Did the circuit court properly certify a class of people living in close proximity to a warehouse fire who may have suffered property damage and/or physical injury as a result of smoke and airborne particulates from the fire?
This case has its origins in a warehouse fire in Parkersburg, West Virginia. The fire burned for days, spewing smoke and particulates over a densely populated area. Respondent, Paul Snider, sued Respondent, Surnaik, the company that owned the warehouse, seeking damages on an individual and a classwide basis.
Respondent’s experts established a class boundary using data and scientific models to track the flow of particulates from the fire. According to these experts, 3 µg/m³ of PM2.5 (a measure of airborne particulates) represents “a tangible and actionable injury to property” and a level of exposure at which an increased risk of physical injury can occur. The personal injury resulting from exposure can be severe, including death, asthma and heart attack, but only in a small percentage of the population. Most, if not all, of those exposed will experience some level of physical discomfort. In all, there are over 50,000 people living within the class boundary. The circuit court certified the class. Petitioner seeks review of the court’s certification order via prohibition.
Petitioner makes a five-part argument, but devotes most of its time to the first two parts. First, Petitioner argues that certification is improper because “only 10% of the class is likely to have been injured.” Specifically, Petitioner cites testimony from Respondent’s experts indicating that as few as 10% of those living within the class boundary will develop a specific, diagnosable physical injury. Furthermore, Petitioner argues that mass torts alleging physical injuries are not well-suited for class disposition under Rule 23 because there are individualized issues involving exposure, injury, and proximate cause.
Respondent accuses Petitioner of mischaracterizing the case. Respondent argues that settled law in West Virginia and elsewhere stands for the proposition that having smoke, fumes and particulates entering into a dwelling and interfering with its comfort, use and enjoyment is, in and of itself, an actionable tort. The fact that these invasions and damages may be small “makes class certification more appropriate, not less.” Furthermore, “the great weight of authority” favors “classwide treatment and resolution in single accident cases, particularly of property-based claims.”
In the last few years our Supreme Court has taken a closer look at class action practice. Just last year the Court issued an opinion in State ex rel. West Virginia University Hospitals, Inc. v. Gaujot, 242 W.Va. 54, 829 S.E.2d 54 (2019) that tightened the standards for certifying a class under Rule 23. Class actions are an essential part of civil practice. In many cases, class actions are the only legal vehicle capable of providing relief where there is relatively small, but widespread harm. Cases like this one show the value of class actions, especially in West Virginia. The reality is that it would not be economically feasible for any single homeowner to sue for the damages caused by this fire. How, then, can we protect West Virginians from corporate irresponsibility—whether it be from fire, or airborne emissions, or poisonous chemicals released into our waterways? The answer is to insure that our class action remedy remains strong and capable of delivering full justice. Hopefully, the Court here will protect the health, safety and welfare of West Virginians by protecting their class action remedy.