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Hostetler v. Johnson Controls Inc.

United States District Court, N.D. Indiana, South Bend Division

August 15, 2018

AMOS HOSTETLER, et al., Plaintiffs,
JOHNSON CONTROLS, INC, et al., Defendants.



         This is an environmental action over contamination that was released at a factory and has since migrated to neighboring properties. The Plaintiffs, five individuals who live in that neighborhood, seek damages for illnesses (or increased risks of future illness) that they suffered because of their exposure to the contamination. They also seek an injunction requiring the contamination to be cleaned up. In addition to asserting claims on their own behalf, they seek class certification of “liability-related” issues that they assert would be common to potential claims by others in their neighborhood who have been affected by the same contamination. They moved to certify a class of everyone who has owned, rented, or occupied property in the area at any time from 1992 through May 2014.

         The Plaintiffs propose to address seven specific issues on a class-wide basis. They do not contend that those issues would resolve any of the class members' claims in whole, or even establish the defendants' liability; they concede that once the class issues have been resolved, individual trials would be necessary to establish, as to each class member, whether the defendants are liable on any of the claims, whether the class member has been exposed to and injured by the contamination, and the amount of damages owed for that injury. The Plaintiffs admit that, even with the benefit of the initial class proceedings, each of those separate trials would be complex and costly, requiring expert testimony to establish both the individuals' exposure to contamination and a causal link between that exposure and the individuals' injuries. However, the Plaintiffs contend that the issues they have identified can be resolved on a class-wide basis, and that doing so will facilitate and narrow the issues to be resolved in the individual trials.

         For the reasons discussed below, the Court finds that the Plaintiffs have failed to meet their burden of showing that the issues in question are appropriate for class certification under the circumstances of this case. As to several issues, the Plaintiffs have defined the class so broadly, in an attempt to sweep in as many class members as possible, that the issues they propose for certification are not common to the members of that class. Other issues they propose are either insubstantial and undisputed, or would stop short of resolving the relevant issue and would have to be revisited on a class-member-by-class-member basis in the subsequent proceedings. Those issues thus would not drive the resolution of any claims or meaningfully simplify the individual trials. Therefore, the Court denies the motion for class certification.


         Defendant Johnson Controls, Inc. operated a manufacturing facility in Goshen, Indiana for many years. The facility's operations included the use of chemicals including trichloroethylene (“TCE”), trichloroethane, and other hazardous chemicals. Over time, TCE and other chemicals were occasionally spilled or otherwise released into the ground. In 1991, Johnson Controls discovered chlorinated solvent contamination, including TCE and other volatile organic compounds, in the soil at its site. It then began investigating whether the contamination spread off-site, and in 1992, it discovered that a plume of contamination had migrated into the groundwater towards the west and northwest of the site. A number of homes in that area were using wells, so Johnson Controls alerted the residents of the contamination and arranged for them to be connected to municipal water. Johnson Controls also enrolled in the Indiana Department of Environmental Management's (“IDEM”) Voluntary Remediation Program. The Plaintiffs argue that Johnson Controls' remediation efforts under that program have been meager and ineffectual, though, allowing contamination to remain.

         In 2003, IDEM notified Johnson Controls that it needed to evaluate whether vapors from the groundwater contamination could be migrating up through the soil and into the indoor air of structures in the area. Vapor intrusion can occur when TCE in the groundwater volatizes into vapors, which can travel up through the soil to any structures on the property. The vapors can then enter the structures through cracks in the foundation or through crawl spaces, for example, allowing it to reach the indoor air and present a hazard to the occupants. Contamination in the ground can also enter underground utility lines, such as sewers, where the vapors can travel without diluting to the same extent as if they were traveling through the soil. Those types of “preferential pathways” can allow vapor contamination to reach farther distances, and can also allow vapors to enter residences, depending on the utilities' connections to the residences. In 2011, Johnson Controls began sampling structures in the area for vapor intrusion. The results showed that TCE vapors exceeding IDEM screening levels were present in 15 of the residences. Johnson Controls thus installed vapor mitigation systems in each of those residences to restore the air quality to acceptable levels.

         In the meantime, Johnson Controls had sold the property to defendant Tocon Holdings, LLC, in 2007, after ceasing its operations at the site. Tocon conducted manufacturing operations at the site for only a brief time. In late 2013, Tocon began demolishing the buildings on the property. However, it failed to remove the asbestos from the buildings before doing so. Tests conducted on the debris piles in February 2016 revealed the presence of asbestos. The Environmental Protection Agency secured the site and covered the asbestos piles by March 2016, after which it removed all of the asbestos-containing material. Prior to then, however, friable asbestos had been sitting exposed and could have become airborne and been blown in the wind.

         The Plaintiffs in this case are five individuals who live in the neighborhood immediately adjacent to the former Johnson Controls site to its west. The Plaintiffs allege that they have been harmed by exposure to contamination that originated from the site. One alleges that he suffers from kidney failure as a result of the contamination, and each of them allege that they face an increased risk of serious diseases, including cancer, due to the contamination. They also allege that the contamination has caused emotional distress. They filed this suit asserting claims under Indiana law, including claims for trespass, nuisance, negligence, negligent infliction of emotional distress, and an environmental legal action claim. They seek compensatory damages for their past and prospective injuries, punitive damages, and attorneys' fees and costs. They also seek an injunction requiring Johnson Controls to remediate all of the contamination, including the contamination at the site and the contamination that has migrated into the neighborhood.

         In addition to their own claims, the Plaintiffs wish to litigate claims on behalf of all other individuals who have been affected by the contamination. They seek to certify a class of all persons who have owned, rented, or occupied property within the class area at any time between 1992 (when TCE contamination was first discovered off-site) and May 30, 2014 (when they filed suit). The class area consists of a cloud drawn on a map, reflecting the geographic area that the Plaintiffs' retained expert asserts has been impacted by contamination from the site, as shown here:

         (Image Omitted)

         The Johnson Controls site is located towards the east of the cloud, outlined in red. Directly to the west and south of the site are residential neighborhoods, and toward the western edge of the cloud is Goshen High School. North of the high school are a number of additional residences. The class area includes 115 residential and 13 commercial properties.

         The Plaintiffs do not claim that this cloud reflects the scope of contaminated groundwater. The area of groundwater contamination, at least per Johnson Controls' expert (which the Plaintiffs' expert disputes in part, particularly as to the western edge), is shown here:

         (Image Omitted)

         The Plaintiffs argue that the area of contamination is not limited to the groundwater plume. They argue that the concentration of TCE in the groundwater makes it likely that the vapors are able to migrate through the soil to properties outside the plume. They also argue that the various utility lines in the area, including storm and sanitary sewers and gas and water lines, can serve as preferential pathways and allow the contamination to reach even greater distances, thus creating a larger area of contamination.

         Within their proposed class, the Plaintiffs propose to address issues relating to the TCE contamination as well as the later asbestos exposure, and they have proposed seven specific issues for class-wide resolution. The Plaintiffs further contemplate that, once those class issues have been resolved, each class member would have to assert their own claims individually and, building on the issues resolved in the class proceeding, would have to prove their own entitlement to relief in individual trials. They have now moved for class certification, and that motion and other ancillary motions have been fully briefed.


         Before addressing the motion for class certification, a number of evidentiary motions need to be addressed. First, Johnson Controls filed a motion to strike certain opinions offered by the Plaintiffs' expert, Dr. Keramida. 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. Johnson Controls first moves to strike Dr. Keramida's opinion that “there is (or was) a ‘completed' vapor intrusion pathway for all 128 current and former structures in the Class Area.” [DE 313-1 p. 9]. That opinion is not critical to the motion for class certification for a simple reason: the Plaintiffs do not offer or rely on that opinion in support of their motion. To the contrary, they expressly disclaim such an opinion at this stage. [DE 322 p. 11-12 (“Dr. Keramida does not intend to testify that a ‘completed pathway' exists today at every home within the Class Area.”)]. As discussed in more detail below, all the Plaintiffs argue at this stage is that contamination exists somewhere, in some amount, below the ground in the properties within the class area. Since the opinion that Johnson Controls moved to strike is not one that the Plaintiffs offered in support of certification, the Court need not rule on the merits of the motion.[1]

         Johnson Controls also moves to strike Dr. Keramida's opinion that asbestos contamination reached the entire class area. In support of that opinion, Dr. Keramida noted that buildings at the Johnson Controls site were demolished while still containing asbestos, and that the debris was found to contain asbestos. She then had a survey taken of 15 residents of properties within the class area-though to be more precise, properties in portions of the class area nearest to the site [DE 303-10 p. 2]-and those residents reported observing dust on their properties during construction activities at the site. Dr. Keramida then concluded that because asbestos was present in debris on the site, and nearby residents reported having dust on their property, asbestos had affected each of the properties within the class area. [DE 303 p. 26-28].

         Under Rule 702, an expert witness must be qualified, the testimony must be “the product of reliable principles and methods, ” and the expert must “reliably appl[y] the principles and methods to the facts of the case.” Fed.R.Evid. 702. A court has a gatekeeping role to ensure that expert testimony meets those criteria. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993); C.W. ex rel. Wood v. Textron, Inc., 807 F.3d 827, 834-35 (7th Cir. 2015). In conducting that analysis, a court is not concerned with the correctness of the expert's conclusions, but only “the soundness and care with which the expert arrived at her opinion.” Textron, 807 F.3d at 834.

         Here, Dr. Keramida does not identify any methodology that she was employing in order to conclude, based on the presence of asbestos in debris at the site and reports of dust nearby, that asbestos reached the whole class area. She does not cite any studies, and she conducted no testing or analysis, as to how much asbestos could be expected to become airborne through these sorts of activities or how far it could be expected to travel. Moreover, during her deposition, Dr. Keramida stated that she had not actually relied on the survey reports of dust in reaching her conclusion. [DE 314-7 p. 151]. The only remaining support in her affidavit for her conclusion is thus that asbestos was present in debris at the site, and asbestos has the ability to become airborne. Dr. Keramida did not cite any methodology connecting those facts to her conclusion, and an expert's own say-so does not suffice. Gen'l Elec. v. Joiner, 522 U.S. 136, 138 (1997) (“[N]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert.”). In defense of Dr. Keramida's opinion, the Plaintiffs argue that she relied on “her extensive experience in Goshen wind patterns, ” but that sort of vague reference to an expert's experience does nothing to bridge the analytical gap. Accordingly, the Court grants the motion to strike Dr. Keramida's opinion that the class area was also affected by asbestos.

         The Plaintiffs have filed three motions to strike. One seeks to strike a declaration by defense counsel's paralegal, who they characterize as offering expert opinions. According to her declaration, the paralegal reviewed the list of putative class members that the Plaintiffs submitted in support of their motion for class certification, and she counted the number of individuals who, according to the information in the list, appeared to still be associated with the properties at the end of the class period. She concluded that less than a third of those individuals still owned or occupied property in the class area by the end of the class period. The Plaintiffs argue that this is undisclosed expert testimony and that it does not satisfy Rule 702.

         The Plaintiffs' characterization of this declaration as “expert” testimony is difficult to justify. The paralegal does not purport to rely on “scientific, technical, or other specialized knowledge, ” as is required to implicate Rule 702. See Fed. R. Evid. 701(c), 702(a). Her declaration serves more of a demonstrative purpose, as it entailed counting the number of people fitting certain criteria from a list on which the Plaintiffs rely. In any event, the motion to strike is inconsequential, as the Court need not rely on the declaration for the proposition it supports: that many of the putative class members no longer have any connection to the class area. As discussed below, the Plaintiffs' own complaint emphasizes that “many” putative class members have since moved away and no longer own property in the neighborhood. [DE 4 ¶ 107-08]. Other materials the Plaintiffs have submitted-including the list upon which the paralegal relied-illustrate that as well. More importantly, the Plaintiffs bear the burden of proving that class certification is proper, and though they criticize the reliability of this declaration, they have not submitted any evidence attempting to demonstrate that the putative class members do still have a connection to the area that would give them an interest in injunctive relief. Thus, the Court denies the motion to strike this declaration.

         Next, the Plaintiffs filed two motions to strike the opinions and affidavits of Johnson Controls' two retained experts. Again, the Court need not resolve those motions. As discussed below, even accepting the evidence the Plaintiffs offer in support of class certification, they have not met their burden of establishing that any of the issues in question are appropriate for class certification. Thus, the Court need not reach the evidence that Johnson Controls has submitted to contradict the Plaintiffs' assertions. And for that same reason, the Court denies the Plaintiffs' motion for an evidentiary hearing, as no disputed issues of fact would affect the outcome of the motion for class certification.


         “The class action is ‘an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.'” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979)). “‘A class may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites' for class certification have been met.” Bell v. PNC Bank, Nat'l Ass'n, 800 F.3d 360, 373 (7th Cir. 2015) (quoting CE Design, Ltd. v. King Architectural Metals, Inc., 637 F.3d 721, 723 (7th Cir. 2011)).

         A party seeking class certification must first satisfy each of the requirements of Rule 23(a), showing that:

(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or 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). The party must then satisfy at least one of the provisions of Rule 23(b), which are met if:

(1) prosecuting separate actions . . . would create a risk of . . . inconsistent or varying adjudications with respect to individual class members that would establish incompatible ...

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