United States District Court, N.D. Illinois
October 12, 2004.
The opinion of the court was delivered by: JAMES ZAGEL, District Judge
On October 7, 2004, Pilkington filed a motion to decertify the
class in this case. For the reasons discussed in our last status
hearing, I am treating this as a motion to reconsider my earlier
order of November 4, 2003 granting class certification.
Pilkington now claims that facts, related to direct soil
contamination, uncovered during discovery, make class
certification, on the issue of Pilkington's improper dumping of
contaminated soil, inappropriate. In its motion, Pilkington
carefully limits its discussion to the direct dumping of soil on
properties in and around the Village of Naplate. Pilkington
points out that testimony elicited through interrogatories and
depositions tends to show that Pilkington's dumping of allegedly
contaminated soil was limited to discrete areas and was not as
widespread as Plaintiffs originally claimed.
Pilkington argues that the discrete nature of the alleged
dumping destroys the commonality and typicality required by
Fed.R. Civ. P. 23(a) as well as the predominance required by
Fed.R.Civ. P. 23(b)(3). The dumping of contaminated soil, however, is
just one part of the Plaintiffs' claims of contamination, which
include allegation of arsenic emanating from the Ottawa plant
through other methods of dispersion and migration.
The core issue of this case, as pointed out in my November 4th
opinion, is still whether Pilkington's handling of arsenic
containing waste, of multiple types, caused contamination in
Naplate. The differing factual issues pointed out by Pilkington,
on the subject of contaminated soil dumping, are relatively minor
and as such do not destroy commonality, typicality, or
predominance. See Rosario v. Livaditis, 963 F.2d 1013, 1018
(7th Cir. 1992); De La Fuente v. Stokely-Van Camp, Inc.,
713 F.2d 225, 232 (7th Cir. 1983); LeClercq v. Lockformer Co., 2001
U.S. Dist. LEXIS 2115 at *19 (N.D. Ill. Feb. 23, 2001); Mejdreck
v. Lockformer Co., 2002 U.S. Dist. LEXIS 14785 at *18-20 (N.D.
Ill. Aug. 9, 2002). Moreover, factual determinations, such as
whether, based on all the evidence presented, Pilkington engaged
in widespread dumping of contaminated soil, are most properly
determined at trial by a jury, not in a motion for
reconsideration of class certification. For these reasons, I
stand by my November 4th opinion granting class certification.
The motion to decertify is denied.
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