification, and therefore Defendants’ objections do not need to be resolved at 

this stage. Initially, the certification analysis would be the same under Dr. Keramida’s first opinion, 

which is not challenged by Defendants, as it would be under her second opinion. The increased 

scope in the second opinion makes the proposed class more numerous, but even the class proposed 

by her first opinion meets the numerosity requirement under Federal Rule of Civil Procedure 

23(a)(1). CL–Alexanders Laing & Cruickshank v. Goldfeld, 127 F.R.D. 454, 455–57 (S.D.N.Y. 

1989); State Sec. Ins. Co. v. Frank B. Hall & Co., 95 F.R.D. 496, 498 (N.D. Ill. 1982). The Court 

concludes that the expansion of the Class Area in Dr. Keramida’s second opinion does not affect 

any other consideration under Rule 23(a) or (b), and therefore is not “critical” to the Court’s 

certification analysis. 

 The same can be said of Dr. Keramida’s opinion regarding VOC contamination from the 

Gas Station. As noted above, there is no dispute that the Gas Station contaminated some area to 

some degree with some substance. While the precise identification of the kind of substances 

emitted from the Gas Station may be relevant to a liability determination down the road, it is largely 

irrelevant to the determination as to whether Plaintiffs’ proposed class should be certified. The 

Court finds that it can reach the merits of the Motion for Class Certification without reaching the 

merits of the evidentiary motions, and therefore declines to rule on them at this time. See Hostetler 

v. Johnson Controls, Inc., Case No. 3:15-CV-226-JD, 2018 WL 3868848 at *3 (N.D. Ind. Aug. 

15, 2018). 

VI. Plaintiffs Cannot Satisfy the Requirements of Rule 23(a) 

Under Rule 23(a), class certification is permitted only if these four requirements are met: 

“(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions 
7 

of law or fact common to the class; (3) the claims or defenses of the representative parties are 

typical of the claims and defenses of the class; and (4) the representative parties will fairly and 

adequately protect the interests of the class.” Fed. R. Civ. P. 23(a). 

If Rule 23(a) is satisfied, the proposed class must also fall within one of three categories in 

Rule 23(b), which the Seventh Circuit has described as: “(1) a mandatory class action (either 

because of the risk of incompatible standards for the party opposing the class or because the risk 

that the class action adjudication would, as a practical matter, either dispose of the claims of 

nonparties or substantially impair their interests), (2) an action seeking final injunctive or 

declaratory relief, or (3) a case in which the common questions predominate and class treatment is 

superior.” Spano v. The Boeing Co., 633 F.3d 574, 583 (7th Cir. 2011). 

“Rule 23 does not set forth a mere pleading standard.” Wal-Mart Stores, Inc. v. Dukes, 564 

U.S. 338, 351 (2011). “On issues affecting class certification . . . a court may not simply assume 

the truth of the matters as asserted by the plaintiff.” Messner, 669 F.3d at 811. Rather, the named 

plaintiff bears the burden of showing that a proposed class satisfies each requirement of Rule 23 

by a preponderance of the evidence. Id. “Failure to meet any one of the requirements of Rule 23 

precludes certification of a class.” Harriston v. Chi. Tribune Co., 992 F.2d 697, 703 (7th Cir. 

1993). Certification is proper only if “the trial court is satisfied, after a rigorous analysis, that the 

prerequisites of Rule 23(a) have been satisfied.” Dukes, 564 U.S. at 351. The Seventh Circuit has 

directed district courts to exercise “caution in class certification generally.” Thorogood v. Sears, 

Roebuck & Co., 547 F.3d 742, 746 (7th Cir. 2008). 

For the purposes of this Court’s analysis it is sufficient to focus on the typicality 

requirement of Rule 23(a)(3), as this is where the failures in Plaintiffs’ proposed class are the most 

evident. A claim is typical if it “arises from the same event or practice or course of conduct that 
8 

gives rise to the claims of other class members and . . . her claims are based on the same legal 

theory.” Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992). Even though some factual 

variations may not defeat typicality, the requirement is meant to ensure that the named 

representative’s claims “‘have the same essential characteristics as the claims of the class at 

large.’” Retired Chi. Police Ass'n v. City of Chi., 7 F.3d 584, 597 (7th Cir. 1993) (quoting De La 

Fuente v. Stokely–Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983)). 

It cannot be said that the claims of the proposed class members “are based on the same 

legal theory.” Plaintiffs have pled several legal theories in this case, including: trespass; nuisance3; 

negligence; claims under Ind. Code §§ 13-30-9-2 and -3; negligent infliction of emotional distress; 

claims under 42 U.S.C. § 6972(a)(1)(B); and a claim for punitive damages. (ECF No. 156). 

However, those legal theories are not universally applicable to all proposed class members. 

Take the claim for trespass, for example. Under Indiana law, a plaintiff is generally 

required to establish two elements when pursuing a trespass claim. First, the plaintiff must show 

that he possessed the land when the alleged trespass occurred. Second, the plaintiff must 

demonstrate that the trespassing defendant entered the land without a legal right to do so. See KB 

Home Ind. Inc. v. Rockville TBD Corp., 928 N.E.2d 297, 308 (Ind. Ct. App. 2010). The only class 

members with a viable claim for trespass, then, are those that owned the land when the 

contamination reached their parcel. Subsequent owners, who obtained a possessory interest after 

the trespass occurred, have no claim. Id. at 309 (affirming summary judgment on a contaminationrelated trespass claim brought by subsequent purchaser). This would likely include the Powell 

 

3

 It is not at all clear that Plaintiffs can even bring a claim for nuisance. Generally, a public nuisance is caused by an 

unreasonable interference with a common right. Blair v. Anderson, 570 N.E.2d 1337, 1339 (Ind. Ct. App. 1991) (citing 

Restatement (2d) of Torts, § 821B). A private party generally has no right of action under a public nuisance because 

“[i]t is the province of the public authorities to procure redress for public wrongs.” Id. (quoting Adams v. Ohio Falls 

Car Co., 131 Ind. 375, 379, 31 N.E. 57 (1892)). However, an aggrieved party may bring a private action to abate or 

enjoin a public nuisance if that party demonstrates a special and peculiar injury apart from the injury suffered by the 

public. Id. at 1339–40. Since the Plaintiffs seek class certification, they necessarily lack “a special or peculiar injury.” 
9 

Plaintiffs, who did not begin living at their home until 1989, some six years into the proposed class 

period. (ECF No. 248-22 at 1). 

A similar problem exists with respect to Plaintiffs’ claim under the RCRA. Claims under 

the RCRA, like all other claims, require that a plaintiff have standing to bring the claim. Interfaith 

Comm. Org. v. Honeywell Int’l, Inc., 399 F.3d 248, 254 (3rd Cir. 2005). This requires, at a 

minimum, an injury in fact that is concrete, distinct and palpable, and actual or imminent. Id. While 

the RCRA claims do not suffer from the same subsequent purchaser issues as the state court 

trespass claim, DMJ Assocs., LLC v. Capasso, 288 F. Supp. 2d 262 (E.D.N.Y. 2003), class member 

who sold their property prior to the migration of the contamination to their property would likely 

lack standing to present an RCRA claim. Doyle v. Town of Litchfield, 372 F. Supp. 2d 288, 302–

04 (D. Conn. 2005). 

The lack of typicality across class members and legal claims raises questions as to whether 

the named Plaintiffs can adequately represent the proposed class. Let’s assume that the Powells 

did, in fact, purchase their home after their land was already contaminated. The Powells would be 

unable to bring a trespass claim, and therefore would have no incentive to pursue such a claim in 

the face of a settlement that would resolve the other, more applicable, claims. On the other hand, 

the Powells may have a significant incentive to pursue a RCRA claim that may not benefit many 

of the proposed class members. Contrary to the Powells’ assertions, it does appear that they have 

interests that are potentially adverse to other proposed class members. (ECF No. 248-22 at 1). 

Similar discussions can be had for many, if not all, of the remaining claims. Plaintiffs have 

proposed a grab bag of potential legal theories. While every member of the proposed class may be 

able to pluck out one of those claims, none of the proposed class members, including the named 

Plaintiffs, appear to have the ability to take the entire bag. This leaves a situation where the 
10 

proposed class members are separated into multiple subclasses based on legal theories available to 

them and different defenses available to Defendants. While subclasses are permitted by Rule 23, 

those subclasses must still meet all other requirements for certification. See, e.g., In re Methyl 

Tertiary Butyl Ether (“MBTE”) Products Liability Litigation, 209 F.R.D. 323, 351 (S.D.N.Y. 

2002). Plaintiffs do not address the potential for subclasses, so the propriety of subclasses need not 

be addressed here. It is sufficient to say that the legal theories pled are not typical across all class 

members, and therefore the requirement of typicality cannot be met. Accordingly, the proposed 

class cannot be certified. 

VII. Plaintiffs Cannot Satisfy the Requirements of Rule 23(c)(4) 

 Even if the Court were to overlook the Rule 23(a) shortcomings, it would still conclude 

that certification was inappropriate. Even when a claim as a whole cannot be resolved on a classwide basis, Rule 23 allows an action to be “brought or maintained as a class action with respect to 

particular issues.” Fed. R. Civ. P. 23(c)(4); see also Bell v. PNC Nat’l Ass’n., 800 F.3d 360, 379 

(7th Cir. 2015) (“The fact that the plaintiffs might require individualized relief or not share all 

questions in common does not preclude certification of a class.”). As the Seventh Circuit has 

described it, this provision can be used to “carv[e] at the joints of the parties’ dispute”: 

If there are genuinely common issues, issues identical across all the claimants, 

issues moreover the accuracy of the resolution of which is unlikely to be enhanced 

by repeated proceedings, then it makes good sense, especially when the class is 

large, to resolve those issues in one fell swoop while leaving the remaining, 

clamant-specific issues to individual follow-on proceedings. 

Mejdrech v. Met-Coil Sys. Corp., 319 F.3d 910, 911 (7th Cir. 2003); accord McReynolds v. Merrill 

Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482, 491 (7th Cir. 2012). Thus, even if issues like 

causation and damages might require individual hearings for each claimant, a common issue that 

is central to each class member’s claim can be certified and resolved in a class-wide proceeding. 
11 

McMahon v. LVNV Funding, LLC, 807 F.3d 872, 875–76 (7th Cir. 2015); Pella Corp v. Saltzman, 

606 F.3d 391, 394–95 (7th Cir. 2010); see also Butler v. Sears, Roebuck & Co., 727 F.3d 796, 800 

(7th Cir. 2013) (“[A] class action limited to determining liability on a class-wide basis, with 

separate hearings to determine—if liability is established—the damages of individual class 

members, or homogeneous groups of class members, is permitted by Rule 23(c)(4) and will often 

be the sensible way to proceed.”). Once those common issues have been addressed, any remaining 

elements of liability and damages can be resolved in individual trials for each class member. 

Proceeding in that manner can require caution, however. Under the Seventh Amendment, 

“no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than 

according to the rules of the common law.” U.S. Const. amend. VII. In certifying a given issue for 

class treatment, a court must thus ensure that the issue is severable from the remaining issues and 

will not need to be re-examined in the subsequent trials. In re Rhone-Poulenc Rorer, Inc., 51 F.3d 

1293, 1303 (7th Cir. 1995) (“Bifurcation and even finer divisions of lawsuits into separate trials 

are authorized in federal district courts. . . . However, as we have been at pains to stress recently, 

the district judge must carve at the joint. . . . [T]he judge must not divide issues between separate 

trials in such a way that the same issue is reexamined by different juries.”); Cimino v. Raymark 

Indus., Inc., 151 F.3d 297, 320 (5th Cir. 1998) (“[I]f separate trial[s] are ordered, the separately 

tried issues must be distinct and separable from the others.”). Even aside from Seventh 

Amendment concerns, if the class issues are not severable from the individual issues and would 

have to be revisited in each individual proceeding, then there is no efficiency to be gained through 

the class proceeding, and the burdens and expenses of the class action are for naught. See Gates v. 

Rohm & Haas Co., 655 F.3d 255, 273 (3d Cir. 2011) (finding that certification was improper where 

the class issue was “inseverable from other issues that would be left for follow-up proceedings”). 
12 

The Court concludes that Plaintiffs’ proposed issues do not carve at the joint, largely 

because the scope of the proposed class does not leave a joint at which to carve. Part of the problem 

here is the lack of discussion of Rule 23(c)(4) by the Plaintiffs in their briefs. Plaintiffs’ opening 

brief (ECF No. 248) is thirty-nine pages in length, with only one page devoted to explaining how 

their proposed issues would enhance the resolution of these proceedings. Then, after Defendants 

specifically challenged the propriety of certification under Rule 23(c)(4), Plaintiffs devoted only 

an additional page to the discussion in their twenty-five-page Reply (ECF No. 275). The Court 

must echo the sentiments of Judge DeGuilio in Hostetler where he noted that Plaintiffs, in failing 

to specifically tie their causes of action to their proposed issues, missed “out on their opportunity 

to analyze how these issues would drive the resolution of those claims.” Hostetler, 2018 WL 

3868848 at *8 n.3. After reviewing Plaintiffs’ briefs, the Court has little indication as to how 

Plaintiffs intend to advance this litigation with their proposed issues, or why they believe the line 

of demarcation they have chosen represents the appropriate carving joint of their case. 

Plaintiffs’ arguments notwithstanding, the Court concludes that Rule 23(c)(4) certification 

is inappropriate here because, even if a jury were to find in Plaintiffs’ favor on every proposed 

issue, the proof required in the subsequent individual trials would remain unchanged. Take the 

negligence claims, for instance. Plaintiffs concede that they are not attempting to certify issues of 

causation and damages, and that these issues “would be the most expensive and time-consuming 

aspect of this case.” (ECF No. 248 at 37). In relative terms, then, the purported common issues are 

of relative insignificance when compared to the individual issues, calling into question the utility 

of the Rule 23(c)(4) process. See Hostetler, 2018 WL 3868848, at *8. That aside, Plaintiffs’ 

concession means that each class member would have to prove the following at a subsequent trial: 

(1) whether their property has been contaminated; (2) by which Defendant; (3) when the 
13 

contamination occurred; (4) whether they were exposed to the contamination; (5) whether they 

suffered injury; and (6) whether their injury was proximately caused by the Defendants’ conduct. 

It is difficult to see how any of these issues would be resolved by Plaintiffs’ proposed 

issues. While resolution of class issues 4 and 5 may resolve the issue of whether a particular 

property was contaminated at some point in time, the fact of contamination is part and parcel of 

the remaining matters to be proven. Stated another way, if a class member proves the date their 

land was contaminated, they have necessarily proven that the land was contaminated. The 

proceeding envisioned by Plaintiffs, then, will play little, if any, role in resolving the claims of the 

individual class members. 

The same is true of the property-related causes of action. As noted above, simply 

addressing the fact of contamination does little to advance the claims when the existence of the 

claim depends on the date of the contamination relative to a class member’s date of ownership. As 

with the negligence claims, if a class member proves the date of contamination, they will have 

proven the existence of contamination. There is nothing to be added by a proceeding under Rule 

23(c)(4). 

At its most basic level, the problem with Plaintiffs’ proposed class is its temporal breadth. 

When a class period encompasses more than thirty years, there are simply going to be too many 

disparities between the proposed class members, from the periods of ownership to the dates of 

contamination to the availability of different legal theories, for class treatment to be appropriate. 

It is this temporal breadth that distinguishes this case from those on which Plaintiffs rely. See 

Mejdrech, 319 F.3d at 911 (all members of the proposed class lived within a mile or two of the 

contamination source at the time suit was filed); Martin v. Behr Dayton Thermal Prods. LLC, 896 

F.3d 405, 408 (6th Cir. 2018) (proposed class composed of current owners of contaminated 
14 

property). While there may be cases where a group of putative class members are sufficiently 

homogenous over an extended period of time to permit class certification across decades, this is 

not one of them. 

Plaintiffs’ proposed issues can only demonstrate there is the potential for a Defendant to 

be liable to any particular class member. Actual liability, along with damages, would have to be 

resolved later. Thus, a class proceeding here can only exclude, not include, potential plaintiffs. The 

class proceeding can only benefit the Defendants and they oppose certification. Cf. Hostetler, 2018 

WL 3868848, at *14. 

Having concluded that the proposed issues will not advance the resolution of this litigation, 

the Court finds it unnecessary to delve into the facial deficiencies with the individual issues 

themselves.4

 It is sufficient to say that this Court does not find that this case presents issues that 

are common or superior enough to make Rule 23(c)(4) certification appropriate. 

VIII. Conclusion

For the foregoing reasons, Plaintiffs’ Motion for Class Certification (ECF No. 247) is

DENIED. Defendants’ Motions to Exclude (ECF Nos. 255 and 257) are DENIED as moot. 

SO ORDERED on November 18, 2019. 

 s/ Holly A. Brady 

JUDGE HOLLY A. BRADY 

UNITED STATES DISTRICT COURT

4

 For instance, how do Plaintiffs propose a jury to determine each Defendants’ “role” in the alleged contamination, 

including “their historical operations, disposal practices, and chemical usage” in a way that is useful to future 

proceedings? How can a jury determine the extent of remediation required on a class-wide basis when the answer will 

almost certainly vary from parcel to parcel? Why is a determination as to whether the contamination constitutes a 

“imminent and substantial endangerment” under the RCRA a class-wide issue when the majority of the proposed class 

no longer lives in the Class Area and therefore has no RCRA claim?