By Andrew H. Perellis and Ilana R. Morady

After the U.S. Supreme Court issued its transformative decision in Dukes, et al. v. Wal-Mart Stores, Inc., No. 10–277 (June 20, 2011), holding that plaintiffs alleging employment discrimination had failed to demonstrate the existence of common questions sufficient for class certification under Federal Rule of Civil Procedure 23(a)(2), we wrote about two cases that applied Dukes in the toxic torts context: Michigan State Court Issues One Of The First Opinions Applying Dukes In A Non-Employment Class Action Setting, July 20, 2011 and Supreme Court’s Tightening of Class Action Standards in Dukes Relied on by Third Circuit to Defeat Proposed Medical Monitoring and Toxic Tort Class, August 26, 2011. A new case from Louisiana shows that the trend of courts relying on Dukes in the toxic torts context continues.

In Kieta Alexander, et al. v. Norfolk Southern Corporation, et al., the Supreme Court of Louisiana held that the plaintiffs had not satisfied the commonality requirement for class certification under Louisiana’s equivalent of Rule 23(a)(2). The plaintiffs sued several railroad and chemical companies after ethyl acrylic fumes leaked from valves on two railroad cars. Approximately twenty people were treated at the scene for chemical exposure. The district court granted the plaintiffs certification, and the appellate court affirmed, but the Supreme Court found that the lower courts had erred because each member of the proposed class would have had to offer different facts to establish liability and damages at trial.

The Court based its decision on testimony from toxicologists that only a fraction of the population would exhibit physical symptoms of exposure to ethyl acrylic fumes at the “extremely low concentrations” involved in the release. Moreover, the symptoms complained of (for example, coughing, nausea, and eye irritation) are “common symptoms with a myriad of causes.” If the plaintiff class were to be certified, the Court held, “the class would degenerate into a series of individual trials.”

Kieta confirms that Dukes continues to have far-reaching implications. The bar for plaintiffs attempting to demonstrate commonality has been raised, not just in the federal employment discrimination context, but in the state toxic torts context as well.