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Cotromano v. United Technologies Corp.

United States District Court, S.D. Florida

May 2, 2018

RICHARD COTROMANO et al., Plaintiffs,
v.
UNITED TECHNOLOGIES CORPORATION and PALM BEACH AGGREGATES, LLC, Defendants. JOSEPH ADINOLFE etc., et al., Plaintiffs,
v.
UNITED TECHNOLOGIES CORPORATION, Defendant.

          OPINION MEMORANDUM AND ORDER DENYING PLAINTIFFS' MOTION TO CERTIFY LITIGATION CLASS AS AGAINST DEFENDANT UNITED TECHNOLOGIES CORPORATION [DE 265] AND DENYING PLAINTIFFS AND DEFENDANT PALM BEACH AGGREGATES, LLC'S JOINT MOTION TO CERTIFY SETTLEMENT CLASS AS AGAINST DEFENDANT PALM BEACH AGGREGATES, LLC [DE 253]

          KENNETH A. MARRA, UNITED STATES DISTRICT JUDGE

         THIS CAUSE is before the Court on the Plaintiffs' Joint Motion for Class Certification as against Defendant United Technologies Corporation [DE 265].[1" name="FN1" id="FN1">1] Defendant United Technologies Corporation (“UTC”) filed a Response in Opposition to the Motion [DE 320] and Plaintiffs filed a Reply [DE 330]. Each side has moved to exclude the others' experts pursuant to Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786');">113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and those motions are also pending [DE 236-248, 251, 277, 279]. The Court held a five-day evidentiary hearing on all relevant motions from January 8-12, 2018. The parties have since submitted written summations and proposed findings of fact and conclusions of law [DE 425, 426-1, 427-1, 428]. Having reviewed the Plaintiffs' Consolidated Class Action Complaint [DE 318] (“Compl.”), the parties' class certification briefs, voluminous evidentiary submissions [DE 255-264; 284-285; 319; 363-367; 368-374, 394, 405, 419-424] expert reports, and the relevant law, the Court rules as follows.

         I. Preface

         Plaintiffs are five married couples and two individuals who own property in a semi-rural residential community in western Palm Beach County known as “the Acreage.” They filed this putative class action against United Technologies Corporation (“UTC”), Pratt & Whitney Group (“Pratt & Whitney”), the owner of a rocket and aerospace testing and manufacturing plant located between five to fifteen miles north of the Plaintiffs' properties. Plaintiffs allege Pratt & Whitney released toxic contaminants into the air, water and soil at the Pratt & Whitney plant and in the communities surrounding the plant, and that some of the contaminants migrated to the Acreage via groundwater or soil transport. They claim their properties are either contaminated, at risk of future contamination, or in proximity to contaminated property as a result of Pratt & Whitney's environmental abuses, and that they have suffered a loss of use and enjoyment of their property, as well as a diminution in property values, as a result.[2]

         In earlier proceedings before the Honorable Judge Kenneth L. Ryskamp, to whom this action was originally assigned, Plaintiffs' claims were dismissed due to insufficient evidence of class-wide actual contamination and causation. The Eleventh Circuit reversed and reinstated the claims, Adinolfe v. United Technologies Corp. d/b/a Pratt & Whitney, 1161');">768 F.3d 1161 (11th Cir. 2014). Following remand and reassignment to the undersigned, the putative class representatives filed a joint consolidated class action complaint [DE 318] and moved for class certification [DE 265]. For reasons set forth below, the Plaintiffs' motion for class certification is denied.

         II. Fact Background[3]

         Since 1957, Pratt & Whitney has continuously operated rocket and aerospace testing and manufacturing facilities on a 30-square-mile property in rural western Palm Beach County. It has done business at this location as the Pratt & Whitney Government Engine Business Division, the Pratt & Whitney Aircraft Florida Research and Development Center, and Pratt & Whitney Rocketdyne. To support these operations, UTC constructed a system of canals, ponds, above and below ground tanks, pipelines, cooling towers and test stands. The southern edge of Pratt & Whitney's property is contiguous to a 25-square-mile parcel known as the J.W. Corbett Wildlife Management Area (“Corbett Wildlife Area”). The Corbett Wildlife Area, in turn, abuts the northernmost edge of the residential community known as “the Acreage.”

         According to Plaintiffs, Pratt & Whitney's manufacturing activities caused the release of vast quantities of toxins, contaminants, carcinogens and other hazardous wastes -- collectively referred to as Chemical Contaminants of Concern (“CCOCs”) -- into the air, groundwater and soil at and near its Palm Beach County Campus. This allegedly resulted in migration of CCOCs to the Acreage by way of a shared permeable aquifer, and by way of ground transport of contaminated soil allegedly dumped at the Acreage for landfill.[4]

         Due to concerns about on-site contamination with radionuclides and other contaminants, the United States Environmental Agency (“EPA”) designated the Pratt & Whitney property as a potential Superfund site in the 1980s and placed it on the EPA National Priorities List.[5]Ultimately, UTC, through its consultant, Dames & Moore, negotiated a remediation plan with the Florida Department of Environmental Regulation, allowing it to conduct remediation at its Pratt & Whitney Campus with limited EPA oversight and without formal designation as an EPA “Superfund” site. Plaintiffs contend these remediation efforts came too late, after the shared aquifer had already been heavily contaminated, and that Pratt & Whitney's remediation work did not stop contaminated groundwater from escaping and traveling to the Acreage (Compl. ¶¶ 46, 49).

         In June 2009, the Florida Department of Health (FDOH) began investigating the incidence of pediatric cancer cases in the Acreage at request of a concerned parent whose six-year-old son had recently been diagnosed with a brain tumor. On February 1, 2010, at the completion of its investigation, the FDOH reported pediatric brain tumors diagnosed in the Acreage to be significantly escalated for years 2005-2007, leading the Palm Beach County Health Department to designate a section of the Acreage as a “cancer cluster” [Compl. ¶75]. Shortly after, the Center for Disease Control (CDC) confirmed the escalation and added 2008 pediatric diagnoses to the cluster [Compl. ¶¶ 25-26].

         The FDOH investigation triggered a multi-agency inquiry into environmental contamination in the area. The Federal Housing Administration imposed a warning advising appraisers that the state-declared cancer cluster may be harming home values in the central Palm Beach County residential community known as the Acreage. The Florida Department of Environmental Protection also stepped in, but, after several years of extensive on-site testing, concluded there was no reason for concern about environmental conditions in the Acreage: It announced, in its August 2010 public report, that “[t]he water qualify in the Acreage is generally good and residential property in The Acreage is safe for families to enjoy outside activities in their yards….” It noted “no risk factors were found associated to pediatric brain cancer, ” leading the FDOH to cease its investigation with no finding on causation of the cancer cluster. Plaintiffs contend this lapse is attributable to FDOH's use of incomplete data, failure to assess local polluters, agency bias and improper influence of a county engineer [Compl. ¶ 36].

         It is undisputed that the soil and groundwater at the Pratt & Whitney Campus were contaminated when CCOCs seeped into the soil and groundwater over the course of Defendant's operations at the site. It is also undisputed that some of these contaminants migrated to the adjacent Corbett Wildlife Area, as evidenced by an underground plume of I, 4-dioxane originating at the Pratt & Whitney site and extending 1000 feet into the Corbett Wildlife Area. At issue in this case is whether contaminants released by Pratt & Whitney also migrated to or near the Acreage, by way of groundwater or soil transport, creating health risks for Acreage inhabitants and environmental stigma which has damaged their property values.

         Groundwater Transport

         Pratt & Whitney's Palm Beach County Campus, the Corbett Wildlife Area, and the Acreage are underlain by and share a common underground aquifer. A groundwater “ridge” bisects the Pratt & Whitney campus and the Corbett Wildlife Area to the south. Groundwater from the eastern portion of the Pratt & Whitney site flows east and southeast, and groundwater from the western half of the site flows west and southwest. The experts' groundwater models, including the one prepared by Plaintiffs' expert, Daniel Stephens, show a narrow band in the center of the Pratt & Whitney property, described as a “preferred pathway, ” where groundwater could potentially flow from Pratt & Whitney toward the proposed class area.

         The parties disagree as to whether groundwater velocity in this area is capable of carrying groundwater from Pratt & Whitney's site to the northern edge of the proposed class area in the relevant time period. Plaintiffs' hydrogeologists, Philip Bedient and Daniel Stephens, opined this is feasible, via the “preferential pathway, ” and that contaminants from the aquifer underlying Pratt & Whitney could have, within a reasonable degree of probability, migrated to the Acreage via this pathway. The Defendant's hydrogeologist expert, Thomas Missimer, came to the opposite conclusion, opining that any contaminants found in groundwater at the Pratt and &Whitney facility would have attenuated by natural processes to the point of being undetectable before reaching the proposed class area.

         Off-Site Contamination

         It is undisputed, as noted above, that an I, 4-dioxane underground plume migrated offsite from the Pratt & Whitney site, approximately 1, 000 feet into the Corbett Wildlife Area. It is also undisputed that high concentrations of I, 4-dioxane have been detected in groundwater at the Pratt & Whitney site. In the Acreage, however, the FDEP detected I, 4-dioxane at only four of over 100 locations tested in the northern part of the proposed class area, and these detections were classified as “I” results below the “practical quantification limit” for the lab, meaning the amounts were too small to measure accurately. The Defendant disputes whether these detections are attributable to Pratt & Whitney operations.

         Plaintiffs' experts also detected, based on independent test well drilling in the Acreage, the presence of methylene chloride, chloroform, bromodichloromethane, 1-4-dioxane, dioxins and furans. Plaintiffs' expert geologist, Brian Moore, attributes the presence of these chemicals in the Acreage to Pratt & Whitney operations. Moore explains that UTC's operations are known to involve carbon tetrachloride, which undergoes anaerobic microbial degradation to become chloroform, which in turn undergoes anaerobic microbial degradation to become methylene chloride. His opinion tethering these chemicals to Pratt & Whitney also derives from UTC's self-report of significant levels of chloroform, methylene chloride and bromodichloromethane in its monitoring wells, as well as high concentrations of I, 4-dioxane in its groundwater. UTC contests the admissibility of Moore's expert testimony connecting the detection of these materials to Pratt & Whitney activities.

         Brian Moore also testified to detections of dioxin and furans in the groundwater at seven locations in the proposed class area, again attributing the presence of these materials to Pratt & Whitney operations. Defendant challenges the reliability of Moore's physical findings and migration opinions - questioning lab accreditation and lab contamination issues attending the testing and criticizing Moore's failure to consider alternative sources for the Acreage detections.

         Soil Transport

         The defense hydrogeologist, Thomas Missimer, testified that surface or groundwater transport of radioactive materials to the proposed class area is not possible. Plaintiffs do not identify any competing expert testimony on this issue.

         Plaintiffs do focus on soil transport as the likely migration path of radioactive contaminants. Plaintiffs contend that untreated, contaminated soil removed from the Pratt & Whitney site was diverted from delivery to designated soil recycling plants in South Florida and instead trucked directly into the Acreage where it was used, untreated, as residential landfill;[6] in this manner, Plaintiffs contend that radioactive materials originating with Pratt & Whitney were introduced into the Acreage environment, where residuals relating to Acreage drinking water systems later showed “shockingly high levels of radioactive isotopes” at some homes.

         Plaintiffs' environmental radioactivity expert, civil engineer Marco Kaltofen, found elevated levels of several radioactive materials (comparable to those found at the UTC site) in several of the Acreage test home yards and in soils where the water systems backflush at those properties. Some of these homes were identified as potential recipients of fill products from Tru Trucking, one of the ground transport companies used by Pratt & Whitney to remove soil from its Palm Beach County Campus during the 1990s. Sporadic testing by Kaltofen in the proposed class area revealed detections of naturally-occurring radioactive materials such as Uranium and Thorium-230, and man-made materials such as Cesium-137 and Strontium-90.

         Kaltofen found detections of Thorium isotopes in some locations at above-background levels (without identifying the range of expected levels or reporting a mean for thorium detections above expected background concentrations), [7] in addition to detections of Radium-226 and Lead-210 found at above background levels. He correlated these detections to materials used at the UTC site, and by comparing characteristics of offsite and onsite samples using a microscopic analysis procedure called “SEM.”[8]

         Kaltofen tested for Strontium-90 in fifty soil samples, tabulated in his direct testimony affidavit [DE 363-1 pp. 10-11]. He explained that the sampling areas primarily encompassed case homes (homes included in the FDOH cancer cluster investigation), Pratt & Whitney site locations, in addition to six samples taken at Acreage homes identified as recipients of Tru Truck landfill deliveries. He found elevated Strontium-90 detections highest at the UTC campus, at Acreage homes closest to the UTC campus, and in Acreage homes that received Tru Trucking landfill, and noted that several of these detections were found in samples taken at different times and run by separate lab reports.

         Kaltofen acknowledged that radioactive contamination could not be shown in a representative distribution across the proposed class area, and his Acreage samples were simply a presentation of a “particular mode of contamination spread.” Drawing from the results of his limited sampling areas, he ultimately correlated the presence of radioactive materials (other than Strontium-90 and Cesium-137) detected in the Acreage to materials found in UTC operations, by comparing characteristics of onsite and offsite samples and by comparing metals present in samples through microscopic analysis.

         Defendant acknowledges some documented uses of Cesium-137 and Strontium-90 at Pratt & Whitney, but contends there is only evidence of use of small quantities maintained in “closed sources, ” with no evidence that these materials were used at the site in an “uncontrolled fashion” that would allow them to be released into the environment. Kaltofen agrees that closed sources could not be a source of radioactive contaminants, assuming closed sources were used; he also acknowledges that the presence of Cesium-137 and Strontium-90 from something other than sealed sources would require nuclear fission, through means such as the operation of a nuclear reactor or detonation of a nuclear bomb, and that these materials could only be present in the amounts he detected if such fission-producing work occurred at the Pratt & Whitney site.[9]With no specific evidence of either event ever occurring at the Pratt & Whitney site, Kaltofen offered no opinion as to source of Cesium-137 or Strontium-90 detections specifically.

         III. Procedural Posture

         A. The Consolidated Class Action Complaint

         In its present incarnation, the Plaintiffs' Joint Consolidated Class Action Complaint [DE 318] alleges state-law causes of action against UTC for strict liability (Counts 1 - 3), [10" name="FN10" id= "FN10">10]negligence (Counts 4-5), [11" name="FN11" id="FN11">11] and nuisance (Count 6), [12" name="FN12" id= "FN12">12] as well as a federal claim for nuclear incident liability under the Price-Anderson Act (Count 7).[13" name="FN13" id= "FN13">13]

         Plaintiffs allege that UTC'S mishandling and improper disposal of CCOCs directly and proximately caused (1) contamination of a shared aquifer relied on by well-water reliant Acreage residents for activities of daily living; (2) widespread public concerns that it is unsafe to reside in the Acreage due to contamination of the shared aquifer; (3) localized areas of contamination at select locations within the Acreage, and (4) diminution of property values across the Acreage as a result of environmental stigma and contamination at the UTC site and surrounding areas attributable to UTC [Compl. ¶50].

         B. The Proposed Class, Class Area, Class Representatives

         The Plaintiffs propose a 60-square-mile class area which they describe as a “well-defined, homogenous, semi-rural predominantly residential neighborhood in Palm Beach County, Florida” commonly known as the “Acreage.” This area contains 17, 409 residential parcels, 14, 509 of which are improved and 2, 900 of which are vacant [DE 24-4 p. 10-11][DE 258-6].

         The proposed class they seek to certify consists of:

All persons who, on August 24, 2009 (or alternatively on February 1, 2010) owned residential property within the neighborhood in Palm Beach County, Florida, known as The Acreage, as defined on the map attached directly to this motion as Exhibit A (or alternatively on the map attached directly to this motion as Exhibit B).[14" name="FN14" id="FN14">14]

         Plaintiffs contend that either alternative definition of the proposed class meets the requirements of Rule 23(a) and Rule 23(b)(3). With this proposed definition, Plaintiffs presumably seek to show that persons owning property found within either of these metes and bounds map descriptions have suffered a common injury by virtue of “being in the vicinity of, or being under the future threat of [environmental] contamination” caused by Pratt & Whitney [DE 265, 12');">p. 12].

         The putative class representatives in Cotromano are five married couples who own or owned residential properties in the Acreage, all of whom have a child that was declared to be a member of the pediatric brain tumor cluster designated by the Florida Department of Health.[15" name="FN15" id="FN15">15] In Adinolfe, the proposed class representatives are two individual property owners, Joseph Adinolfe and Kay Samson, who claim a diminution in value of their property as a result of environmental stigma caused by UTC which clouds their property.

         Pratt & Whitney argues that class certification is inappropriate because the putative class representatives' claims are not typical of all injuries of the proposed absent class members (who are not claiming personal injury). They also object that the proposed class area is overbroad and insufficiently defined, without reference to a common injury from a common cause, and is therefore not “ascertainable.” Defendant's primary objection, however, goes to the predominance and superiority requirements of Rule 23(b)(3). It asserts that individual issues touching on the measure of damages, the causation of each class member's damage, and defenses to be raised against such claims (e.g. statute of limitations) predominate over any common issues that exist. It also contends that Plaintiffs' mass appraisal technique for assessing property damage is not a valid formulaic or mathematical method that would be appropriate for a class action under the facts of this case. Finally, Defendant asserts that a class action is not a superior vehicle for adjudication of Plaintiffs' claims because absent class members have a strong interest in controlling their own claims, which are significant.

         As noted, the Court held a lengthy evidentiary hearing on the Plaintiffs' Motion for Class Certification from January 8, 2018 through January 12, 2018. In the wake of that hearing, the Court directed both sides to submit written summations, in addition to proposed findings of fact and conclusions of law. The purpose of this post-hearing supplementary briefing was to provide an opportunity for the parties to streamline their arguments, and to designate specific exhibits and specific portions of the relevant depositions or live testimony they wish to be considered in support of or in opposition to the class certification motion. The parties have since submitted supplemental briefing, which to a limited degree, furthers this objective, and Plaintiffs' motion for class certification is now properly before the Court for disposition.

         When an expert's report or testimony is “critical” to class certification, the court is bound to make a conclusive ruling on any Daubert challenge to that expert's qualifications or submissions before it may rule on a motion for class certification. Sher v. Raytheon Co., 419 Fed.Appx. 887 (11th Cir.2011) citing American Honda Motor Co v. Allen, 13');">600 F.3d 813 (7th Cir. 2010). This obligation applies whether the Court grants or denies certification, requiring a Daubert ruling on any expert opinion which touches upon or issues critical to the Court's class certification decision. Messner v. Northshore University HealthSystem, 669 F.3d 802, 812-13 (7th Cir. 2012).

         In this case, the Court focuses its analysis on Plaintiffs' proffered expert witness on class-wide damages, Dr. John Kilpatrick. Dr. Kilpatrick holds a Ph.D in Real Estate Finance and is a licensed certified real estate appraiser in all fifty states. Plaintiffs tender Kilpatrick in effort to demonstrate that damages in this putative class action, encompassing approximately 18, 000 property owners, are susceptible to calculation on a class-wide, uniform basis throughout the proposed class area by application of “mass appraisal” methodology. Because Kilpatrick's testimony is critical to the elements of commonality and predominance under Rule 23(b)(3), the Court must examine his opinion testimony to determine whether the underlying methodology shows some hallmarks of reliability for purpose of ruling on the threshold Daubert challenge to it. See generally In re Polypropylene Carpet Antitrust Litigation, 18');">996 F.Supp. 18, 26 (N.D.Ga. 1997).

         Having done so, relying in part on the critique of Kilpatrick's methodology proffered by defense rebuttal expert, John Hauser, Sc.D., the Court finds Dr. Kilpatrick's opinions on class-wide diminution in value calculations does not satisfy Daubert and is appropriately excluded under application of Rule 702. Without Kilpatrick's testimony, [16" name="FN16" id="FN16">16] Plaintiffs cannot satisfy the predominance and superiority requirements of Rule 23(b)(3), as discussed in more detail below, and cannot carry their burden of proof under Rule 23, compelling defeat of their motion for class certification.

         IV. ANALYSIS - RULE 23 CLASS CERTIFICATION ISSUES

         A. Rule 23(a) Standard

         Class actions are an exception to the rule that litigation is ordinarily conducted on behalf of individually named parties. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348 (2011). To obtain class certification, parties must satisfy Rule 23(a)'s four threshold requirements, as well as the requirements of Rule 23 (b) (1), (2) or (3). Maldonado v. Ochsner Clinic Foundation, 1');">493 F.3d 521, 523 (5th Cir. 2007).

         Rule 23(a) sets forth the following prerequisites for class certification:

(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 ...

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