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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT WEST VIRGINIA
CRYSTAL GOOD,
West Virginia residents, et al.
on behalf of themselves and all others
similarly situated,

Case No.: 2:14-CV-01374
Consolidated with:

Plaintiffs,

Case No. 2:14-11011
Case No. 2:14-13164
Case No. 2:14-13454

v.
AMERICAN WATER WORKS
COMPANY, INC.,
a Delaware corporation, et al.

CONSOLIDATED CLASS
ACTION

Defendants.

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT
OF MOTION FOR CLASS CERTIFICATION
INTRODUCTION
Our justice system embraces the class action device as the way to resolve the fallout from
man-made disasters, from Exxon Valdez to the BP oil spill. These cases and many others provide
a template for this Court to guarantee access to justice to the West Virginia businesses and
citizens impacted by the Elk River Spill. A class action is the superior and, for the vast majority
of those impacted, only mechanism through which the common issues can be adjudicated
effectively.
On January 9, 2014, over 10,000 gallons of Crude MCHM1 leaked from a rusty tank,
flowed down the Elk River, and eventually contaminated the water of a quarter of a million

1

Crude MCHM is not found in nature and is a byproduct of the manufacture of a more
valuable commodity, 1,4-cyclohexanedimethanol (“CHDM”), a chemical used to make
1

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people served by West Virginia American Water’s (“WVAW”) treatment plant in Charleston.
Defendants place all of the blame for the incident and the resulting loss of community tap water
on Freedom Industries and its rusty tank. However, the evidence adduced thus far proves that the
resulting tap water loss would not have occurred but for a decades-long string of negligent acts
and misfeasance by WVAW and Eastman Chemical Company (“Eastman”).
On the morning of January 9th, WVAW missed one last chance to keep the Spill from
turning into a crisis. When confronted by DEP officials with the fact that Crude MCHM was
leaking into the Elk River, Freedom Industries owner, Dennis Farrell, warned WVAW personnel
of the toxic plume making its way down the partially frozen river to the KVTP intake:
I asked him [the WVAW personnel] if it [MCHM] was in the plant yet, and he
said, No. And I said, Good. You need to turn the pumps off. And he said, We’re
not going to do that, we’ve already made our inspection and we got these fancy
filters down here and we’re going to put two more filters on line so we can catch
it, and that he wasn't going to turn the pump off. And I suggested that he turn the
plant off. And he said that they were confident their filters could handle it, for me
not to worry about them, to worry about myself and, you know, good luck dealing
with the issues for having a spill.
See Exhibit _1__, Dennis Farrell Deposition at p. 22/22-p.23/9.
WVAW issued a “Do Not Use” (“DNU”) order for affected areas on January 9, 2014,
that was lifted in phases over the next week or more. Average customers were not permitted to
use tap water other than for flushing for approximately 6 days. A state of emergency was
declared. Testing revealed that Crude MCHM remained present in the affected area’s public
water system over a month. On February 28, 2015, the Governor announced the end of the
declared state of emergency.

polyesters used in food packaging applications. Eastman sells Crude MCHM “as is” and is
barely marketable as a commercial product. It is used as a coal flotation frother.
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Plaintiffs are businesses, wage earners and WVAW customers who were affected by the
disaster through contamination of their water supply. Defendants could have prevented or
avoided the crisis with better precautionary measures, compliance with applicable regulations,
and the use of reasonable care. Specifically, among other things, Eastman failed to avoid the
foreseeable harm posed by Crude MCHM by commercializing a waste product and selling it to
Freedom Industries without appropriate oversight, reasonable instructions, or warnings,
including that Crude MCHM should be stored in non-corrosive, stainless steel tanks. Moreover,
both Eastman and WVAW failed to guard against the risk presented by Freedom Industries’
facility just upstream from the Charleston area’s sole water source. In flagrant violation of
industry standards, WVAW was completely unprepared for a spill affecting its sole source of
supply and lacked sufficient water reserves to withstand a shutdown of its sole intake for any
length of time. WVAW should have determined what chemicals were stored or processed at the
site, assessed and planned for the risk they presented to the water supply, maintained sufficient
water reserves at all times, and secured an alternate water supply to use in the event of
foreseeable emergency.2
Here, the overarching issue of whether Defendants are liable should be isolated within the
Court’s discretion under Federal Rule of Civil Procedure 23(c)(4). Further, the Court should
certify a single Class of affected businesses and WVAW customers under Rule 23(b)(3), to try to
verdict the issues of damages for lost water as the result of the DNU order, because those
damages can be measured by common formula or formulae. Through the use of these Rules, the
2

As the Court is aware, there exists substantial dispute over the apparent failure of
WVAW to build the Kanawha Valley Treatment Plant (“KVTP”) in accordance with the plans
approved by the Public Service Commission (“PSC”) in 1969. Those plans called for the
continued use of the then-existing source water intake upstream from the Freedom Industries
site, which, if followed, would have avoided the impact of the Spill on the water supplied by
WVAW.
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Court can materially advance the litigation, gain the efficiencies inherent in the class action
device, and streamline the remaining claims for full adjudication by implementing a trial plan
similar to those commonly used in resolving claims arising out of man-made disasters. After the
Class trial, which would dispose of common issues, the Court can order a mechanical claims
processing phase and causation and damage determinations for claims that do not relate to the
common lost water experience of the Class—i.e., the other types of individualized damage to
Class Members, such as economic loss during the state of emergency, permanent property
damage, and personal injury damages, if any. These damages can be resolved with mass tort
treatment through bellwether and group trials, as the Court deems appropriate.
STANDARD OF REVIEW
Rule 23(c)(4) provides that “when appropriate, an action may be brought or maintained
as a class action with respect to particular issues.” Rule 23(c)(4) authorizes a hybrid approach to
class certification and “encourages separating issues for certification where economies of trial
may be achieved.” In re A.H. Robins Co., Inc., 880 F.2d 709, 713 (4th Cir. 1989). The Fourth
Circuit has noted that in appropriate cases, Rule 23(c)(4) authorizes district courts “to isolate the
common issues” and proceed with class treatment of those issues “[e]ven if common questions
do not predominate over the individual questions so that class certification of the entire action is
warranted.” Gunnells v. Healthplan Services, Inc., 348 F.3d 417, 426 (4th Cir. 2003), quoting
Valentino v. Carter-Wallace Inc., 97 F.3d 1227, 1234 (9th Cir. 1996). In short, courts, including
the Fourth Circuit, have realized that the use of the class device “need not resolve all issues in
the litigation.” Robins, 880 F.2d at 735. In fact “all circuits are coming into relative agreement
that in appropriate cases, Rule 23(c)(4) can be used even though full Rule 23(b)(3) certification
is not possible due to the predominance requirement.” Rule 23 Subcommittee Report to the Civil

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Rules Advisory Committee (Apr. 9-10, 2015) at 39. Indeed, as the Fourth Circuit has recognized,
if this were not the case, Rule 23(c)(4) would be rendered “superfluous.” Gunnells, 348 F.3d at
439.
It is Plaintiffs' burden to “affirmatively demonstrate” compliance with Rule 23. WalMart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2551 (2011). However, the district court has an
independent obligation to perform a “rigorous analysis” to ensure that all of the prerequisites
have been satisfied. EQT Production Co. v. Adair, 764 F.3d 347 (4th Cir. 2014). Rule 23 does
not, however, give district courts a “license to engage in free-ranging merits inquiries at the
certification stage.” Amgen, Inc. v. Connecticut Retirement Plans and Trust Funds, 133 S.Ct.
1184, 1194-95 (2013). A court should consider merits questions “to the extent – but only to the
extent – that they are relevant to determining whether the prerequisites for class certification are
satisfied.” Id. at 1195.
ARGUMENT
Plaintiffs seek certification under Rule 23(c)(4) of an issues class for a determination as
to the liability of the Defendants and under Rule 23(b)(3) for the subset of damages claims
resulting from the loss of use of tap water during the period of the DNU order by members of a
Class of affected WVAW business and household customers. The request for certification as to
liability issues under Rule 23(c)(4) includes determining whether exemplary damages should be
imposed. Plaintiffs and the Class have a common interest in determining Defendants’ liability,
no matter what types or varieties of damages they suffered. Plaintiffs seek isolation of the
liability and exemplary damages issues together with certification of the Class, defined as
follows:
All persons residing in dwellings supplied tap water by KVTP on January 9, 2014; and

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All persons or entities who owned businesses operating in real property supplied tap
water by KVTP on January 9, 2014; and
All persons who were regularly employed as hourly wage-earners for businesses that
operated in real property supplied tap water by KVTP on January 9, 2014.
Certification will allow for a Trial Plan whereby liability for all damage claims of the
Class may be determined, Class members’ claims for lost water can be reduced to a verdict under
Rule 23(b)(3), and damages for lost water can be awarded through a simplified claims process.
Certification is appropriate because a liability finding will materially advance the litigation and
the proposed lost water damages Class meets all prerequisites for a Rule 23(b)(3) class action.
Pursuant to Plaintiffs’ Trial Plan, the following damage claims of the Class can be reduced to a
verdict: 1) damages to WVAW-supplied residential households from loss of use of water during
the period that the DNU order was in effect (“DNU period”); 2) damages to businesses from loss
of use of water during the DNU period; and 3) damages to wage-earners from lost earnings
during the DNU period. See Trial Plan, Exh. _2_. Class Members’ claims of personal injury and
other losses that are not dependent on the common water loss experience are not proposed to be
addressed as part of the class-damages trial phase. These damages can be addressed in
subsequent proceedings, with the benefit of the jury’s finding of liability common to all claims of
any stripe.
A. Issues Certification Under Rule 23(c)(4) is Appropriate.
Rule 23(c)(4) states that when appropriate, “an action may be brought or maintained as a
class action with respect to particular issues.” The Fourth Circuit and other circuit courts, as well
as the Southern District of West Virginia, all have recognized that courts should take “full
advantage of this provision” in order to “reduce the range of disputed issues in complex litigation

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and achieve judicial efficiencies.” Gunnells, 348 F.3d at 426; Cent. Wesleyan Coll. v. W.R.
Grace & Co., 6 F.3d 177, 185 (4th Cir. 1993); see also Hohider v. United Parcel Service, Inc.,
574 F.3d 169, 200 n. 25 (3d Cir. 2009); Robinson v. Metro-North Commuter R.R., 267 F.3d 147,
167 (2d Cir. 2001); Black v. Rhone-Poulenc, Inc., 173 F.R.D. 156, 159 (S.D. W. Va. 1996).
Certification with respect to particular common factual and legal issues concerning liability and
comparative fault is appropriate under Federal Rule of Civil Procedure 23(c)(4). Gunnells, 348
F.3d at 427-28.
Here, the particular common issues of liability, comparative fault, and the ratio of
punitive damages to actual harm are common to all claimants in the litigation as a whole, no
matter what type of injury was suffered. Resolving these issues on behalf of all claimants
through common proof will materially advance the disposition of the litigation, and therefore is
appropriate. See In re Allstate Ins. Co., 400 F.3d 505, 508 (7th Cir. 2005) (“A single hearing” on
liability issues through use of Rule 23(c)(4) “decided first” makes for an “efficient . . . hybrid
procedure” which avoids need for litigating class-wide issues of liability “in more than a
thousand separate lawsuits”).
As the Fourth Circuit acknowledges, Rule 23(c)(4) “contemplates possible class
adjudication of liability issues.” Gunnells, 348 F.3d at 428. Isolation of liability issues under
Rule 23(c)(4) is commonplace. See e.g. Olden v. LaFarge Corp., 383 F.3d 495, 509 (6th Cir.
2004); Houser v. Pritzker, 28 F. Supp.2d 222 (S.D.N.Y. 2014); Jacob v. Duane Reade, Inc., 293
F.R.D. 578 (S.D.N.Y. 2013); In re Motor Fuel Temperature Sales Practices Litig., 292 F.R.D.
652 (D. Kan. 2013); Simon v. Philip Morris Inc., 200 F.R.D. 21, 30 (E.D.N.Y. 2001). Bifurcating
the general liability issue allows the Court to await the outcome of a liability trial before deciding
how to provide full relief to individual class members. For this reason, the Rule 23(c)(4) method

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“has been particularly useful in the mass tort context” to “structure unwieldy class action
lawsuits in a manner that best serves the objectives of Federal Rules of Civil Procedure 1 and
23.” Simon, 200 F.R.D. at 30; see also Valentino, 97 F.3d at 1234; In re Copley Pharmaceutical,
Inc., 161 F.R.D. 456, 461 (D. Wyo. 1995); Cook v. Rockwell Int’l Corp., 151 F.R.D. 378, 385
(D. Colo. 1993).
Plaintiffs’ proposal as outlined herein is consistent with the goal of Rules 23(c)(4) and
(b)(3) because it “materially advances the disposition of the litigation as a whole.” Manual for
Complex Litigation (Fourth) §21.24 at 273 (2004); Jacob v. Duane Reade, Inc., 293 F.R.D. 578,
593 (S.D.N.Y. 2013); In re Tetracycline Cases, 107 F.R.D. 719, 727 (W.D. Mo. 1985). Pursuant
to Plaintiffs’ proposal, Defendants’ liability may be determined and the damage claims of the
Class that stem from the common water loss experience can be reduced to a verdict, materially
advancing the litigation. Any Class Members’ claims of personal injury, permanent property
damage, injunctive relief, post-DNU business economic loss, post-DNU residential loss, or
medical monitoring are not proposed to be part of the class-damages trial phase. The liability
finding applicable to remaining claims would be addressed in phases after the class trial’s
conclusion.
Rule 23(c)(4) thus provides a viable solution in these circumstances where some, but not
necessarily all, forms of the Class’ damages can be determined class-wide, so long as the Class
satisfies the requirements of Rule 23(a) and (b) with respect to liability. Houser, 28 F. Supp.3d at
253-54. In any event, the common issue of liability, in and of itself, warrants class treatment, as a
finding of wrongdoing by the defendants eliminates retrying that issue in tens of thousands of
cases. In re American Continental Corporation/Lincoln Savings and Loan Sec. Litig., 140 F.R.D.
425, 431 (D. Ariz. 1992) (forcing each class member to prove nucleus of liability case again and

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again is “folly”). This is especially true as to WVAW’s proof of its impracticability defense to
each class member’s breach of contract claim. See Order dated June 3, 2015 at p. 24 [Dkt. 378].
B.

The Proposed Class Meets All Class Action Prerequisites.
1. The Class is Sufficiently Numerous.
The first requirement of Rule 23(a) is that “the class is so numerous that joinder of all

members is impracticable.” Fed. R. Civ. P. 23(a). No specified number is needed to satisfy this
requirement. Brady v. Thurston Motor Lines, 726 F.2d 136, 145 (4th Cir. 1984). Each case turns
on its particular facts. Id. Joinder of all class members need only be impracticable, not
impossible. United Broth. of Carpenters Local 899 v. Phoenix Associates, Inc., 152 F.R.D. 518,
522 (S.D. W. Va. 1994). Relevant factors include estimated size and geographic diversity of the
class, difficulty in identifying class members, and negative impact on judicial economy from
individual suits. Id.
Based upon computerized water usage and billing records obtained in discovery from
WVAW, together with United States Census Bureau data, Plaintiffs reasonably estimate the
number of members of the Class to be _224,180; each of whom shared the common lost water
experience. See Attached Exhibit 3- Gilbert Deposition at pg.1 48, Gilbert Expert Report at pg.
2_. In re Oil Spill by Oil Rig Deepwater Horizon, 295 F.R.D. 112 (E.D. La. 2013) (“Deepwater
Horizon”) (numerosity satisfied if plaintiffs demonstrate “some evidence of a reasonable
numerical estimate of purported class members”). Additionally, “many courts have certified
classes defined by geography.” Collins v. Olin Corp., 248 F.R.D. 95, 101 (D. Conn. 2008); see
also Cook, 151 F.R.D. at 382; Boggs v. Divested Atomic Corp., 141 F.R.D. 58, 60 (S.D. Ohio
1991). With this high an estimate of people affected by the DNU order, joinder of all members is
impracticable and numerosity is surely met.

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2. Common Questions of Law or Fact Exist.
The second Rule 23(a) requirement is “questions of law or fact common to the class.”
Fed. R. Civ. P. 23(a)(2). Although the rule speaks of common questions, what matters is “the
capacity of a classwide proceeding to generate common answers” apt to drive resolution. WalMart, 131 S.Ct. at 2551. A single common question will suffice, if of such a nature that its
determination “will resolve an issue that is central to the validity of each one of the claims in one
stroke.” Id.
There are a considerable number of common issues of law and fact in this case, which
include: the water company Defendants’ impracticability defense to the class breach of contract
claim; whether the water company Defendants are liable to the Class for negligently failing to
prepare for a spill such as this, and for failing to prevent contamination of the water supply
following the release of Crude MCHM; whether Defendant Eastman is liable for negligence in
failing to conform to the industry standard of care relating to product stewardship and for failing
to warn customers of Crude MCHM’s corrosivity and other hazards; and as described above, the
scope of lost water damages caused to the Class by the Defendants’ conduct. The Court
identified numerous common issues of law and fact driving this litigation in its Orders dated
April 9, 2015, on American Water Works Company, Inc.’s motion to dismiss (“American
Water”); dated June 3, 2015 on WVAW and American Water Works Service Company’s motion
to dismiss (“Service”); and dated June 4, 2015 on Eastman’s partial motion to dismiss. [Dkt. 335,
378, 379].
These and other common issues relate to and affect the rights of the Class. As stated in
Deepwater Horizon, where one single event gave rise to the claims of each of the class members
and all legal questions arose and would be determined under a common legal framework, “this is

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not an Amchem scenario, in which the class is fragmented by a multiplicity of state laws that
control the viability of claims.” Deepwater Horizon, 295 F.R.D. at 134; Amchem Prods., Inc. v.
Windsor, 521 U.S. 591 (1997). After a mass accident, where the predominant evidence as to the
defendants’ conduct and liability will be applicable to the claims of all class members,
commonality is satisfied. Bates, 132 F.R.D. at 163; Bentley, 223 F.R.D. at 482; Collins, 248
F.R.D. at 101 (commonality met where plaintiffs presented common issues of law pertaining to
whether defendant was liable for groundwater contamination, under various legal theories). This
principle remains true even if there are multiple defendants each with an alleged role, and even if
Plaintiffs assert different legal theories against those defendants. Watson, 979 F.2d at 1022
(commonality not obviated because plaintiffs had different theories for liability of defendants for
conduct arising out of same event).
In Self v. Illinois Cent. R.R., 1998 WL 122604 (E.D. La. Mar. 18, 1998), a train
derailment led to an evacuation and blockade which affected people and businesses within a half
mile area for 21 hours. Plaintiffs sought damages for inconvenience for having been prevented
from entering the geographic area during the blockade. Certifying a class, the court found
commonality met since the shared experience of the plaintiffs was the basis for the suit. Self,
1998 WL 122604 at *3.
Here, all residential class members lost the benefit of having clean, potable tap water in
their residences; all businesses lost the benefit of having clean, potable tap water to use for
commercial purposes; and, all workers like plaintiff Maddie Fields lost wages due to business
closures. Throughout the geographical region supplied by KVTP tap water on the evening of
January 9th, 2014, every business and residence lost access to clean, potable water. The fact that
individual class plaintiffs may have had different ways of compensating for the loss of clean,

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potable tap water caused by the Defendants’ alleged misconduct is “immaterial” for purposes of
commonality. Carpenters, 152 F.R.D. at 522; Deepwater Horizon, 295 F.R.D. at 136 (“some
variation in damages resulting from this single incident does not defeat the commonality
inquiry”).
3. Plaintiffs’ Claims are Typical of the Claims of the Class.
The third Rule 23(a) requirement is that “claims or defenses of the representative parties
are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). The rule requires only
that the representatives’ claims be typical, not that the claims be identical. Carpenters, 152
F.R.D. at 522. When the claim arises out of the same remedial theory, factual variations are
insufficient to preclude class action treatment. Id.; Bates, 132 F.R.D. at 163.
Plaintiffs are members of the class. All Plaintiffs except Maddie Fields either reside or
own a business in the geographical area supplied by KVTP tap water. All were directed not to
drink, cook, wash with, or otherwise come into contact with the water supplied by Defendant
WVAW.
Plaintiffs’ claims are typical of the Class claims.

As in Deepwater Horizon, the

exposures “occurred during a relatively short period of time in a tightly defined geographic
area,” and further, the named Plaintiffs allege injuries (the common water loss experience3) that
“have the same essential characteristics” as the class members. Deepwater Horizon, 295 F.R.D.
at 136.
Plaintiffs’ claims arise from the same course of conduct as the claims of the Class.
Further, the claims of both Plaintiffs and all Class Members are based on the same behavior by
Defendants, making Plaintiffs’ claims typical. Muniz v. Rexnord Corp., 2005 WL 1243428 at *3
3

In the case of Maddie Fields, it is the common wage loss experience of those class
members in her situation.
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(N.D. Ill. Feb. 10, 2005) (typicality met where “defendants’ alleged course of conduct – the
misuse and mishandling of chemical by the defendants – was the same for all of the proposed
class members”). When the “focus [of the case] is on the relatedness of the named plaintiffs’
claims and those of the class members,” even if the harm suffered by the named plaintiffs differs
in degree from that suffered by the class members, typicality is not defeated. Cook, 151 F.R.D. at
386.
A class action, “of course, is one of the recognized exceptions to the rule against claimsplitting.” Gunnells, 348 F.3d at 432. In Bentley, the court rejected the notion that by splitting
their claims and asserting only claims for property damage, plaintiffs were not typical. In that
case, the defendant argued that the adjudication of property damage claims could have res
judicata implications for any personal injury actions that class members may wish to bring in the
future, and that as such, plaintiffs were not typical of the class nor were they adequate
representatives. The Bentley court found that under interpretations of the Supreme Court’s
decision in Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 880 (1984), that res
judicata concerns were not implicated in these circumstances,4 and thus defendants’ typicality
and adequacy argument had no merit. Bentley, 223 F.R.D. at 483; see also Cameron v. Tomes,
990 F.2d 14, 17 (1st Cir. 1993).
4. Plaintiffs Will Adequately Protect the Interests of the Class.
The fourth Rule 23(a) requirement is that “representative parties will fairly and
adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The adequate
representation inquiry “serves to uncover conflicts of interest between named parties and the

4

Bentley recognized that a class action judgment binds the class members as to matters
actually litigated but does not resolve any claim based on individual circumstances that was not
addressed in the class action. Bentley, 223 F.R.D. at 483.
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class they seek to represent.” Amchem, 521 U.S. at 625. When assessing adequacy, the Court
must consider the abilities of both the attorneys and the class representatives. Carpenters, 152
F.R.D. at 522. The two basic guidelines are (1) absence of conflict between the representative
and the members of the class; and (2) assurance that the representative will vigorously prosecute
the matter. Stay the Course West Virginia v. Tennant, 2013 WL 209479, *3 (S.D. W. Va. Jan. 17,
2013).
Here, Plaintiffs will adequately represent and protect the interests of the Class. Plaintiffs
could not represent the Class adequately if their interests were antagonistic to or in conflict with
the objectives of those being represented. Barton v. Constellium Rolled Products-Ravenswood,
LLC, 2014 WL 1660388, *4 (S.D. W. Va. Apr. 25, 2014). However, Plaintiffs and their counsel
are aware of no conflicts between Plaintiffs and absent Class Members. The majority of bodily
injuries among the Class Members were transient irritations, rashes, nausea and the like, which
have now resolved such that they share the common interest of immediate payment. These
factors weigh in favor of a finding that the Plaintiffs are adequate representatives of the cohesive
Class. In re Serzone Products Liab. Litig., 231 F.R.D. 221 (S.D. W. Va. 2005); see also
Deepwater Horizon, 295 F.R.D. at 140 (class representatives were adequate where class
consisted exclusively of individuals who had suffered a past exposure and, by definition, an
injury).
Plaintiffs are knowledgeable concerning the subject matter of this action and will assist
counsel in the prosecution. Each plaintiff is motivated and understands their responsibility to the
Class Members. See attached as Exhibit _5_, _Class Representative Testimony Chart. Plaintiffs
have retained counsel experienced in prosecution of class actions who will adequately represent

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the class. See motion to appoint interim counsel (Dkt. 33); Order dated June 3, 2014 regarding
same (Dkt. 39).
C. The Class Satisfies the Requirements of Rule 23(b)(3).
Having satisfied the requirements of Rule 23(a), Plaintiffs then need only establish that at
least one of the three provisions of Rule 23(b) have also been satisfied. Here, in conjunction with
the issues class determining liability pursuant to Rule 23(c)(4), Plaintiffs seek certification
pursuant to Rule 23(b)(3) such that common “water loss” damages may be tried to a verdict.
Rule 23(b)(3) essentially has two components: predominance and superiority. In the Fourth
Circuit, a mass tort action for damages “may be appropriate for class action, either partially or in
whole.” Central Wesleyan Coll. v. W.R. Grace & Co., 6 F.3d 177, 185 (4th Cir. 1992); see also,
Gunnells, 348 F.3d at 423. Given the contours of Plaintiffs’ Trial Plan, this is the appropriate
circumstance for the certification of a Rule 23(b)(3) Class in the mass tort disaster context.
Indeed, trying the common liability issues alone merits class certification, as resolving the issues
about the conduct of the Defendants common to all class members is superior to many thousands
of individual cases.
1. Common Questions of Law or Fact Predominate Over Individual Questions.
The predominance requirement is similar to but “more stringent” than the commonality
requirement of Rule 23(a). Linehart v. Dryvit Systems, Inc., 255 F.3d 138, 146 n. 4 (4th Cir.
2001). Whereas commonality requires little more than the presence of common questions,
predominance requires that “questions of law or fact common to the members of the class
predominate over any questions affecting only individual members.” Fed. R. Civ. P. 23(b)(3).
The predominance requirement “tests whether proposed classes are sufficiently cohesive to
warrant adjudication by representation.” Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 319

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(4th Cir. 2006). The inquiry focuses not only on common questions but also on how those
questions relate to the heart of the controversy. Amchem, 521 U.S. at 623. If Defendants’
common conduct bears on central issues, there is a basis for concluding that individual issues
will not predominate. Id.
Here,

Defendants’

conduct

presents

predominant

common

factual

questions.

Fundamentally, all of the Plaintiffs’ claims arise out of a single course of conduct by Defendants
that caused the Spill and resultant contamination. Although the incident affected a sizeable
geographic area, it can be traced back to the actions of the small group of Defendants named
here.
Plaintiffs’ claims against the water company Defendants trace back to the design and
permitting of the KVTP itself in the late 1960s and early 1970s. Plaintiffs allege that the
proposals for the KVTP approved by both of the relevant regulatory agencies included
connecting a pre-existing second intake at Coonskin Shoals as a safeguard against contamination
via the primary intake at the KVTP plant site. It appears that the water company Defendants
abandoned the plan to maintain the Coonskin intake upon the construction of the KVTP, without
informing the relevant agencies of the change in plans. The question as to whether the KVTP, as
approved by both agencies, was to continue to make use of the pre-existing intake at Coonskin
Shoals, at least as an auxiliary intake, for the express purpose of being available in the event of a
spill on the lower Elk River below the Coonskin Shoals intake, is common to all class members
and central to the case. It is the kind of disputed question that creates a “genuine controversy.”
Amchem, 521 U.S. at 623.
With that inauspicious beginning, the water company Defendants then compounded the
problematic siting of their water intake with a history of negligent management choices

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involving inadequate water reserves, substandard planning, poor operational protocols and
decisions, and faulty risk assessment, culminating in the impotent acts and omissions of these
Defendants on January 9th when they were told of the Spill. At that point, water company
personnel operating the KVTP, having carelessly depleted their already-inadequate reserves over
the days before the Spill by allowing several of the main storage tanks to go empty rather than
increasing production in response to the increased demand associated with a cold spell,5 and
having never done a risk assessment of potential contaminants stored just upstream at Freedom,
left the intakes fully open and started treating the incoming water with chemicals that actually
exacerbated the problem.
Plaintiffs’ expert on water company siting, design and operations issues explained in his
deposition and report that the water company Defendants committed inexcusable acts of
negligence for anyone familiar with the operation of water treatment plants, such as not knowing
the risks presented by known nearby upstream chemical facilities, permitting storage tanks to go
completely empty while not utilizing excess production capacity, not being in a position to close
the plants’ intakes, and then treating the water with an improper chemical. See attached as
Exhibit _6_, Deposition Excerpt from Dr. David Mazyck; Exhibit _7_, Expert Report of Dr.
David Mazyck.

5

The KVTP’s rated capacity is 50 mgd (million gallons per day). WVAW’s petition to
increase to that production capacity was presented to the PSC as a capacity that was needed in
the event of an unusually high daily demand, not to cover average daily demands. During the
cold spell in the several days prior to the Spill, WVAW only very slowly increased production at
all, and never increased production beyond 43 mgd, despite clearly having the ability to do so,
despite having charged ratepayers for the capital improvements that allowed it to do so, and
despite the fact that its operators had access to computer screens showing the tank levels of some
of the main system storage tanks (including the Stadium View tank, one of the four large, main
tanks) slowly dropping from levels that were already too low to completely empty over the 72
hours preceding the spill.
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Each of these issues relating to the water company Defendants’ liability is or is expected
to be contested.6 The issues require extensive discovery and expert investigation and opinion
testimony about the design, hydraulics, and operation of WVAW’s Kanawha Valley plant and
distribution system, as well as relevant industry standards. These water company liability issues
are central and common to each class member’s claim, and constitute a large portion of what
qualifies these claims as genuine controversies.
As the Court noted in its Order dated April 9, 2015 [Dkt. 335], American Water, the
parent company of the water company Defendants, could be found directly liable for its
involvement in the operations of its wholly-owned subsidiaries. American Water itself petitioned
the government of West Virginia to build and maintain the water system for the entire Kanawha
Valley. To the extent it misrepresented the as-built plans or otherwise failed to ensure the
construction and operation of a safe plant, it bears responsibility for the Spill. Moreover, as
plaintiffs have alleged, due to its dominance over the subsidiary operating companies, whether
American Water is entitled to hide behind the veil of its corporate structure is a predominant
issue in the litigation.
Plaintiffs’ claims against Eastman also demonstrate predominance of common questions
binding the Class. Plaintiffs’ claims arise from Eastman’s failure to comply with recognized
industry standards as evidenced by industry management codes and guidelines, and its failure to
warn of the hazards of Crude MCHM, including its corrosive nature. Specifically, the parties
sharply disagree about the extent to which the chemical manufacturing industry’s “Responsible
Care” guidelines evidence a standard of reasonable care for industry association members to take

6

The issues relate both to Plaintiffs’ negligence claims, for which Plaintiffs bear the
burden of proof, and to Defendants’ impracticability defense to the breach of contract claims, for
which Defendants bear the burden of proof.
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action to ensure that a downstream user’s storage and handling of a product poses a risk to public
safety. A related factual dispute centers around whether Eastman discovered information about
Freedom’s storage and handling facilities and practices that, under the prevailing industry
standard of care, should have resulted in Eastman taking corrective measures, including
terminating the relationship. That dispute is also central to all class members’ claims.
Under Responsible Care, to promote public safety, chemical manufacturers must “know
the customer” and ensure that the product they sell does not pose an undue risk to all members of
the “value chain,” which includes downstream distributors, users and ultimately the public. Exh.
__8_, Stanton Report; Exh. _9__, RCMS Sec. 4.4. One of the now-known hazards of Crude
MCHM is its noxious, pungent odor. Once Crude MCHM impacted the public water supply the
odor characteristic alone rendered the water non-potable and unsuitable for human
consumptionThus, each class member impacted by the Spill shares a common interest in proving
that Eastman knew or should have known of the risk posed by Freedom Industries’ decrepit
facility mere feet from the banks of the sole source of water for the entire Kanawha Valley, and
should have taken corrective measures.
The evidence adduced to date shows the materiality of this predominant issue. The fact
that respected industry experts disagree on Eastman’s conduct according to industry standards –
and indeed the existence and scope of the standards themselves – is itself important to the
Court’s analysis. Each class member would have to retain an expert to opine on the issue. An
Eastman employee visited the site and photographed the storage tanks, yet failed to perform a
perfunctory assessment of the quality of the operation, or report the shoddy appearance of the
facility to Eastman’s product stewardship personnel. Despite clear industry expectations that she
would both be trained in Responsible Care and ensure safe storage and handling of dangerous

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chemicals, the employee testified she lacked sufficient training to realize the danger. See
attached as Exhibit 10, Deposition Excerpt of Glenda Flick
Further issues common to the Class relate to whether and to what extent Crude MCHM is
corrosive, whether and to what extent the Crude MCHM itself corroded the tank that failed, and
whether Eastman sufficiently or adequately warned Freedom of the hazards inherent in its
product, including its corrosivity. Resolution of these issues, which each class member would
have to prove absent the class action procedure, lies at the heart of the case against Eastman and
Plaintiffs have developed substantial evidence to date. For example, product profiles maintained
by the “Special Material Business Unit” (SMBU) personnel but unavailable to Eastman’s health,
safety or environmental staff warned that Crude MCHM presented a corrosion risk to carbon
steel.
“Eastman recommends NOT loading into carbon steel [rail cars];
only [stainless steel] lined due to corrosion. There are esters in
MCHM such as MMCC which is the ester before it is
hydrogenolysis to the MCHM alcohol. When esters are in contact
with water react to form an acid and an alcohol.”
See attached Exhibit 11- EMN-00017- SMBU Crude MCHM
Product Profile at EMN-00018.
Long-time SMBU employee and principal contact with Freedom Industries, Glenda
Flick, input this information into the restricted access SMBU data collection after learning it
from Eastman chemical engineer, Dr. Brent Tennant. Dr. Tennant has worked in the processing
of CHDM and its by-product, Crude MCHM for decadesHe testified that Crude MCHM could
cause steel to disintegrate if stored for 5 -10 years in a carbon steel tank. See attached Exhibit
_12__, Deposition Excerpt Glenda Flick; Exhibit 13__, Deposition Excerpt Dr. Brent Tennant.
Mr. Farrell testified that no one from Eastman ever communicated to him that Crude
MCHM could corrode carbon steel tanks. He testified that he and his staff reviewed Eastman’s

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MSDS sheets which made no mention of any special storage and handling requirement related to
corrosivity. He further testified that had Eastman told him of the chemical’s corrosivity he would
have switched to a stainless steel tank. See Exhibit 14, Deposition Excerpt Dennis Farrell.
Whether Eastman’s failure to warn Freedom Industries about Crude MCHM’s corrosivity
is a breach of its duty owed to class members to act with reasonable care, including under the
Responsible Care guidelines, is a central and common issue. Responsible Care is a chemical
industry initiative to promote safety throughout the industry’s value chain. Eastman’s director of
product stewardship (and safety) at the time of the Spill testified that everyone in the company
was to be trained and empowered to carry out the tenets of Responsible Care. He agreed that
Eastman should have communicated the proper safe storage requirements of Crude MCHM to its
purchasers. See Exhibit _9_, Responsible Care Management System; Exhibit _15__, Shrum
excerpts.
2.

Courts Routinely Grant Certification in Man-made Disaster Cases

Because common issues involving the defendants’ conduct bind the claims of class
members, from Exxon Valdez to the BP Oil Spill, courts consistently deploy the class action
procedure to assist in resolving damage claims arising out of man-made disasters. In Turner v.
Murphy Oil, 234 F.R.D. 597 (E.D. La. 2006), a class was certified under similar circumstances.
Plaintiffs alleged business or residential property damage as result of oil discharge from
defendant’s refinery, and proposed a trial plan similar to Plaintiffs’ Trial Plan here, whereby
liability was separated from the damages phase, with “alike” theories advanced on liability by all
named plaintiffs. Id. at 605. The individual differences in types of damage and degree of
contamination were differences that did not relate to the plaintiffs’ legal theories regarding
liability. Id. As a result, no individualized inquiry would be too extensive and the remaining

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issues all involved “great factual similarities” between the plaintiffs and their claims. Turner,
234 F.R.D. at 607 n. 6. The court concluded:
[t]hus, Murphy’s liability would be appropriate for class treatment.
The presence or degree of injury or damage is an issue of quantum
that may be dealt with individually in a bifurcated proceeding, if
necessary. Accordingly, the Court finds that the predominance
requirement
of
Rule
23(b)(3)
is
met[.]
Id.
The case for class certification in the instant case is even stronger than in Turner because
the geographical boundaries delineating the area of contamination and the fact of contamination
for those within the boundaries are easily established here. The only differences between class
members have to do exclusively with damages—there are relatively small differences in the
number of days their water was lost to contamination (whether four, five, six, or seven), and
there may be differences in how that contamination affected them and how they were able to
respond that impact damages. In Turner, on the other hand, the precise boundaries of the area
contaminated by the oil leak were unknown at the class certification phase, and therefore there
may have been large differences in the extent of contamination (as well as all of the other
potential differences that impact damages), and even the fact of contamination may have varied
from one class member to the next. See id. at 606 (“Defendant argues that the oil did not spread
uniformly throughout the affected area, and that different homes in the area received differing
degrees, if any, of oil contamination.”). The court, however, held that even the potential for
individual differences in the fact of contamination did not predominate over the common issues.
See id. (“[T]he central factual basis for all of Plaintiffs' claims is the leak itself—how it occurred,
and where the oil went.”).
Further, this case is fundamentally the same as two cases addressed at the Circuit Court
level, Mejdrech v. Met-Coil Systems Corp., 319 F.3d 910 (7th Cir. 2003), and Sterling v. Velsicol

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Chemical Corp., 855 F.2d 1188 (6th Cir. 1988), in which the circuit courts upheld class
certification orders. In Mejdrech, a leaking storage tank on defendant’s property contaminated
soil and groundwater beneath the homes of plaintiffs, who were area residents. The Seventh
Circuit found that class certification was appropriate, since the questions of whether
contamination occurred and whether it reached plaintiffs’ properties were straightforward
questions common to class members, who were residents of the same State and were proceeding
under the same federal and state laws. Mejdrech, 319 F.3d at 911. Judge Posner found the case
for class certification so “reasonable, indeed right” that he did not even parse through the Rule
23 subdivisions. Id.
In Sterling, the Sixth Circuit Court of Appeals affirmed class certification. Residents
living near Velsicol’s chemical-waste burial site brought a class action for personal injuries and
property damage resulting from hazardous chemicals leaking from a landfill and contaminating
groundwater. The Court concluded that “where the defendant’s liability can be determined on a
class-wide basis because the cause of the disaster is a single course of conduct which is identical
for each of the plaintiffs,” then common issues predominate. Sterling, 855 F.2d at 1197. Here,
Plaintiffs will present common liability proof, such as PSC Hearing Transcripts from 1969,
evidence regarding the sufficiency of the KVTP and WVAW’s associated distribution and
treated water storage facilities, as well as the care with which WVAW operated those facilities
before the leak,7 internal Eastman documents about the hazards of Crude MCHM, and
government reports by public health officials. These issues and the evidence pertaining to them
are central and common to the Class claims. See In re Deepwater Horizon, 739 F.3d 790, 815

7

This evidence likely includes analysis of complex hydraulic modeling data as well as
analysis of hundreds or thousands of gigabytes of data from the Kanawha Valley system
recording tank levels and flow rates at various points throughout the system.
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(5th Cir. 2014) (class certification appropriate where “virtually every issue prior to damages is a
common issue”).
No matter how Plaintiffs were affected by their common “water loss” experience, their
common proof of Defendants’ liability will involve the same cast of characters, the same events,
and the same discovery, documents, data, fact witnesses, and experts. Deepwater Horizon, 295
F.R.D. at 141 (predominance “more easily satisfied in a single-event, single-location mass tort
action such as this”); LeClercq v. Lockformer Co., 2001 WL 199840 (N.D. Ill. Feb. 28, 2001)
(certifying class in groundwater contamination case alleging spills of TCE from defendant’s
rooftop tank; predominance satisfied where proof regarding history of operations, spillage and
impact on nearby land and water would be identical); Collins, 248 F.R.D. at 102 (“certification is
granted in a tort case where there is a demonstrated cohesiveness of the class due to shared
experience that is confined in time and place and produces similar effects”). Compare MTBE
Products Liability Litig., 209 F.R.D. 323 (S.D.N.Y. 2002) (where contamination occurred over
many years across four states indirectly caused by twenty defendants in conjunction with third
parties who released the contaminant into the environment, predominance could not be found).
In a case such as this, the necessity of individualized proof relating to different properties
affected by the spill does not mean that common issues will not predominate. Mejdrech, 319
F.3d at 912 (“The individual class members will still have to prove the fact and extent of their
individual injuries. The need for such proof will act as a backstop to the class-wide
determinations.”); Cook, 151 F.R.D. at 388-89 (common nucleus of operative facts, including
what caused toxic releases and what precautions were taken, predominated over issues requiring
individualized proof, such as the time when each plaintiff lived in the area). Recently, courts
have re-affirmed that the United States Supreme Court, in Comcast Corp. v. Behrend, 113 S.Ct.

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1426 (2013), did not foreclose class certification under Rule 23(b)(3) in cases involving
individualized damages calculations. See Roach v. T.L. Cannon Corp., 778 F.3d 401, 408 (2d
Cir. 2015). Moreover, that each potential class member has sustained a unique amount of
damages is not dispositive of the predominance question. Gunnells, 348 F.3d at 428. In Bates,
the court concluded that while individual proof of damages would become an inevitable
necessity, these individual questions were predominated by common issues, including the cause
of the contamination, defendants’ liability, and the effects of the jet fuel contamination on the
neighborhood. Bates, 132 F.R.D. at 163-64.
Here, proof of damages will not cause individual issues to predominate over common
questions, because the amounts of economic losses can be efficiently demonstrated. See e.g.
Olden v. LaFarge Corp., 383 F.3d 495 (6th Cir. 2004); Bentley, 223 F.R.D. at 487 (individual
aspects of plaintiffs’ damages “can be handled separately after a trial to determine whether
Defendants are liable”). Resident users’ damages, businesses’ damages, and wage earners’
damages are all subject to proof using aggregate damage methodologies followed by simple rote
calculation. Where individual damages can be determined objectively, by reference to a
mathematical calculation, the damages issue may be predominated by common issues. Steering
Committee v. Exxon Mobil Corp., 461 F.3d 598 (5th Cir. 2006); Young v. Nationwide Mut. Ins.
Co., 693 F.3d 532, 544 (6th Cir. 2012) (common question of causation was a “predominate issue
central to each of Plaintiffs’ claims and subject to generalized proof” notwithstanding need to
review each plaintiff’s account).
For class members who are residential water users, an aggregate damage model using
objective, published data on price elasticity of demand for water will show, based on each
household’s baseline or typical water consumption (derived from meter data), the economic

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value of the loss of potable tap water for that household. This valuation of the loss of the use of
tap water is based on economists’ notion of consumer “willingness to pay” to avoid a loss of
potable water. See Expert Declaration of Harvey S. Rosen, Ph. D. (“Rosen Report,” Exh.16), ¶
23. Willingness to pay takes into account the benefits of having a good or service, the availability
and cost of substitutes, as well as the inconvenience associated with going without the good or
service. Id., ¶ 24. It is analogous to an objective market value or the “fair market value” of a
good or service. Id.
The exact formula for valuing each individual class member’s (or household’s) economic
loss attributable to the loss of potable water is set forth in Dr. Rosen’s Report. See id., ¶ 23. The
formula takes into account each household’s baseline use (i.e., the quantity of tap water used per
day by the household under normal conditions), which in almost all cases will be able to be
determined from WVAW’s billing and meter readings records once class members provide their
dates of occupancy at the relevant residence on a simple claim form.8 The formula also takes into
consideration the actual price paid by residential customers for tap water under the WVAW tariff
in effect at the time of the Spill. Further, the formula accounts for the amount of water that was
made available in response to the Spill, at no charge, by government agencies, on a per capita
basis, and uses that quantity as an estimate of the amount of potable water available under the
conditions of the DNU order.9

8

While WVAW’s meter readings for all or almost all addresses serviced by WVAW
have been made available to the Plaintiffs in discovery, those readings are identified by service
address only, so it is not possible at this stage to identify when changes in occupancy at that
address (or periods of vacancy) may have occurred for purposes of matching meter readings to
actual households.
9

In order to make an estimate of the amount of water available at no charge to each
household, it is necessary to first know the number of persons residing in that household, a
number that can easily be determined from responses provided on a simple claim form.
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The final input into the formula is the average consumer price elasticity of demand,
which is derived from published studies. See id., ¶ 23. While consumer “willingness to pay”
determined by the published, statistical average price elasticity of demand may be imperfect as a
measure of actual, subjective “economic value” to a consumer—because individual consumers
will have different subjective valuations of tap water, just like any other good or service—the use
of this objective valuation input based on each person’s peculiar circumstances is consistent with
West Virginia law on damages for loss of the use of property. See Kirk v. Pineville Mobile
Homes, 310 S.E.2d 210, 212–13, 172 W. Va. 693, 695 (1983) (damages for annoyance and
inconvenience arising from the loss of use of property must be “measured by an objective
standard”).
Because certain per household or per individual inputs such as dates of occupancy and
number of persons in household at the time of the Spill will not be available until class members
submit information in a simple claim form, Plaintiffs have offered for informational purposes an
aggregate estimate of the total residential economic loss to all class members based on the
experience of the “average” individual, derived by taking estimates of the total typical or
“baseline” residential consumption of tap water among the KVTP customers divided by the
number of residents. However, the actual per household damages number for lost value of tap
water during the DNU period will be derived for each household based on that household’s
actual baseline water consumption and number of residents, once the necessary information is
provided in a simple claim form. See id., ¶ 25. For Plaintiffs and class members who are
businesses, an aggregate damage model will provide a measurement of the reduction in gross
regional product, or “value added,” output during the DNU period, using the data that businesses
report to the government, adjusting for variable costs avoided as the result of not being open for

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business. The aggregate model, as described by Dr. Rosen, see Rosen Report, ¶¶ 14–17, uses
standard, published “resiliency” factors to account for the loss of contributions to value added
from different sectors from the loss of potable water during the DNU period. So, for example, if
published data shows that an industry sector has a resiliency factor of 0.8, the model estimates
that the sector lost 20% of its total output, or contribution to value added, during the DNU
period. It is important to note that Dr. Rosen’s aggregate estimate on the business side (as
opposed to residential) is actually an aggregate estimate of the combined losses for both business
owners and wage workers who were not able to work. The methodology does not permit
unpacking the two kinds of losses, losses in profits by businesses and losses in wages by wage
earners, at the aggregate level. This unpacking will have to occur at the claims administration
and processing phase, based on routine business record documentation submitted by individual
businesses and wage earners.
The individual damages to be paid to businesses and wage earners as a result of the DNU
period will be determined at the claims processing stage based on standard accounting, sales and
luxury tax data (where available), and payroll documentation submitted by the individual
claimants. Rosen Report, ¶¶ 20–21. While the determination of individual damages to businesses
and wage earners from loss of water during the DNU period will require an individualized
inquiry, it is important to note that the inquiry will consist solely in applying a simple,
mechanical formula—for businesses, the formula is basically change in revenues10 minus change
in expenses11—and confirming the existence of standard documentation supporting these
10

Change in revenues, in turn, is equal to anticipated or expected revenues based on
recent, comparable periods (such as prior January revenues) minus actual revenues during the
DNU period.
11

Change in expenses reflects the costs associated with operating normally and making
the normal sales that the business was able to avoid by not operating normally or by making
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mechanical calculations. See id., ¶ 20. Individual damages to be paid to hourly workers are also
based on a simple, mechanical formula—anticipated wages plus benefits minus actual wages
plus benefits during the DNU period—and would be derived from payroll records reflecting
hours and wages for comparable periods (such as the prior week, and, where applicable,
comparable periods in the prior year) and actual wages during the DNU period. See id., ¶ 21.
This simple, mechanical claims administration process would be streamlined and facilitated by a
jury finding that the Defendants are liable for the estimated total of all claims as determined by
the aggregate models described in the preceding paragraphs, but it is not absolutely dependent
upon it. In other words, the business and hourly wage worker classes could still be determined by
a simple, mechanical process after the main class trial even if the class trial does not include the
aggregate estimates for these groups.
2.

A Class Action is the Superior Means of Resolving the Dispute.
The superiority requirement ensures that a class action “is superior to other available

methods for the fair and efficient adjudication of the controversy.” Fed. R. Civ. P. 23(b)(3). A
superiority finding ensures that a class action will “achieve economies of time, effort and
expense, and promote uniformity of decision as to persons similarly situated, without sacrificing
procedural fairness or bringing about other undesirable results.” Amchem, 521 U.S. at 615.
Class certification will achieve economies for both the litigants and the Court. As the
Court has recognized in its Order dated June 3, 2015 [Dkt. 378], “it is incumbent upon the water
company defendants under the allegedly extreme circumstances in this action to prove an
affirmative defense of impracticability.” Id. at 24. Without a class action, the water company
Defendants would be burdened with repetitive showings of proving its defense in thousands of
fewer sales. The costs of inputs for goods produced and hourly labor costs would be the main
drivers.
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individual cases with potentially inconsistent verdicts. Only a class action can bind all the class
members to a finding of liability or to the relative degrees of fault of the defendants in causing
the Spill and its aftermath.
A class action “significantly reduces the overall cost of complex litigation, allowing
plaintiffs’ attorneys to pool their resources and requiring defendants to litigate all potential
claims at once, thereby leveling the playing field between the two sides.” In re Serzone Products
Liab. Litig., 231 F.R.D. 221, 240 (S.D. W. Va. 2005), citing In re Agent Orange Product Liab.
Litig., 597 F. Supp.2d 740, 842 (E.D.N.Y. 1984), aff’d, 818 F.2d 145 (2d Cir. 1987). Here a class
action is superior to prosecution of these claims on a claim-by-claim basis because all actions
arise out of the same circumstances and course of conduct, and the claims are not economically
feasible to prosecute alone. The claims here, like in Deepwater Horizon, are “negative value
claims,” that is, claims that “provide the most compelling rationale for finding superiority in a
class action.” Deepwater Horizon, 295 F.R.D. at 144; see also Phillips Petroleum Co. v. Shutts,
472 U.S. 797, 809 (1985) (class actions permit plaintiffs to pool claims which would be
uneconomical to litigate); Castano v. American Tobacco Co., 84 F.3d 734, 748 (5th Cir. 1996)
(negative value suit the “most compelling rationale for finding superiority in a class action”). A
class action can determine, with judicial economy, the rights of each member of the Class. Leach
v. E.I. du Pont de Nemours & Co., 2002 WL 1270121 (Cir. Ct. W. Va. Apr. 10, 2002) (allowing
common tort claims in water contamination case to proceed as a class “far superior” to requiring
individual litigation).
In Sterling, supra, another water contamination action, each class member lived in the
vicinity of the landfill defendant used to discard pesticide production byproducts, and each
alleged to have suffered damages as the result of the same contaminated water. The Sixth Circuit

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concluded that “almost identical evidence” would be required to establish a causal connection
between the Defendants’ wrongdoing and the injuries allegedly suffered. Sterling, 855 F.2d at
1198. Thus, a class action “avoided duplication of judicial effort” and prevented separate actions
regarding the water contamination from reaching inconsistent results. Id. Similarly, in Collins,
the court found that the case alleging damages due to contamination of groundwater as the result
of defendant’s disposal of industrial wastes in town dumps, was manageable as a class action
“because all of the class members reside in one neighborhood within Connecticut, and the entire
alleged course of action by the defendant took place in Connecticut as well,” and all plaintiffs
proceeded under the same federal and state laws. Collins, 248 F.R.D. at 106.
Here, similarly, though the class is numerous, “its members can be identified relatively
easily through public records for the purpose of notice to the class members.” Bates, 132 F.R.D.
at 164. Over 95% of the Class Members (all except those who have moved recently) can be
identified and notified through WVAW’s billing process. Here, certification of a class is a
superior method to resolve the case because it will give all Class Members a “single forum to
pursue their cause of action and will require the defendants to present their defenses only one
time.” Id.
Class action treatment by this Court is also superior to class or mass action treatment in
another forum or venue because of the inclusion of all of the major, non-bankrupt potential
defendants in the instant action. For reasons related to the complicated rules governing
jurisdiction between state and federal courts, it may not be possible or practical for Plaintiffs to
prosecute claims against the major out-of-state defendants—i.e., Eastman, American Water and
Service —utilizing the State of West Virginia’s special procedures and courts for handling mass
actions, even assuming those would be available otherwise. If this Court declines class
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certification and it is not feasible to bring all defendants into a class action or mass action in
West Virginia’s courts using its special procedures, then the alternatives would be uncertain, and
most likely involve an unsatisfactory hodge-podge wherein the West Virginia defendants would
become the sole targets of many cases for reasons of procedural convenience and other cases
involving all defendants would have to be dealt with in some other fashion either in state court or
by this Court. Thus, class action treatment by this Court along the lines outlined in the instant
motion—at the least, class action treatment of the liability issues under Rule 23(c)(4)—is clearly
superior to the likely alternatives, or to no access to justice at all.
WHEREFORE, based upon the foregoing, Plaintiffs respectfully request that the Court
grant their Motion for Class Certification and enter an Order effectuating the decision, along
with any other relief deemed necessary or proper.
Dated: July 6, 2015

Respectfully Submitted:
By Counsel,
s/Kevin W. Thompson
Kevin W. Thompson, Esquire (WVSB# 5062)
David R. Barney, Jr., Esquire (WVSB# 7958)
Thompson Barney
2030 Kanawha Boulevard, East
Charleston, West Virginia 25311
Telephone: (304) 343-4401
Facsimile: (304) 343-4405
kwthompsonwv@gmail.com
drbarneywv@gmail.com
Van Bunch, Esquire (WVSB# 10608)
Bonnett Fairbourn Friedman & Balint PC
2325 E. Camelback Road, Suite 300
Phoenix, Arizona 85016
Telephone: (602) 274-1100
Facsimile: (602) 274-1199
vbunch@bffb.com
Stuart Calwell, Esquire (WVSB# 0595)
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 Case 2:14-cv-01374 Document 414-21 Filed 07/06/15 Page 33 of 35 PageID #: 5598

Alex McLaughlin, Esquire (WVSB# 9696)
D. Christopher Hedges, Esquire (WVSB# 7894)
THE CALWELL PRACTICE, LC
Law and Arts Center West
500 Randolph Street
Charleston, West Virginia 25302
Telephone: (304) 343-4323
Facsimile: (304) 344-3684 (facsimile)
scalwell@calwelllaw.com
amclaughlin@calwelllaw.com
chedges@calwelllaw.com
Interim Class Counsel for Plaintiffs and the Class
Mark F. Underwood, Esquire (WVSB# 7023)
UNDERWOOD LAW OFFICE
923 Third Avenue
Huntington, West Virginia 25701
Telephone: 304-522-0508
Facsimile: 304-399-5449
markunderwood@underwoodlawoffice.com

P. Rodney Jackson, Esquire (WVSB# 1861)
Law Offices of Rod Jackson
401 Fifth-Third Center
700 Virginia Street, East
Charleston, West Virginia 25301
Telephone: (843) 780-6879
Facsimile: (304) 345-7258
prodjackson27@yahoo.com
Stephen H. Wussow, Esquire (visiting attorney)
Michael G. Stag, Esquire (visiting attorney)
Stuart H. Smith, Esquire (visiting attorney)
Sean S. Cassidy, Esquire (visiting attorney)
Smith Stag, LLC
One Canal Place
365 Canal Street, Suite 2850
New Orleans, Louisiana 70130
Telephone: (504) 593-9600
Facsimile: (504) 593-9601
swussow@smithstag.com
mstag@smithstag.com
ssmith@smithstag.com
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 Case 2:14-cv-01374 Document 414-21 Filed 07/06/15 Page 34 of 35 PageID #: 5599

scassidy@smithstag.com
Michael J. Del Giudice, Esquire (WVSB# 0982)
Timothy J. LaFon, Esquire (WVSB# 2123)
Cicacarello, Del Giudice and LaFon
1219 Virginia Street, East, Suite 100
Charleston, West Virginia 25301
Telephone: (304) 343-4400
Facsimile: (304) 343-4464
mikedel@cdlwv.com
Counsel for Plaintiffs

34

 Case 2:14-cv-01374 Document 414-21 Filed 07/06/15 Page 35 of 35 PageID #: 5600

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT WEST VIRGINIA
CRYSTAL GOOD, individually and as
parent and next friend and parent of T.A.J.,
West Virginia residents, et al.
on behalf of themselves and all others
similarly situated,

Case No.: 2:14-CV-01374
Consolidated with:
Case No. 2:14-11011
Case No. 2:14-13164
Case No. 2:14-13454

Plaintiffs,
v.
AMERICAN WATER WORKS
COMPANY, INC.,
a Delaware corporation, et al.

CONSOLIDATED CLASS
ACTION

Defendants.

CERTIFICATE OF SERVICE
The undersigned counsel for Plaintiffs hereby certifies that on July 6, 2015, the foregoing
“Plaintiffs’ Memorandum of law in support of Motion for Class Certification” was filed
electronically with the Clerk of the Court through the CM/ECF system, which will send
notification of the filing to all counsel of record.
Plaintiffs, By Counsel,
s/ Kevin W. Thompson

35