in the circuit court for the state of ... - portland, oregon

i – BULLSEYE’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION

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5285 Meadows Rd. Suite 330 Lake Oswego, OR 97035

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IN THE CIRCUIT COURT FOR THE STATE OF OREGON

FOR THE COUNTY OF MULTNOMAH

SCOTT MEEKER and ERIN MEEKER, KELLY GOODWIN, BRUCE ELY and KRISTI HAUKE, ELIZABETH BORTE and RINO PASINI, CHRISTIAN MINER, JUDY SANSERI and HOWARD BANICH; individually and on behalf of all others similarly situated,

Plaintiffs,

v.

BULLSEYE GLASS CO., an Oregon corporation,

Defendant.

Case No. 16-CV-07002

BULLSEYE’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION

Assigned Judge: Hon. Stephen K. Bushong

ii – BULLSEYE’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION

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TABLE OF AUTHORITIES

CASES

Abrams v. Nucor Steel Marion, Inc.,

694 Fed Appx 974 (6th Cir 2017) ............................................................................................................ 54

Abundiz v. Explorer Pipeline Co.,

2003 WL 23096018 (ND Tex Nov 25, 2003) .......................................................................................... 54

Alaska Elec. Pension Fund v. Flowserve Corp.,

572 F3d 221 (5th Cir 2009) ..................................................................................................................... 35

Allgood v. Gen. Motors Corp.,

No. 102CV1007DFHJTAB, 2006 WL 2669337 (SD Ind Sept 18, 2006) ............................................... 70

Alsea Veneer, Inc. v. State,

117 Or App 42 (1992).............................................................................................................................. 44

Am. Honda Motor Co. v. Allen,

600 F.3d 813 (7th Cir. 2010) ................................................................................................................... 36

Amchem Prods., Inc. v. Windsor,

521 US 591 (1997)................................................................................................................................... 50

Amphitheaters, Inc. v. Portland Meadows,

184 Or 336, 198 P2d 847 (1948) ............................................................................................................. 53

Anderson Living Tr. v. WPX Energy Prod., LLC,

306 FRD 312 (D NM 2015)..................................................................................................................... 35

Bentley v. Honeywell Int’l, Inc.,

223 FRD 471 (SD Ohio 2004) ................................................................................................................. 48

Bernard v. First Nat. Bank of Oregon,

275 Or 145, 550 P2d 1203 (1976) ......................................................................................... 35, 50, 63, 64

Bloomfield v. Weakland,

339 Or 504, 123 P3d 275 (2005) ....................................................................................................... 45, 59

iii – BULLSEYE’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION

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Boggs v. Divested Atomic Corp.,

141 FRD 58 (SD Ohio 1991) ................................................................................................................... 38

Boughton v. Cotter Corp.,

65 F3d 823 (10th Cir 1995) ..................................................................................................................... 58

Bradley v. Am. Smelting & Ref. Co.,

635 F Supp. 1154 (WD Wash 1986)........................................................................................................ 54

Bremner v. Charles,

312 Or 274, 821 P2d 1080 (1991) ..................................................................................................... 81, 82

Brockman v. Barton Brands, Ltd.,

No. 3:06CV-332-H, 2007 WL 4162920 (WD Ky Nov. 21, 2007) .......................................................... 37

Burkhead v. Louisville Gas & Elec. Co.,

250 FRD 287 (2008) ................................................................................................................................ 45

Cannon v. BP Products N. Am., No.,

CV00622, 2013 WL 5514284 (SD Tex Sept 30, 2013) .................................................................... passim

Cantrell v. Ashland, Inc.,

Nos. 2003CA001784, 2006 WL 2632567 (Ky Ct App Sept 15, 2006) ................................................... 69

Carson Harbor Village, Ltd. V. Unocal Corp.,

287 F Supp2d 1118 (CD Cal 2003) ......................................................................................................... 68

Carter v. Monsanto Co.,

575 SE 2d 342 (W Va 2002) .................................................................................................................... 69

Cereghino v. Boeing Co.,

873 F Supp 398 (D Or 1994) ................................................................................................................... 51

Church v. General Elec. Co.,

138 F Supp2d 169 (D Mass 2001) ........................................................................................................... 52

Comcast Corp. v. Behrend,

569 US 27 (2013) .................................................................................................................................... 37

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Coopers & Lybrand v. Livesay,

437 US 463 (1978)................................................................................................................................... 36

Dale v. Sitel Corp.,

No. 0502-01375, 2007 WL 2154767 (Mult Co Cir Ct June 1, 2007) ................................................ 63, 64

Deiter v. Microsoft Corp.,

436 F3d 461 (4th Cir 2006) ..................................................................................................................... 42

Duffin v. Exelon Corp., No. CIV A 06 C,

1382, 2007 WL 845336, (ND Ill Mar 19, 2007) .......................................................................... 37, 40, 52

Dugan v. Ashley Furniture Indus., Inc.,

2016 WL 9173459 (CD Cal Nov. 29, 2016) ............................................................................................ 35

Ebert v. General Mills, Inc.,

823 F3d 472 (8th Cir 2016) ..................................................................................................................... 58

Fisher v. Ciba Specialty Chemicals Corp.,

238 FRD 273 (SD Ala 2006) ................................................................................................................... 62

Froeber v. Liberty Mut. Ins. Co.,

222 Or App 266, 277 ............................................................................................................................... 58

Gates v. Rohm and Haas Co.,

655 F.3d 255 (2011) ................................................................................................................................ 60

Gen. Telephone Co. v. Falcon,

457 US 147 (1982)................................................................................................................................... 36

George v. R. Good Logistics, L.L.C.,

CA2012-06-008, 2013 WL 58115 (Ohio Ct App Jan 7, 2013) ............................................................... 40

Georgia-Pac. Consumer Products LP v. Ratner,

2014 WL 3396519 (Ga 2014) .................................................................................................................. 41

Halliday v. Norton Co.,

696 NYS 2d 549 (App Div 1999) ............................................................................................................ 69

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Henke v. Arco Midcon, L.L.C.,

No. 4:10CV86 HEA, 2014 WL 982777 (ED Mo Mar 12, 2014) ..................................................... passim

Henry v. Dow Chem. Co.,

473 Mich 63, 701 NW2d 684 (2005) ....................................................................................................... 55

Henry v. Dow Chemical Co.,

2011 WL 3269118 (Mich Cir Ct, July 18, 2011) ..................................................................................... 53

Henry v. St. Croix Alumina, LLC,

No. 1999-0036, 2008 WL 2329223 (DC VI June 3, 2008) ..................................................................... 74

Hickey v. Settlemier,

318 Or 196, 864 P2d 372 (1993) ............................................................................................................. 43

Hoaglin v. Decker,

77 Or App 472, 713 P2d 674 (1986) ....................................................................................................... 51

Horta v. Sullivan,

4 F3d 2 (1st Cir 1993) ........................................................................................................................ 43, 44

Hudson v. Peavey Oil Company,

279 Or. 3 (1977) .......................................................................................................................... 70, 73, 74

In re Burbank Envtl. Litig.,

42 F Supp2d 976 (1998) .......................................................................................................................... 70

In re Hydrogen Peroxide Antitrust Litig.,

552 F3d 305 (3d Cir 2008) .......................................................................................................... 35, 39, 51

In re MTBE Prods. Litig.,

209 FRD 323 (SDNY 2002) .............................................................................................................. 39, 59

In re Teflon Prods. Liability Litig.,

254 FRD 354 (SD Iowa 2008) ................................................................................................................. 45

Jacobson v. Crown Zellerbach Corp.,

273 Or 15, 539 P2d 641 (1975) ............................................................................................................... 52

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Jewett v. Deerhorn Enterprises, Inc.,

281 Or 469, 575 P2d 164 (1978) ............................................................................................................. 51

LaBauve v. Olin Corp.,

231 FRD 632 (SD Ala 2005) ............................................................................................................. 38, 81

Lee-Bolton v. Koppers, Inc.,

319 FRD 346 (ND Fla 2017) ................................................................................................. 67, 74, 80, 81

Leib v. Rex Energy Operating Corp.,

No. 06-cv-802-JPG-CJP, 2008 WL 5377792 (SD Ill Dec 19, 2008) ...................................................... 60

Lindsay v. Normet,

405 US 56 (1972) .................................................................................................................................... 64

Lipinski v. Beazer E., Inc.,

76 Pa D & C4th 479 (Com Pl 2005) ........................................................................................................ 57

Lowe v. Phillip Morris, Inc.,

344 Or 403, 183 P3d 181 (2008) ................................................................................................. 46, 55, 59

Marcum v. Adventist Health Sys.,

W., 345 Or 237, 193 P3d 1 (2008) ......................................................................................... 15, 16, 17, 20

Martin v. Reynolds Metals Co.,

221 Or 86, 342 P 2d 790 (1959) ........................................................................................................ 51, 54

Martin v. Shell Oil Co.,

198 F.R.D. 580 (D Conn 2000) ............................................................................................................... 52

Mays v. Tennessee Valley Auth.,

274 F.R.D. 614 (ED Tenn 2011) ............................................................................................................. 45

McCormick v. City of Portland,

191 Or App 383, 82 P2d (2004) ............................................................................................................. 70

Mehlenbacher v. Akzo Nobel Salt, Inc.,

71 F Supp2d 179 (WD NY 1999) ............................................................................................................ 69

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Millett v. Atlantic Richfield Co.,

No. 98 Civ. 555, 2000 WL 359979 (Me Super Mar 2, 2000) ................................................ 45, 47, 48, 49

Newman v. Tualatin Development Co., Inc.,

287 Or 47, 597 P2d 800 (1979) ............................................................................................................... 40

Ogden v. Star Enter.,

70 F 3d 1262, 1995 WL 709862 (4th Cir 1995) ...................................................................................... 69

Opperman v. Allstate New Jersey Ins. Co.,

CIV. 07-1887, 2009 WL 3818063 (DNJ Nov 13, 2009) ......................................................................... 42

Parko v. Shell Oil Co.,

739 F3d 1083 ........................................................................................................................................... 61

Pearson v. Phillip Morris, Inc.,

358 Or 88, 361 P3d 3 (2015) ............................................................................................................ passim

Peterson v. Temple,

323 Or 322, 918 P2d 413 (1996) ............................................................................................................. 47

Pinares v. United Tech. Corp.,

2012 WL 12854871 (SD Fla 2012) ......................................................................................................... 68

Ramirez v. Akzo Nobel Coatings, Inc.,

153 Ohio App 3d 115 .............................................................................................................................. 69

Ream v. Keen,

838 P2d 1073, 314 Or 370 (1992) ........................................................................................................... 51

Safeway v. Or Public Employees Union,

152 Or App 349, 954 P2d 196 (1998) ..................................................................................................... 39

Sher v. Raytheon Co.,

419 Fed Appx 887 (11th Cir 2011) .................................................................................................... 66, 81

Smith v. ConocoPhillips Pipe Line Co.,

801 F3d 921 (8th Cir 2015) ..................................................................................................................... 41

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State v. Brown,

297 Or 404, 687 P2d 751 (1984) ................................................................................................. 15, 16, 17

Steering Comm. v. Exxon Mobil Corp.,

461 F3d 598 (5th Cir 2006) ......................................................................................................... 57, 74, 81

Tate v. North Pacific College,

70 Or 160, 140 P 743 (1914) ................................................................................................................... 43

Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc.,

546 F3d 196 (2d Cir 2008) ...................................................................................................................... 35

The St. Joe Co. v. Leslie,

912 So 2d 21 (Fla Dist Ct App 2005) ................................................................................................ 66, 68

Thomas v. FAG Bearings Corp. Inc.,

846 F Supp 1400 (WD Mo 1994) ............................................................................................................ 52

Thompson v. Am. Tobacco Co.,

189 FRD 544 (D Minn 1999) .................................................................................................................. 47

Wal-Mart Stores, Inc. v. Dukes,

564 US 338 (2011)............................................................................................................................. 41, 58

Walton v. Franklin Collection Agency, Inc.,

190 FRD 404 (ND Miss 2000) ................................................................................................................ 60

Waste Mgmt. Holdings, Inc. v. Mowbray,

208 F3d 288 (1st Cir 2000) ...................................................................................................................... 36

Wehner v. Syntex Corp.,

117 FRD 641 (ND Cal 1987) ................................................................................................................... 39

Williams v. Invenergy, LLC,

No. 3:13-CV-01391-AC, 2014 WL 7186854 (D Or Dec 16, 2014) ........................................................ 54

Zinser v. Accufix Research Inst., Inc.,

253 F3d 1180 (9th Cir 2001) ................................................................................................................... 61

ix – BULLSEYE’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION

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RULES

ORCP 32 A .......................................................................................................................................... passim

ORCP 32 B ......................................................................................................................................... passim

FRCP 23 ................................................................................................................................................ 46, 47

FRCP 23(b)(2) ............................................................................................................................................ 69

Other Authorities

1 Newberg on Class Actions § 3:26 ............................................................................................................ 53

2 Newberg on Class Actions § 4:69 ............................................................................................................ 72

Class Certification in the Age of Aggregate Proof,

84 NYU L Rev 97 (2009) ........................................................................................................................ 52

x – BULLSEYE’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION

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TABLE OF CONTENTS

I. INTRODUCTION................................................................................................................... 1

II. SUMMARY OF ARGUMENT .............................................................................................. 3

III. FACTUAL BACKGROUND ................................................................................................. 6

A. PLAINTIFFS HAVE FAILED TO ESTABLISH THAT BULLSEYE’S EMISSIONS DAMAGED

THEIR PROPERTY INTERESTS. ........................................................................................... 7

1. Plaintiffs’ “expert” erroneously relies on the wrong lab test and thus his conclusion is false. ............................................................................................................................................................. 8

2. The material tested by Plaintiff was not representative of Bullseye’s emissions. ................ 11

3. The samples gathered by Plaintiffs’ expert do not even represent the contents of each barrel. ......................................................................................................................................................... 13

4. Plaintiffs’ have not established that any metals from Bullseye actually landed on anyone’s property. .................................................................................................................................. 15

5. Plaintiffs have not established any health risk from Bullseye’s emissions. ......................... 16

6. Summary ................................................................................................................................................... 17

B. UNREBUTTED SOIL TESTS SHOW NO INJURY TO PROPERTY INTERESTS TRACEABLE TO

BULLSEYE, AND ESTABLISH THAT EACH PROPERTY MUST BE EVALUATED

SEPARATELY, NOT ON A CLASSWIDE BASIS. ................................................................... 17

1. DEQ soil tests and risk analyses show no contamination or harm. ......................................... 18

2. Bullseye’s expert validates DEQ’s findings and conclusions. .................................................. 21

C. CLASS CERTIFICATION IS IMPROPER BECAUSE PLAINTIFFS PROVIDE NO EVIDENCE OF

HARM. ............................................................................................................................... 27

1. Plaintiffs conducted soil sampling on their properties, but refuse to testify about the results which they have withheld as work product – for obvious reasons. ............................ 27

2. Despite pleading about the dangers of arsenic, cadmium and chromium, Plaintiffs present no evidence of any injury, and their non-privileged blood tests demonstrate no injury. ... 28

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D. MEMBERS OF THE PROPOSED CLASS HAVE SUFFERED NEITHER HARM NOR

INTERFERENCE WITH THE USE AND ENJOYMENT OF THEIR PROPERTIES. .................... 30

E. THERE IS NO EVIDENCE OF STIGMA DAMAGES OR DIMINUTION IN PROPERTY VALUES

IN THE PROPOSED CLASS AREA. ...................................................................................... 33

IV. LEGAL ARGUMENT .......................................................................................................... 35

A. CLASS CERTIFICATION STANDARD .................................................................................. 35

B. PLAINTIFFS’ PROPOSED “AFFECTED AREA” FAILS FOR LACK OF PROOF OF

CONTAMINATION. ............................................................................................................. 37

C. PLAINTIFFS FAIL TO SATISFY THE REQUIREMENTS OF ORCP 32 A. ............................. 39

1. Plaintiffs fail to establish “numerosity” because they fail to meet their burden to prove that they or putative class members were actually harmed. ....................................................... 40

2. Commonality is not satisfied because the most central questions in the case cannot be litigated based on representative evidence. ..................................................................................... 41

3. Plaintiffs are not typical of the persons they seek to represent. ................................................ 42

4. Plaintiffs are not “adequate” class representatives because they are splitting claims. ....... 44

D. CLASS LITIGATION IS NOT SUPERIOR TO TRADITIONAL LITIGATION IN THIS CASE. ... 50

1. Class litigation is not superior because liability in this case can only be determined on property-by-property and person-by-person. .................................................................................. 50

2. The injunctions Plaintiffs seek will not provide relief to the class as a whole. .................... 58

3. The interest of members of the class in individually controlling the prosecution or defense of separate actions. ................................................................................................................. 60

4. The difficulties of managing this litigation as a class action outweigh any potential benefits from class treatment. ............................................................................................................. 61

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E. CLASS CERTIFICATION IS IMPROPER BECAUSE PLAINTIFFS’ OFFER NO EVIDENCE OF

ECONOMIC LOSS AND CANNOT ESTABLISH THAT COMMON QUESTIONS OF ALLEGED

DIMINUTION IN PROPERTY VALUE PREDOMINATE OVER QUESTIONS AFFECTING

INDIVIDUAL MEMBERS. .................................................................................................... 65

1. Stigma damages are not available because plaintiffs have offered no evidence of actual injury to property. ................................................................................................................................... 67

2. Stigma damages are not recoverable because plaintiffs allege a continuing trespass and nuisance. .................................................................................................................................................... 69

3. Kilpatrick’s contingent valuation survey is unreliable and standing alone is not evidence of diminution in property value. ......................................................................................................... 71

4. Because of the extreme physical, locational and economic diversity of properties, individual factors predominate over common and preclude certification. ............................. 73

F. NOTICE ............................................................................................................................. 81

G. THE COURT SHOULD REJECT PLAINTIFFS’ SUGGESTED TRIFURCATED TRIAL PLAN. . 81

V. CONCLUSION ..................................................................................................................... 83


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I. INTRODUCTION

This case is and always has been based on bad science and the fears of a misinformed

public. Plaintiffs relied on press accounts and cartoonish drawings in the Oregonian to mount a

billion-dollar class-action suit, and have maintained that suit even after their cartoons were

discredited. The whole premise of their suit—that Bullseye had contaminated surrounding

properties—was retracted within a week of the filing of this case. On March 9, 2016 the Oregon

Health Authority (OHA) announced:1

Now, nearly two years later, Plaintiffs offer more bad science. They base their entire case

on an estimation of metal content in Bullseye’s air emissions that is simply wrong. Plaintiffs so-

called expert based his estimate on a test of miscellaneous waste collected from around the

1HEALTHY SOILS: Urban Gardening and Air Toxics in Southwest Portland, Oregon, avail. at

http://www.oregon.gov/oha/ph/HealthyEnvironments/HealthyNeighborhoods/HealthyGardening/Documents/healthy-soils-supplement-se-portland.pdf.

http://www.oregon.gov/oha/ph/HealthyEnvironments/HealthyNeighborhoods/HealthyGardening/Documents/healthy-soils-supplement-se-portland.pdf

http://www.oregon.gov/oha/ph/HealthyEnvironments/HealthyNeighborhoods/HealthyGardening/Documents/healthy-soils-supplement-se-portland.pdf


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Bullseye facility, and erroneously claims that it was a test of material captured from Bullseye’s

emissions. (section II(A)(1), below.) This is not true; in fact, there is no relationship between the

material tested by Plaintiffs’ expert and Bullseye’s emissions, and thus no basis for Plaintiffs’

gross speculation about environmental impacts.

That expert report is the only proof submitted by Plaintiffs to substantiate the core of

their certification motion. They offer no actual proof that Bullseye’s emissions entered any

property or affected any property interest, no tests of their properties or persons showing the

presence of metals, no proof of class wide impacts on the use and enjoyment of properties, and

no proof that even a single property has suffered any loss in value.

The deficiency of this showing is particularly surprising in light of the colloquy between

the court and Plaintiffs’ counsel at the July 26, 2016, hearing on Bullseye’s motion to dismiss.

Plaintiffs’ counsel acknowledged their claims required proof of the actual presence of Bullseye’s

emissions on their property. (Def.’s Ex. 9: Transcript of 07/26/16 Hearing on Motion to Dismiss,

at 19).2 Moreover, they acknowledged that just living in the same neighborhood as a company

that got bad press would not (with one very specific exception) suffice to support their

negligence claims. Id. at 15-18. But aside from one fatally flawed expert’s report, their case has

not progressed at all since that hearing. They offer no proof that their properties were actually

invaded by Bullseye’s emissions, or that their concerns are based on any more than newspaper

articles.

In contrast, Bullseye has established through rigorous, verified scientific analysis that it

has not contaminated the environment in its immediate vicinity, let alone across the proposed

2 Defendant’s exhibit references (“Def.’s Ex.”) refer to exhibits attached to the Declaration of

Carrie Menikoff filed herewith.


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class area. Indeed, Bullseye’s proof shows that the impact of its conduct can only be measured

on a property-by-property basis, not class wide via representative evidence. Moreover, Bullseye

has shown that there is no evidence of class wide interference with the use and enjoyment of

residences. And Bullseye has shown that the proposed class area is so diverse that property loss

valuations cannot be made on a class wide basis.

Plaintiffs have failed to meet the requirements of ORCP 32 and their motion should be

denied.

II. SUMMARY OF ARGUMENT

Plaintiffs have the burden of proving the five requirements of ORCP 32 A (numerosity,

commonality, typicality, adequacy, and notice) by a preponderance of the evidence, and by

providing the court sufficient proof to resolve factual disputes, including expert opinions.

(Section IV(A)). In a case such as this, where Plaintiffs seek to define a class in geographic

terms, they must provide sufficient, reliable evidence to establish class wide contamination.

(Section IV(B)). They have failed to do so and, therefore, fail to meet their ORCP 32 burdens.

Plaintiffs cannot establish numerosity by a mere head count, which is all they offer here.

They must prove that there are numerous persons who were actually harmed. (Section

IV(C)(1)). Similarly, to establish commonality, they must show that the central issue in the

case—here, whether property interests are injured—is susceptible to common proof. (Section

IV(C)(2)). Again, Plaintiffs have failed to show that others have been injured, or that there is

reliable common proof on that issue.

Plaintiffs also fail to show that they are typical of an entire class: they have made no

attempt to show there are others who share the same or similar grievance. They have not shown

actual injury to the property interests of others, and importantly made no attempt to show that


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others have suffered any loss of enjoyment or use of their properties. Bullseye has offered

specific proof to the contrary. (Section IV(C)(3)).

Plaintiffs are not adequate class representatives because they will not protect the interests

of the class. They have engaged in strategic claims splitting—abandoning personal injury claims

not just for themselves, but for anyone who joins the class. At the same time, they plainly

complain of physical injuries and seek medical monitoring as a remedy. Under Oregon law, all

class members will be precluded from bringing subsequent personal injury claims. While some

potential plaintiffs may opt out, those who do not will find personal injury claims barred.

(Section IV(C)(4)).

Plaintiffs also fail to show that a class action is a “superior” method to adjudicate their

claims, as required by ORCP 32 B. They have not, and cannot show that common questions

predominate over individual issues. ORCP 32 B(3). All Plaintiffs’ substantive claims require

proof of some actual injury to their property rights. Their attempt to establish that through an

expert’s opinion has failed; instead Bullseye has shown that property contamination, and

Bullseye’s responsibility for that contamination, if any, can only be proven on a property-by-

property basis. (Section IV(D)(1)(a)). Nuisance is too individualized for common determination

because: (1) there is no evidence of classwide substantial interference; and (2) use and enjoyment

is inherently individualized, and Bullseye has shown that many residents of the class area have

not been affected. (Section IV(D)(1)(b)). Trespass also is individualized because its requires

both an unauthorized intrusion and some resulting physical consequence or health hazard. In this

case, that will have to be resolved property-by-property. (Section IV(D)(1)(c)). Claims for

medical testing, medical monitoring, soil remediation, emotional distress and similar remedies

also each require individualized showings of need, such as present physical injury for


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monitoring, or actual property contamination for remediation. (Section IV(D)(1)(d) and (e)).

Similarly, seeking such individualized remedies by injunction fails ORCP 32 B(2), because the

injunction could not apply to the whole class. (Section IV(D)(2)). The individualized nature of

so many of the remedies sought, together with the fact that personal injury claims will not be

protected by the proposed class, show that potential class members may have an interest in

controlling separate actions. ORCP 32 B(4). (Section IV(D)(3)). Finally, the difficulties of

managing this case outweigh the potential benefits of class treatment. ORCP 32 B(7). In essence,

determining whether any particular property belongs in the class is as demanding as determining

whether the owner or resident of that property should get relief. Yet, there is no proliferation of

actual, versus theoretical, claims against Bullseye that would be resolved by a class action. Thus,

proceeding as a class action would almost certainly require more individualized assessments than

permitting the few aggrieved individuals to proceed on their own. (Section IV(D)(4)).

Plaintiffs also fail to meet the predominance requirement because they have failed to offer

proof of class-wide economic loss or diminution in property value. They offer no evidence that

any properties have in fact been damaged. Instead, they offer only the opinion of an alleged

expert that he could determine damages by a mass appraisal valuation. Several cases—including

two involving Plaintiffs’ expert—have held that such an assertion, unaccompanied by actual

analysis or proof, is insufficient to sustain a class. (Section IV(E)). Plaintiffs’ expert also asserts

that he can calculate damages caused by a “stigma” allegedly attached to class properties; but

this assertion also fails in the absence of proof of actual loss of value, and because the alleged

stigma is premised on fear or mere proximity to toxics. Finally, stigma damages are available

only for permanent damages, not injuries that can be discontinued or remediated. (Section

IV(E)(1) and (2)). Adding to these failings, Plaintiffs’ expert offers to present a “contingent


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valuation survey,” based on a survey he claims shows that, even if market values have not

declined, that some “value” has been lost. Such valuation surveys, however, are not generally

accepted in the field, and in any event Plaintiffs’ expert has not actually submitted his survey for

the court to determine its viability. (Section IV(E)(3)). In contrast to Plaintiffs’ amorphous and

speculative attempts to predict class wide property damages, Bullseye’s experts explain that they

have actually walked and driven through the proposed class area and determined that it is too

variable for class wide analysis. House values range from $1.75 million to $155,000; some are

on major streets; some are neighbors to commercial facilities; some are on large lots. And the

houses vary in proximity to other environmental contamination sources such as the railyard and

paint shops. Individual issues will predominate the evaluation of damages, if any, and the area is

not suitable for class wide evaluation.

III. FACTUAL BACKGROUND

Plaintiffs’ Motion for Class Certification requires the court to separate fact from

speculation, and reliable proof from the reactions of a misinformed public. Plaintiffs’

Memorandum in support of that Motion (“Pls.’ Motion”) is chock-full of—and largely based

on—newspaper and other press reports of Bullseye’s conduct and the resulting public reaction.

(See Pls.’ Motion at 2, fn. 1-6 & 8). But that press coverage—the accuracy of which Bullseye

disputes—is not evidence of the matters asserted therein. Those articles motivated Plaintiffs to

file this action, and caused the subjective “concerns” they hope to transform into damages. But

those articles do not establish the facts necessary for Plaintiffs to gain certification of their class

allegations.


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A. Plaintiffs Have Failed to Establish that Bullseye’s Emissions Damaged Their Property Interests.

All of Plaintiffs’ substantive causes of action require some showing of actual harm to

their property interests caused by Bullseye’s conduct. (See Section IV of this Memorandum.)

Plaintiffs seek to meet this burden with a report from a purported expert who opines that

Bullseye’s emissions contained a percentage of metals, which he further asserts must have

resulted in the deposition of metals on residences throughout the proposed class area. His

opinion, however, is factually wrong, and that error is fatal to Plaintiffs’ attempt to certify their

proposed class.

Plaintiffs’ also provided an expert’s air modeling study that purports to show a “plume”

of particulate matter emanating from Bullseye. (Pls.’ Motion at Ex. 6, Report of Dr. H. Andrew

Gray (“Gray Rpt.”)).3 Bullseye disputes this opinion and its underlying calculations, but need not

address those disputes here, because Plaintiffs do not claim this particulate is harmful or

actionable in and of itself.4 Plaintiffs have made clear that “particulate qua particulate” is not the

basis of their case, and the court has accepted that representation. (Ex 1: Transcript of 12/22/17

3In this Response, Bullseye addresses the class area proposed in Plaintiffs Motion for Class

Certification, which is also described as the “Affected Area” in their proposed Third Amended Complaint. In so doing, Bullseye does not waive its objection to the Plaintiffs’ dramatic expansion of this litigation. Bullseye’s argument showing the prejudice this has caused are presented in the contemporaneously filed Response to Motion for Leave to Amend.

4Gray’s report concludes that Bullseye contributed 0.2 micrograms of particulate matter per cubic meter of air (0.2 ug/m3) (equivalent to 0.2 parts per million), over the area of that plume. That concentration of particulate is one-sixtieth of the EPA’s National Ambient Air Quality Standard (NAAQS), which is 12 micrograms per cubic meter (12 ug/m3). As demonstrated by the attached report from Bullseye’s expert toxicologist, Dr. Stephen Foster, EPA’s air standard is authoritative, and the result of years of data collection, expert analysis, and litigation. (See Def.’s Ex. 2: Expert Report of Dr. Steven Foster (“Foster Rpt.”) at 3-4). It thus is clear why Plaintiffs appear to concede that Bullseye’s disputed particulate contribution to the air is not sufficient to support a claim of injury to property interests.


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Hearing on Motion to Strike at 17-22). Instead, Plaintiffs’ claims rest on whether there are metals

in that particulate and if so at what concentration.5

1. Plaintiffs’ “expert” erroneously relies on the wrong lab test and thus his conclusion is false.

Plaintiffs’ entire class certification motion thus rises or falls on the opinion of Dr. Mark

Chernaik, who asserts that Bullseye’s emissions contained a percentage of metals. (Pls.’ Motion,

Ex. 7: Report of Dr. Mr. Chernaik (“Chernaik Rpt.”)). No other evidence is submitted to

establish whether Bullseye emitted metals, and if so in what concentrations.6 Dr. Chernaik’s

report is riddled with errors, discussed in more detail below, but the first and most glaring error

is dispositive: he based his entire calculation on the wrong test.

In his report, Dr. Chernaik presents a summary chart purporting to show “An analysis of

levels of toxic metals in the material trapped by filtration within [Bullseye’s] baghouse.” Id. at

6. He is correct that Bullseye now operates a “baghouse” that filters its furnace exhaust. Testing

baghouse waste, of course, was crucial to his analysis because he contends it might be

representative of past emissions from Bullseye’s furnaces.7 But the test on which he relies was

not of baghouse material.

The full text of the lab report relied upon by Dr. Chernaik was submitted to the court as

an attachment to a declaration by Plaintiffs’ counsel at an earlier stage in this case. (See

5See also Plaintiffs’ Proposed Third Amended Complaint at Paragraph 17, which bases its class

allegation on “hazardous metal-laded particulate.” 6Plaintiffs wisely do not rely on their oft-referenced moss study, perhaps because it clearly states

that it does not show atmospheric air concentrations. See Donovan, G., Jovan, Sarah, et al., Using an epiphytic moss to identify previous unknown sources of atmospheric cadmium pollution, Science of the Total Environment 599 (2016), at 90.

7Bullseye disputes that a test of baghouse waste would be representative of past emissions. A baghouse is literally a giant vacuum that sucks waste out of Bullseye’s furnaces and introduces ambient air into the exhaust. This produces an entirely different waste profile than Bullseye’s previous system.


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Declaration of Daniel Mensher in Support of Plaintiffs’ Reply in Support of Motion for Leave to

Assert Claim of Punitive Damages, Exhibit A (“Mensher Decl.”)). Counsel stated that he and a

consultant visited the Bullseye facility on November 8, 2016, and that the consultant took

samples from approximately two-dozen 55-gallon drums. Those barrels contained different types

of materials, as Counsel stated:

Bullseye’s representatives and attorney represented to me that these drums contained a variety of materials including sweepings from the batch room floor and areas around the furnaces, as well as materials collected during stack cleanouts. Additional barrels contained materials that were cleaned out from “Baghouse West,” the filter system connected to Bullseye’s furnaces in the summer of 2016.

(Mensher Decl. at ¶ 5).

The lab report includes a chain of custody form that links Dr. Chernaik’s test results to

specific samples from specific barrels. (See Def.’s Ex. 3: Declaration of James R. Dresser

(“Dresser Decl.”) at ¶ 6). At the time of sampling, Plaintiffs’ consultant directed the lab to mix

together samples from four specific barrels to create a composite sample for testing. Id. at ¶ 8.

None of those four barrels contained baghouse material; instead they contained miscellaneous

waste material of the type described in counsel’s declaration. Id. at ¶ 9. (Def.’s Ex 4: Declaration

of Greg Gabel (“Gabel Decl.”) at ¶ 8). This is plainly apparent from the Mensher declaration,

which contained a photograph of one of the sampled barrels, reproduced here:


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The material visible on the surface of this barrel is not baghouse waste. Rather, as explained by

Bullseye employee Greg Gabel, the surface materials are crushed, clear glass, which was used at

Bullseye to “wash out” a device used to introduce raw materials into the furnace. Id. This was

material that never entered a furnace and therefore could not be representative of furnace

emissions. In contrast, baghouse waste—as pictured in one of the other barrels Plaintiffs

sampled—was densely compacted, fine particulate:


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(Gabel Decl. at ¶ 9).

Plaintiffs’ expert committed the most basic of errors—not checking his facts. His

contention that the material tested was representative of Bullseye’s emissions is simply wrong,

because the test was not, as he claims, done on baghouse material. Plaintiffs have presented no

alternate rationale for basing their entire case on this misrepresentative test.

2. The material tested by Plaintiff was not representative of Bullseye’s emissions. Dr. Chernaik’s error is fatal because the material tested, even if it was not baghouse

material, was not representative of Bullseye’s emissions. As explained in the Dresser and Gabel

declarations, all four barrels sampled and tested included an indeterminate mix of various wastes

from the factory including crushed glass, raw materials swept off the floor, raw materials

discarded because of mixing errors, chunks of glass chiseled out of the furnace, and various

types of material removed from the furnace exhaust system. (Dresser Decl. at ¶ 9; Gabel Decl. at

¶ 8). Along with the first picture above, the following three pictures illustrate the diverse mixture

in these barrels:


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(Dresser Decl. at ¶ 8). As these pictures illustrate, the material actually tested by Plaintiffs was

obviously a hodge-podge of different types of waste. Plaintiffs cannot show that it was

representative of emissions. The fact that these barrels may have included raw materials is

critical. Obviously, a sample that includes raw metals would not inform the key question of how

much of the raw material is consumed in the melting process versus how much is released in

emissions.

Plaintiffs may contend they believed this material was “stack cleanout,” meaning

particulate removed from the furnace stacks before installation of the baghouse. But it is obvious

from the pictures above that was not the case. The shards of broken glass in the first picture were

not stack cleanout. While some of the barrels provided for testing were labelled as “stack waste”


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and others as “batch waste,” those labels represented a category of commingled waste, not each

barrel’s exclusive contents. (Dresser Decl. at ¶ 3; Gabel Decl. ¶ 3-5). And even the phrase “stack

cleanout” describes different types of waste. Thus, for example, Gabel identifies the material on

the surface of barrel number BGC-02-15 as colored glass that had to be chiseled out of the “flue

trough,” which connects the furnace to the brick stack. Id. at ¶ 8(d). Obviously, those large glass

chunks were not flying out of the stacks; material that solidified within the melting process does

not represent emissions. In short, there is no showing that Plaintiffs’ lab report was done on

material that was representative of Bullseye’s emissions.

3. The samples gathered by Plaintiffs’ expert do not even represent the contents of each barrel.

The sampling procedure employed by Plaintiffs’ consultant did not collect representative

samples. While these barrels clearly contained a mix of wastes, Plaintiffs’ consultant only took

small, 8-ounce sized scoops off the surface of each drum. (See Dresser Decl. at ¶ 10). A scoop

sample of this sort is only representative of the contents of a barrel if the entire barrel contains a

homogenous mixture of waste material. Id. at ¶ 11.

As explained in the Dresser Declaration, when a representative sample is desired from a

non-homogenous mixture such as these barrels, the customary practice is to use a tool that can

penetrate vertically into the material to obtain a continuous sample from all depths of the

material. Id.8 Plaintiffs consultant did not use such a sampler or any other similar device to

obtain a representative sample from these barrels. Id.

8EPA guidance recommends using a device known as a “Thief” for sampling “Dry

powders or granules,” and an Auger for “Sand or packed powders and granules.” EPA SW-846 Test Methods for Evaluating Solid Waste: Physical/Chemical Methods, Chapter 9 (Sampling Plans), pages 48-54. (Dresser Decl. at ¶ 11). A “Thief” sampler is typically three-feet long, or longer depending intended use, made of one-inch diameter stainless steel pipe with slotted


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As a result, even if the four barrels sampled by Plaintiff contained exclusively “stack

waste,” the samples taken by their consultant would not be representative. Bullseye had

numerous separate stacks attached to separate furnaces that were cleaned at different intervals.

Bullseye routinely used specific furnaces for making certain colors of glass to avoid

contamination of colors. As a result, one furnace might melt a lot of cadmium, while another

furnace might melt an entirely different metal. When a stack was cleaned, the character of the

waste generated could vary dramatically because of the specific metal melted in that furnace. As

a result, a scoop sample from the surface of a barrel that contained stack clean out would only

produce a sample of the last batch of waste added to the barrel. Such a sample would not be

representative of the entire barrel, and would not be representative of all Bullseye’s stack clean

out. (Gabel Decl. at ¶ 7).

Moreover, the four, 8-ounced sized samples would have been mixed together to obtain a

composite sample. (Dresser Decl. at ¶ 8). The lab would then have extracted 0.5 grams from the

composite sample for testing. Given that these four drums contained approximately 2,400 pounds

of waste, the one-half gram sample actually tested equals 0.00005 percent of the total waste

material. Id.

Finally, Plaintiffs consultant did not sample any of the larger debris or pieces of glass in

these barrels. He simply brushed them aside and scooped finer grained particulate beneath. (See

Dresser Decl. at ¶ 11).

openings along one side of the shaft length and a pointed end for penetrating through the material. It is used by pushing it down into the material and rotating a slightly smaller diameter slotted inner sleeve, thereby collecting materials along the entire length of the sampler. Id.


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Clearly, this small, random sampling of complex material cannot provide an accurate

basis for estimating metal percentages in Bullseye’s emissions.

4. Plaintiffs have not established that any metals from Bullseye actually landed on anyone’s property.

Dr. Chernaik exacerbates his errant conclusions by opining that a quantity of Bullseye-

emitted metals was deposited on each square meter within the purported “Bullseye Plume.” (Pls.’

Ex 7: Chernaik Rpt. at 8). This estimation is wrong, of course, because it is based on the bad data

discussed above. But there are additional reasons to reject Dr. Chernaik’s analysis, which are

briefly outlined here.

First, Dr. Chernaik is not qualified to offer an opinion on deposition rates.9 Plaintiffs

describe him as a “toxicologist” and his background is in assessing the impact of chemicals on

organisms. Id. at 1-2. He is not an air scientist. Estimating deposition rates caused by air

emissions is a complex process involving sophisticated dispersion models (such as AERMOD,

used by Plaintiffs in Exhibit 6), particle characteristics, geophysical parameters, meteorological

conditions, wet compared to dry deposition (particularly relevant in Portland), plume depletion

and resuspension. (Def.’s Ex. 6: Technical Memorandum from Dr. Kent Norville (“Norville

Memo.”) at 1).10 None of these variables are even considered by Dr. Chernaik, which

demonstrates his lack of competence and the unreliability of his estimate.

9The factual errors in Dr. Chernaik’s work are sufficient for present purposes to defeat his

opinions. However, Bullseye reserves the right to further challenge his lack of qualifications to comment on the subjects contained in his report, as well as the shortcomings in the methods he uses, before he testifies at trial. See Marcum v. Adventist Health Sys./W., 345 Or 237, 244, 193 P3d 1 (2008) (quoting State v. Brown, 297 Or 404, 417, 687 P2d 751 (1984)).

10See also Def.’s Ex. 2: Foster Rpt. at 6; Def.’s Ex. 5: Expert Report of Dr. Jeff Kurtz (“Kurtz Rpt.”) at 14.


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Second, Dr. Chernaik bases his conclusion on the misleading statement that state

“agencies” (note the plural) assume a certain deposition rate. In fact, the authority he cites for

this proposition is a single 2005 New Jersey publication that provides no citation for its choice of

value. (Def.’s Ex. 5: Kurtz Rpt. at 14). Moreover, the cited report studied dispersions in an urban

airshed; it did not involve predicting deposition from a single source. (Def.’s Ex. 6: Norville

Memo at 1). Using a single, unsupported assumption from a 12-year-old report, instead of the

science required to conduct air deposition modeling, is erroneous. (Def.’s Ex. 5: Kurtz Rpt. at

14).

5. Plaintiffs have not established any health risk from Bullseye’s emissions.

Bullseye also challenges Dr. Chernaik’s analysis and conclusions about the potential

health effects of Bullseye’s emissions. (Pls.’ Ex 7: Chernaik Rpt. at 7-8). Because these

predictions are based on fundamentally bad emission and deposition estimates, a full

examination of Dr. Chernaik’s health analysis is unnecessary at this time.

Nonetheless, one of his findings warrants comment. Dr. Chernaik opines that Bullseye’s

emissions produced indoor cadmium dust that “because of the persistent nature of toxic metals in

house dust, remains today a public health issue.” Id. at 9. There are numerous problems with this

assertion. First, he provides no actual data about cadmium dust concentrations in any homes,

including the named plaintiffs.

In addition, Dr. Chernaik fails to establish a cause-and-effect between indoor dust and

Bullseye. He notes that emissions deposited by Bullseye could be the source of dust tracked into

homes, but at the same time notes that because of background levels, the amount of cadmium in

soil is a “poor metric” of Bullseye’s emissions. Id. at n. 28. If cadmium in the soil does not


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correlate to Bullseye’s emissions, then when that same soil is tracked inside, it also cannot be

linked to Bullseye.

Finally, Dr. Chernaik ignores that, according to the EPA, outdoor soil only accounts for

30% to 40% of indoor dust. (See Def.’s Ex. 2: Foster Rpt. at 7). The balance is made up of a

variety of sources, many of which could produce cadmium, such as cigarette or wood smoke. Id.

at 8. Therefore, “the idea that indoor dust is high in locations near Bullseye, due to the operation

of Bullseye, is not borne out by the risk assessment literature.” Id.

Plaintiffs could easily have tested their homes for cadmium dust, ruled out indoor causes,

and offered some proof of the theory that Bullseye has intruded into their homes with unsafe

levels of cadmium. Either they have not done so, or they have chosen not to disclose the results.

Either way, there is no reason to evaluate Bullseye’s effects on the community by adopting Dr.

Chernaik’s speculative and unsupported theories. For this reason, Bullseye has served notice on

the named Plaintiffs that Bullseye will be conducting dust sampling in their homes and soil

sampling on their properties.

6. Summary

Plaintiffs have failed to submit any evidence of injury to their property rights, and thus

have failed to provide any support for their class allegations. This is not a dispute between

experts; rather, it is the failure to submit reliable factual evidence to meet their burden of

establishing a viable class and various ORCP 32 burdens.

B. Unrebutted Soil Tests Show No Injury to Property Interests Traceable to Bullseye, and Establish that Each Property Must Be Evaluated Separately, Not on a Classwide Basis.

Contrary to Plaintiffs’ speculative and inadequate showing, Bullseye submits evidence

that is concrete, scientifically sound, and unrebutted by Plaintiffs. Throughout this litigation,


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Bullseye has emphasized that DEQ soil testing showed no harmful concentration of metals near

Bullseye.11 Despite Bullseye’s ongoing reliance on these soil studies, Plaintiffs have chosen to

simply ignore them in their motion.12 As a result, no rebuttal to the soil tests has been offered.

1. DEQ soil tests and risk analyses show no contamination or harm.

DEQ conducted two rounds of soil testing in the immediate vicinity of Bullseye in

February and July of 2016. Those tests involved gathering 93 distinct samples, and produced two

separate reports from DEQ that analyzed metal concentrations in the soil. 13 The first of these

reports produced OHA’s public announcement, excerpted in the introduction above, that “the

levels of metals in soil around Bullseye Glass are too low to harm the health of people in the

surrounding community.” (emphasis in original).

In its analyses, DEQ evaluated its findings based on authoritative standards that are

commonly relied upon in the field. First, DEQ has established “background” levels of metal in

11See Bullseye’s 12/08/17 Motion to Strike Motion for Class Certification at 7. 12 Dr. Chernaik may be implicitly referencing the soil studies when he observes that “it is

important to consider that cadmium from Bullseye Glass deposits and mixes into large quantities of soil with trace amounts of cadmium, making soil levels of cadmium a poor metric for determining the significance of uncontrolled emissions from Bullseye Glass.” (Pls.’ Ex. 7: Chernaik Rpt. at 9 n. 28). First, as with so much of Dr. Chernaik’s commentary, this exceeds his expertise (he is not a geologist) and he fails to cite any authority for his supposition. Second, this is nonsensical. Of course, deposited metals dissipate in soils, but the remaining trace amounts—when compared to background levels—inform the quantity deposited in the first place. That’s the whole point of soil studies. Third, as Dr. Kurtz (see discussion in the following text), who is a geologist, says: Dr. Chernaik’s assertion “is directly contrary to all experience at sites dominated by aerial deposition (e.g., smelters) where the surficial soils are always enriched in the source metals compared to deeper soils.” (Def.’s Ex. 5: Kurtz Report at 14). Dr. Chernaik’s uninformed, unsupported, footnote assertion does not detract from the validity of the soil studies and analyses herein.

13Oregon DEQ, Bullseye Glass Area-Wide Soil Sampling Report, March 2016, (March 2016 DEQ Soil Results) attached as Exhibit 7 to Menikoff Declaration and available at http://www.oregon.gov/deq/FilterDocs/soilsamplingBG.pdf; Oregon DEQ, Bullseye Glass Area-Wide Phase 2 Soil Sampling Report, October 2016 (October 2016 DEQ Soil Results) attached as Exhibit 8 to Menikoff Declaration and available at http://www.oregon.gov/deq/FilterDocs/bullseyeSSR2.pdf.

http://www.oregon.gov/deq/FilterDocs/soilsamplingBG.pdf

http://www.oregon.gov/deq/FilterDocs/bullseyeSSR2.pdf


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soils, representing naturally occurring concentrations.14 Background levels were established to

improve assessment of metals-contaminated sites.15 Second, DEQ has established Risk-Based

Concentrations (RBCs) for metals in soils, representing screening levels at which metals might

pose a health risk.16 Third, DEQ also relied on risk based standards established by the relevant

federal agency, the Agency for Toxic Substances and Disease Registry (ATSDR), a component

of the Center for Disease Control.

DEQ’s evaluation of the results of its analysis can be summarized as follows:

• Concentration levels for aluminum, beryllium, iron, manganese, mercury, selenium, nickel, cobalt, and chromium (trivalent and total) were within or below “background” or naturally occurring levels.17

• Lead: Although numerous samples exceeded background levels, “lead is a common metal found in the urban environment and commonly persists near transportation corridors. Moreover, the pattern of lead detections does not suggest a spatial relationship to the Bullseye facility.”18

• Arsenic: Samples of arsenic were “generally consistent with background” in locations next to Bullseye, but exceeded both background and DEQ’s RBC levels in several locations. Importantly, however, DEQ concluded that: “Arsenic has no spatial relationship to the facility and likely represents variability in urban ambient conditions from multiple sources.”19

• Hexavalent Chromium: Levels varied over 22 samples, with the majority showing no detection. Nine samples exceeded DEQ’s RBC, but were below the ATSDR screening levels. Moreover, there was “no apparent pattern with respect to hexavalent chromium detections of the magnitude

14Oregon DEQ, Development of Oregon Background Metals in Soil, March 2013, available at,

http://www.oregon.gov/deq/FilterDocs/DebORbackgroundMetal.pdf 15Oregon DEQ Fact Sheet, Background Levels of Metals in Soils for Cleanups, March 2013,

available at https://digital.osl.state.or.us/islandora/object/osl%3A21141/datastream/OBJ/view. 16Oregon DEQ, Risk-Based Concentrations, available at

http://www.oregon.gov/deq/FilterDocs/RBDMTable.pdf 17Def.’s Ex. 7: Mar. 2016 DEQ Soil Result at 3; Def.’s Ex. 8: Oct. 2016 DEQ Soil Results at 2. 18Def.’s Ex. 8: Oct. 2016 DEQ Soil Results at 3. 19Def.’s Ex. 7: Mar. 2016 DEQ Soil Results at 3; Def.’s Ex. 8: Oct. 2016 DEQ Soil Results at 4.

http://www.oregon.gov/deq/FilterDocs/DebORbackgroundMetal.pdf

https://digital.osl.state.or.us/islandora/object/osl%3A21141/datastream/OBJ/view

http://www.oregon.gov/deq/FilterDocs/RBDMTable.pdf


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of detection.” Instead, those samples “appear to be spatially randomly dispersed with no clear relationship to the Bullseye facility.”20

• Cadmium: Cadmium levels were above background in multiple samples, but were well below DEQ’s RBC. Some exceed the ATSDR guideline. Although DEQ found “an apparent spatial relationship to the facility,” the “metal concentration appears to decline to baseline level at approximately 1,000 feet from the facility.”21

Bullseye contends these results establish several basic facts, each of which show that: (1)

there is no proof of actionable contamination, (2) metal concentrations vary over very short

distances, and, therefore (3) this case cannot be litigated on a classwide basis. First, it is apparent

that Bullseye is located in the midst of an area where there is significant and diverse metal

content in the soil from myriad sources. This poses a significant challenge to the Plaintiffs,

because even if they can show contamination on a given property, they will be unable to show

that Bullseye is the cause. Indeed, disputes over the cause of contamination will be as diverse

and numerous as the proposed class area, because for each property, unique alternate sources of

contamination will have to be evaluated.

Second, while metal concentrations of arsenic and hexavalent chromium—two of the

metals specifically mentioned by plaintiffs—exceed background levels and one (but not both) of

the risk standards, DEQ concluded that those concentrations were not “spatially related” to

Bullseye and instead suggest that there are other sources of these metals. Again, even if Plaintiffs

show contamination from one of these metals, DEQ’s scientific analysis contradicts any

assertion that Bullseye can be identified as the source. Finally, while cadmium is the single metal

that exceeds background levels that DEQ linked to the Bullseye facility, that only applies to

20Def.’s Ex. 8: Oct. 2016 DEQ Soil Results at 3-4. 21Id. at 3-4, Appendix C at 8.


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areas within 1,000 feet of the facility. Moreover, those concentrations are less than one-fourth of

DEQ’s RBC for urban residential soil. Hence, even when metals in soil can be traced to

Bullseye, the extent of that impact is limited to the area immediately surrounding Bullseye; in

fact, it does not even reach the residences of the named Plaintiffs. And even at its highest

concentrations, cadmium levels do not pose a health threat.

Plaintiffs attempt to prove a diffuse plume of contamination is thus contradicted by

concrete, scientific findings. Plaintiffs seek to proceed on flawed proof of classwide deposition

of heavy metals in the soil when in fact there is no evidence that such deposition occurred.

2. Bullseye’s expert validates DEQ’s findings and conclusions.

In preparation for the class certification stage, Bullseye retained Dr. Jeffrey Kurtz to

evaluate DEQ’s soil testing data and analyses. (Def.’s Ex. 5: Kurtz Rpt. at 1, 5). Dr. Kurtz also

included in his analysis a third set of soil data, based on samples collect by the United States

Forest Service in late 2015. Dr. Kurtz is uniquely suited to this case, because he has specialized

in evaluating heavy metal contamination of soils caused by smelters and other toxic releases. Id.

at 2-3.

Dr. Kurtz’s key findings are:

• Soil concentrations of chromium, hexavalent chromium, arsenic and lead do not appear to be spatially related to Bullseye Glass and alternate sources are likely.

• Elevated arsenic values in soils have very limited extent and the pattern of elevated concentrations does not overlap with Plaintiffs’ proposed class area, namely the area of elevated PM10 concentrations in air shown in Figure 1 of Dr. Gray’s expert report included in Plaintiff’s Memorandum in Support of Motion for Class Certification (November 28, 2017).

• While cadmium levels show a spatial relationship to the facility, the actual

extent of cadmium impacts, based on soil data, appears to be limited. Most of the samples showing concentrations above DEQ background levels are


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below risk levels established by ATSDR. Samples exceeding the ATSDR risk are tightly packed within a few blocks of the Bullseye facility, in an area containing less than 15 residences. The maximum concentrations in this area are less than one-quarter the DEQ’s RBC.

• There is no soil data supporting Plaintiffs proposed class area north of Taggart Street. Arsenic and cadmium results ion that are “non-detect.”

(Def.’s Ex. 5: Kurtz Rpt. at 3-4).

In short, Dr. Kurtz’s analysis of these soil tests validates DEQ’s conclusions, and is

consistent with OHA’s conclusion that “the levels of metals in soil around Bullseye Glass are

too low to harm the health of people in the surrounding community.”22 In addition, Bullseye’s

expert toxicologist has determined that “soil cadmium concentrations near Bullseye do not pose

a risk to human health.” (Def.’s Ex. 2: Foster Rpt. at 9). Significantly, Dr. Kurtz’s analysis also

shows that determining the impact of Bullseye’s emissions on property cannot be done with area-

wide studies, but must be examined on a property-by-property basis.

Dr. Kurtz’s findings are best understood by an examination of three element-specific

charts he has prepared. As noted above, Dr. Kurtz concludes, as did DEQ before him, that there

is not spatial relationship between elevated soil samples showing arsenic and hexavalent

chromium (CR+6). The charts for those two elements will be addressed first.

(a) Arsenic

The illustration below is an enlargement of the center part of Dr. Kurtz’s arsenic map.

(Def.’s Ex. 5: Kurtz Rpt. at 11). In this map, the blue rectangle at the center is Bullseye Glass,

the black lines are portions of the Plaintiffs’ proposed class area, and the gold stars identify the

22See n. 1, above.


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residences of the named plaintiffs. Each dot represents a soil sample, and they are color-coded to

represent metal concentrations.

The green dots represent DEQ background levels. In other words, the sample at each

green dot, including the dense group of samples to the right (east) of Bullseye, contained no

more arsenic than was expected to naturally occur in Portland’s soil. Notably, all the named

Plaintiffs are in areas populated by green dots, indicating that arsenic levels in the soil in their

immediate vicinities is normal and has not been impacted by Bullseye. The yellow dots are

samples that exceeded background levels, but did not exceed ATSDR risk levels.23 The

distribution of these samples, however, is such that Dr. Kurtz agreed with DEQ’s conclusion that

23DEQ’s RBC for arsenic is significantly lower than the background concentration of arsenic in

the soil, and therefore samples exceeding the RBC are not indicative of any health risk attributable to an individual source. (See Def.’s Ex. 7: Mar. 2016 DEQ Soil Results at 3).


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they were not spatially related to Bullseye, and likely indicate other sources. Finally, a small

number of pink dots exceed ATSDR guidelines, but are not related to Bullseye, and in fact are

much closer to a likely alternate source. As the map shows, a cluster of those dots is right next to

the railyard.

In short, this map flatly contradicts Plaintiffs claims of widespread contamination caused

by Bullseye. Equally important, it shows that test results vary over short distances. For example,

in the lower tight hand portion of the chart, three different color dots—green, yellow, and pink—

representing soil concentrations ranging from background level to above the ATSDR guideline,

are right next to each other. Clearly, contamination must be evaluated on a property-by-property

basis, and cannot be extrapolated from a test on half a gram of material found in the factory.

(b) Hexavalent Chromium

The map below shows concentrations of hexavalent chromium in soil near Bullseye, and

the same trends hold true. (See Def.’s Ex. 5: Kurtz Rpt. at 13). In this map, the black dots

represent samples where there was no detectable hexavalent chromium. Six samples within a

block of Bullseye showed no contamination. The green dots represent chromium within DEQ’s

urban residential RBC. Again, numerous samples right next to Bullseye were within the RBCs

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As both DEQ and Dr. Kurtz found, samples showing hexavalent chromium

contamination cannot be related to Bullseye’s location. The blue dots represent samples where

chromium concentrations exceeded DEQ’s RBC, but at lower levels (between 0.67 and 3.0

mg/kg). Some of those are located near Bullseye, but Dr. Kurtz found that elevated levels of

chromium “appear to be randomly distributed spatially.” Id. at 10. Significantly, the three highest

samples are shown in yellow, because they represent concentrations as much as ten times some

of the blue dots (between 3.0 and 11.3 mg/kg). Each of those yellow dots is farther from

Bullseye than much lower samples. This led to Dr. Kurtz’s conclusion that, with respect to

hexavalent chromium, samples showed “a poorly defined increase in concentration with

increasing distances from the Bullseye facility.” Id. at 6. In any event, the ATSDR guideline for

hexavalent chromium is 51 mg/kg, and the most heavily concentrated sample was only 11.3

mg/kg. Id. at 11.


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This chart provides even more powerful evidence that there is no environmental

contamination traceable to Bullseye, as opposed to a random smattering of metals across an

urban environment. Moreover, it strongly suggests the presence of other chromium sources in the

immediate vicinity. Once again, it also shows variability in samples over short distances, proving

the need for individualized property assessments.

(c) Cadmium

Finally, the following map shows concentrations of cadmium in the soil. (Def.’s Ex. 5:

Kurtz Rpt. at 12). Both DEQ and Dr. Kurtz found that there was a relationship between Bullseye

and cadmium in soils, but that the relationship deteriorated rapidly over between 1,000 and 2,000

feet. In this map, the green dots are within background levels and the blue dots are below the

ATSDR guidelines. All the individual plaintiffs are thus in areas where cadmium did not exceed

any risk level.


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The yellow dots identify samples that exceeded the ATSDR guideline. Those samples,

however, are all tightly clustered within a block or two of Bullseye, in a largely industrial area,

that contains less than 15 residences. Even the highest cadmium among the “yellow-dot”

samples, however, was less than one-quarter of DEQ’s RBC. The highest concentration found

was 35.8 mg/kg, whereas the DEQ urban residential RBC is 160 mg/kg.

Thus, even where testing shows some evidence that Bullseye’s emissions may have

deposited metals, both the area and the concentration of those metals is exceedingly small, and

does not violate Oregon’s safety guidelines. And again, this map shows that metal in soils varies

dramatically from property to property, requiring house-by-house evaluation.

Collectively, these three maps show that plaintiffs do not have a case. They seek damages

for injury to their property interests, yet there is no proof that materials from Bullseye ever

reached their residences. Even more, these maps show that any possible impact from Bullseye

was very limited in area, and could not possibly have reached putative class members miles in

different directions, as the plaintiffs allege.

C. Class Certification Is Improper Because Plaintiffs Provide No Evidence of Harm.

After nearly two years of litigation, Plaintiffs have presented no evidence of any form of

injury, whether to property or person.

1. Plaintiffs conducted soil sampling on their properties, but refuse to testify about the results which they have withheld as work product – for obvious reasons.

In July 2016 the Court asked Plaintiffs if they had a legal obligation to prove “some sort

of physical impact on their Property,” and Plaintiffs’ counsel correctly acknowledged, “yes, we

do.”24 But now, when it is finally time for Plaintiffs to actually offer proof of their claims, they

24Transcript of 07/26/16 Hearing on Defendant’s Motion to Dismiss (attached as Exhibit 9 to

Menikoff Declaration) at 21-22.


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do not even present the most common evidence in these types of cases – soil sampling from their

properties. Indeed, for the last year and half, Plaintiffs have steadfastly refused to produce or

answer questions about soil sampling conducted on their properties. 25 Instead, Plaintiffs rely

entirely on Dr. Chernaik’s report, which is fatally flawed and wholly unreliable. The only

reliable evidence in the record regarding alleged soil contamination surrounding Bullseye are the

uncontested DEQ soil samples and its conclusions, as well as the conclusions of Dr. Kurtz.

Likewise, despite alleging that the interiors of their homes are contaminated with arsenic,

cadmium and chromium from Bullseye, Plaintiffs have presented no reliable evidence, and

certainly no testing, to support this assertion.26

The evidence in the record undermines any notion that they could establish classwide

contamination based on representative evidence.

2. Despite pleading about the dangers of arsenic, cadmium and chromium, Plaintiffs present no evidence of any injury, and their non-privileged blood tests demonstrate no injury.

Plaintiffs plead a litany of general health risks related to arsenic, cadmium and chromium

(Second Amended Complaint at ¶¶ 28-34), yet they have presented no evidence of any such

injury. While Plaintiffs are withholding blood testing conducted at the behest of counsel,

multiple plaintiffs had blood testing outside of their attorney-client relationship. The results belie

any notion of classwide injury, let alone that classwide injury could be proven with

representative evidence.

25Def.’s Ex. 10: S. Meeker Dep. at 42:5-9; Def.’s Ex. 11: E. Meeker Dep. at 62:14-25; Def.’s Ex.

12: Goodwin Dep. at 107:4-17; Def.’s Ex. 13: Hauke Dep. at 49:5-15; Def.’s Ex. 14: Borte Dep. at 97:7-13; Def.’s Ex. 15: Pasini Dep. at 102:18-24; Def.’s Ex. 16: Sanseri Dep. at 122:18-123:1; Def.’s Ex. 17: Banich Dep. at 27:21-28:8.

26Def.’s Ex. 12: Goodwin Dep. at 107:18-20 (No indoor testing); Def.’s Ex. 18: Ely Dep. at 40:15-18 (No non-privileged indoor testing); Def.’s Ex. 20: Miner Dep. at 71:1-2 (No indoor testing).


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Howard Banich’s blood tests showed cadmium within the reference range for a non-

exposed adult, and arsenic and cadmium “nondetected.”27 Elizabeth Borte had her blood tested

for cadmium and arsenic, and both were found to be “within normal limits for arsenic and

cadmium.”28 Likewise, Kelly Goodwin’s “testing for chromium, cadmium, and arsenic all came

back negative[.]”29 Plaintiffs’ counsel apparently sent Ms. Goodwin for additional testing hoping

to get “better” results, but those results were apparently no more helpful to their cause, as

Plaintiffs are withholding them as privileged.30 Likewise, Judy Sanseri had three separate blood

tests over the course of several months, all of which came back negative for arsenic, cadmium

and chromium.31

Moreover, despite seeking medical monitoring as a remedy that, as a matter of law,

requires proof of a “present physical injury,” only one of the named Plaintiffs, Judy Sanseri

claims to be suffering from any such injury.32 While Ms. Sanseri claims to have extensive

personal injuries that she attributes to Bullseye emissions, as discussed below in Section

IV(C)(4), Plaintiffs have strategically waived her personal injury claims and, therefore, those of

putative class members.33

//

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27Def.’s Ex. 17: Banich Dep. at 31:12 - 35:7. 28Def.’s Ex. 14: Borte Dep. at 83:17-84:11. 29Def.’s Ex. 12: Goodwin Dep. at 88:2-5 30Id. at 88:6-20. 31Def.’s Ex. 16: Sanseri Dep. at 142:14-151:7. 32See, e.g., Def.’s Ex. 18: Ely Dep. at 38:24 - 39:2 (“Q: Since February 2016 have you

experienced any physical symptoms that you would attribute to Bullseye? A: Not that I’m aware of.”) 33Def.’s Ex. 16: Sanseri Dep. at 103:12 – 104:20; 111:8-24; 212:17-24.


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D. Members of the Proposed Class Have Suffered Neither Harm nor Interference with the Use and Enjoyment of Their Properties.

Plaintiffs’ assertion that putative class members share their claims and various forms

injury are demonstrably false. Attached to this briefing are the sworn declarations of putative

class members, people who have no stake in helping Bullseye, and who would stand to profit

handsomely were Plaintiffs to succeed on their claims. Their testimony undermines any notion

that the Plaintiffs are typical of the class they seek to represent, or that Plaintiffs’ testimony

could prove anything about their neighbors’ properties, experiences, or their beliefs about the

impact (or lack thereof) of Bullseye’s emissions.

Plaintiffs allege that after hearing news reports about Bullseye, they permanently ceased

gardening, stopped using their yards socially, limited their children from playing in their yards,

stopped eating produce from gardens, reduced or stopped doing yard work, and began taking off

shoes when entering their homes, and closing windows. (Pls.’ Motion at 12). This was irrational

conduct under the facts. Specifically, while Plaintiffs chose to rely on DEQ’s and OHA’s

February 2016 advice to temporarily cease gardening while the agencies further investigated

possible contamination, Plaintiffs apparently chose to ignore the same agencies’ March 2016

advice based on actual soil testing, and chose to continue to live in fear without any scientific

basis. See, e.g., Def.’s Ex. 17: Banich Dep. at 24:6-16 (explaining decision to ignore DEQ and

OHA all-clear notice based on general distrust of public agencies). This irrational conduct is not

representative of the putative class they seek to represent, a conclusion that is unassailable given

the sworn statements of putative class members.34

34Bullseye has obtained sworn declarations from various putative class members attesting to these

facts. These declarations are attached alphabetically as composite Exhibit 19 to the Menikoff Declaration.


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Quite simply, putative class members have not changed their use and enjoyment of their

properties. Unlike the Plaintiffs’ allegations, putative class members have not changed whether

they garden and eat their produce, or whether they consume eggs from chickens raised on their

property.35 They have not changed whether or how frequently they entertain and socialize at their

homes.36 They have not changed whether or not they remove their shoes in their homes, open or

close windows, or any other indoor aspects of how they use their homes.37 They have not

changed how they care for their yards.38 And they have not incurred any expenses attributable to

their nonexistent concerns about Bullseye.39

As for the landlords in this group, they have observed no change in their tenants’ use of

rented properties.40 Indeed, although some but not all tenants have access to a garden (a

distinction that undermines the notion that Plaintiffs’ testimony could represent all tenants in the

putative class), the two landlords have both observed their tenants gardening before and after

February 2016, and one joined his tenant for a dinner that included produce from the garden after

February 2016.41

Likewise, these putative class members have observed their neighbors gardening, caring

for their yards, entertaining outside their homes, walking dogs, as well as children playing in

35Def.’s Ex. 20: Diemer Decl. ¶¶ 6-7; Dittler Decl. ¶ 3; Heupel Decl. ¶ 3; Jacobsen Decl. ¶ 3;

Longaker Decl. ¶ 3-4; Merci Decl. ¶ 3-4; Peterson Decl. ¶¶ 5-6. 36Def.’s Ex. 20: Diemer Decl. ¶ 8; Dittler Decl. ¶ 5; Heupel Decl. ¶ 5; Jacobsen Decl. ¶ 6;

Longaker Decl. ¶ 6; Merci Decl. ¶ 6; Peterson Decl. ¶ 9. 37Def.’s Ex. 20: Diemer Decl. ¶ 10; Dittler Decl. ¶ 7; Heupel Decl. ¶ 7; Jacobsen Decl. ¶ 7;

Longaker Decl. ¶ 7; Merci Decl. ¶ 7; Peterson Decl. ¶ 10. 38Def.’s Ex. 20: Diemer Decl. ¶ 9; Dittler Decl. ¶ 4; Heupel Decl. ¶ 4; Jacobsen Decl. ¶ 5;

Longaker Decl. ¶ 5; Merci Decl. ¶ 5; Peterson Decl. ¶ 7-8. 39Def.’s Ex. 20: Diemer Decl. ¶ 12; Decl. ¶ 10; Heupel Decl. ¶ 10; Jacobsen Decl. ¶ 10; Longaker

Decl. ¶ 10; Merci Decl. ¶ 10; Peterson Decl. ¶ 13. 40Peterson Decl. ¶ 11; Jacobsen ¶ 3. 41Def.’s Ex. 20: Peterson Decl. ¶ 6, 11; Jacobsen ¶ 3.


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their yards and riding bicycles, all in the same manner as they had observed prior to the February

2016 media scare about Bullseye.42 They have also observed no change in the use of local parks,

including regular little league games, and the traditional creation and use of a giant hillside “slip

and slide” at Brooklyn Park in the summer.43

While the public reports about Bullseye were certainly known by these people, the March

2016 statement by the DEQ and OHA announcing that soil testing had shown it was safe to eat

produce, and that there was no risk to human health due to Bullseye, allayed any concerns. (See

Def.’s Ex. 20: Diemer Decl. at ¶ 5). Indeed, by this time Mr. Diemer had already contacted a soil

sampling company, Soil Solutions, to inquire about having his soil tested, but the company’s

representative told him they had tested a dozen properties in the area and all had checked out

safely. Id. at ¶ 4. The representative told Mr. Diemer that the public concern about Bullseye

seemed to be a “news scare” and that the actual facts did not back it up. Id. As a result, Mr.

Diemer opted not to have his soil tested or change how he lived, a decision that was bolstered by

the March 2016 “all clear” statement from DEQ and OHA. Id.

Not surprisingly, none of the putative class members or their family members have been

diagnosed as having, nor believe they have, any ailment attributable to Bullseye.44 Likewise,

none believes property values have been diminished, and Mr. Peterson confirms no change in the

rate at which his properties rent or periodic increases in rents to match market rates.45

42Def.’s Ex. 20: Dittler Decl. ¶ 9; Heupel Decl. ¶ 6, 9; Jacobsen Decl. ¶ 9; Longaker Decl. ¶ 9;

Merci Decl. ¶ 9; Peterson Decl. ¶ 12. 43Id. 44Def.’s Ex. 20: Diemer Decl. ¶ 14; Dittler Decl. ¶ 12; Heupel Decl. ¶ 12; Jacobsen Decl. ¶ 12;

Longaker Decl. ¶ 12; Merci Decl. ¶ 12; Peterson Decl. ¶¶ 16. 45Def.’s Ex. 20: Jo. Diemer Decl. ¶ 13; Dittler Decl. ¶ 11; Heupel Decl. ¶ 11; Jacobsen Decl. ¶ 11;

Longaker Decl. ¶ 11; Merci Decl. ¶ 11; Peterson Decl. ¶¶ 14-15.


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Whatever Plaintiffs may say about their personal beliefs and experiences, these

statements cannot be accepted as representative evidence for absent class members.

E. There Is No Evidence of Stigma Damages or Diminution in Property Values in the Proposed Class Area.

Plaintiffs have submitted a report by Dr. John A. Kilpatrick to suggest that property

values in the proposed class area have diminished in value owing to some Bullseye stigma. What

Plaintiffs conveniently fail to highlight is that Kilpatrick does not offer evidence of diminished

property values caused by Bullseye. Rather, he simply asserts that he has the ability using an

automated valuation method (AVM) to assess stigma damages. He says only that mass appraisal

valuation is possible. (Pls.’ Ex. 8: Report of Dr. J. Kilpatrick (“Kilpatrick Rpt.”) at ¶ 85). As will

be shown below in Section IV(E), plaintiffs cannot maintain a class action for stigma damages in

the absence of evidence of actual injury to property. As Bullseye’s expert, Richard Marchitelli,

states: “[Kilpatrick] offers no substantive explanation of the work actually undertaken. In

addition, no supporting data is provided nor is causation established linking the alleged

contamination to the economic harm supposedly realized by the Plaintiffs and members of the

putative class.” (Def.’s Ex. 21: Declaration of R. Marchitelli (“Marchitelli Decl.”) at 7).46 For

this reason alone, Plaintiffs should not be allowed to proceed because it is more likely than not

Kilpatrick will never find stigma damages. In another case, Kilpatrick similarly postulated that

he could—and would—establish diminution in value damages. The competing damages expert

disagreed. The federal circuit court reversed the grant of certification, and remanded the case for

an evaluation of the competing experts. On remand, however, plaintiffs filed a Motion for

46Richard Marchitelli is Executive Managing Director Cushman & Wakefield’s Valuation &

Advisory Services and is U.S. Practice Leader in its Dispute Analysis & Litigation Support. His expert real estate valuation experience is detailed in his declaration and the Curriculum Vita appended to same.


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Voluntary Dismissal after Kilpatrick and others conceded there was no diminution in property

values from the alleged chemical contamination. (Def.’s Ex. 22: Motion for Voluntary Dismissal

in Sher v. Raytheon Co., Case No. 08-CV-889-T33AEP (MD Fla June 16, 2011) at 2 (“there is

no statistical evidence of any diminution in property values in the area according to the work of

Dr. Kilpatrick, [et al.]”).

Equally problematic is that Kilpatrick’s mass appraisal valuation technique cannot—and

should not be used—when trying to determine a diminution in property values in areas “so

extraordinarily diverse in terms of their physical, locational, and economic attributes. . .” (Def.’s

Ex. 21: Marchitelli Decl. at 8). Indeed, so controversial is part of Kilpatrick’s methodology,

namely use of contingent valuation, that “experts espousing this methodology have been

excluded from testifying.” Id. Instead, as detailed through the work of Bullseye’s real estate

expert, Timothy Holzhauer, the appropriate method for valuing the impact of claimed

contamination “is thorough individual analyses of each affected property.” (Def.’s Ex. 23:

Holzhauer Decl. at 7).47 Holzhauer shows below there is an extreme range of properties within

the so-called Bullseye Plume area. He illustrates that these properties “compete in entirely

different markets and are not comparable across the board.” Id. Kilpatrick’s automated valuation

analysis is fundamentally flawed because it assumes that all properties are alike and are similarly

affected by the alleged contamination. Rarely—if ever—is this true.

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47Timothy Holzhauer is a Director at Cushman & Wakefield in the Dispute Analysis & Litigation

Practice. His appraisal experience and expertise are detailed in his declaration and the Curriculum Vita appended to same.


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IV. LEGAL ARGUMENT

A. Class Certification Standard

Plaintiffs seeking to certify a class action have the affirmative burden of establishing that

the requirements of ORCP 32 A and ORCP 32 B are satisfied. Pearson v. Phillip Morris, Inc.,

358 Or 88, 107, 361 P3d 3 (2015) (citing Bernard v. First Nat. Bank of Oregon, 275 Or 145, 153,

550 P2d 1203 (1976)). The court may only certify a class if it makes findings that Plaintiffs have

established each fact necessary to meet the requirements of ORCP 32 “by a preponderance of the

evidence.” In re Hydrogen Peroxide Antitrust Litig., 552 F3d 305, 307, 320 (3d Cir 2008), as

amended (Jan. 16, 2009) (“Factual determinations supporting Rule 23 findings must be made by

a preponderance of the evidence.”).48

If, and only if, the five requirements of ORCP 32 A (numerosity, commonality, typicality,

adequacy, and notice) are satisfied, the Court must then assess whether “a class action is superior

to other available methods for the fair and efficient adjudication of the controversy.” ORCP 32

B. “Again, the plaintiff must prevail on the superiority question before the action may be

maintained as a class action.” Pearson, 358 Or at 106.

48See also Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F3d 196, 202

(2d Cir 2008) (“Today, we dispel any remaining confusion and hold that the preponderance of the evidence standard applies to evidence proffered to establish Rule 23’s requirements.”); Alaska Elec. Pension Fund v. Flowserve Corp., 572 F3d 221, 228-29 (5th Cir 2009) (plaintiffs must satisfy FRCP 23 criteria “at the class certification stage by a preponderance of all admissible evidence.”); Dugan v. Ashley Furniture Indus., Inc., 2016 WL 9173459, at *2 (CD Cal Nov. 29, 2016) (“The Court finds that this [preponderance of the evidence standard] is the appropriate burden of proof.”); Anderson Living Tr. v. WPX Energy Prod., LLC, 306 FRD 312, 377 (D NM 2015), adh’d to on recons, 312 FRD 620 (DNM 2015) (“the Court will find facts for the purposes of class certification by the preponderance of the evidence, but will allow the parties to challenge these findings during the subsequent merits stage of this case.”)


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“Although a class certification decision is not a trial of the merits, the issues that must be

resolved for the class certification determination frequently overlap with the merits of a

plaintiffs’ class claim.” Pearson, 358 Or at 107-08 (citing to Coopers & Lybrand v. Livesay, 437

US 463, 469 (1978)). “[T]he essential objective of the class determination is to ‘formulate some

prediction as to how specific issues will play out’ at trial.” Id. at 108 (citing Waste Mgmt.

Holdings, Inc. v. Mowbray, 208 F3d 288, 298 (1st Cir 2000)). “To that end, a trial court must

‘probe behind the pleadings’ to the extent necessary to resolve the class claims.” Id. (citing Gen.

Telephone Co. v. Falcon, 457 US 147, 160 (1982)).

“If a class certification decision could come out different ways, depending on how factual

disputes are resolved, the answer is not—as it would be for summary judgment—that the class

should be certified and the dispute be resolved at trial. Instead, the trial court must resolve the

dispute for the limited purpose of the class certification decision.” Pearson, 358 Or at 108

(citation removed). “Likewise, if the parties have competing views of the law that governs the

class claim, a court must ‘stand ready to say what the law is’ to the extent that class

determination will come out differently depending on which view is correct.” Id.

The same is true when there is a challenge to a party’s reliance on experts:

[W]hen an expert’s report or testimony is critical to class certification, as it is here, … a district court must conclusively rule on any challenge to the expert’s qualifications or submissions prior to ruling on a class certification motion. That is, the district court must perform a full Daubert analysis before certifying the class if the situation warrants. *** The court must also resolve any challenge to the reliability of information provided by an expert if that information is relevant to establishing any of the Rule 23 requirements for class certification.

Am. Honda Motor Co. v. Allen, 600 F.3d 813, 815–16 (7th Cir. 2010) (citations omitted).


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In deciding whether to maintain a suit as a class action, courts should consider that class

actions are “an exception to the usual rule that litigation is conducted by and on behalf of the

individual named parties only.” Comcast Corp. v. Behrend, 569 US 27, 33 (2013) (citations

removed).

B. Plaintiffs’ Proposed “Affected Area” Fails for Lack of Proof of Contamination.

Plaintiffs’ proposed affected area is defined by a so-called “Bullseye Plume” of

particulate matter.49 But the plume per se is not the basis for their claim; rather, they claim that

heavy metals in that plume caused actionable injuries to Plaintiffs’ property rights. This proposed

class definition fails entirely because, as explained above, it is based on bad science.

Accordingly, Plaintiffs cannot meet any of their ORCP 32 A or B burdens.

In cases with far fewer evidentiary problems, courts have concluded that geographic class

definitions are fatally flawed and denied class certification when there is a lack of evidence of

classwide contamination. For example, in Duffin v. Exelon Corp., No. CIV A 06 C 1382, 2007

WL 845336, (ND Ill Mar 19, 2007) the court denied certification of a proposed class alleging

damage from release of hazardous tritium because the proposed class was defined in “geographic

terms unrelated to actual tritium contamination . . . [since] there was no probative evidence of

class-wide contamination justifying” the proposed boundaries. Id. at *3-5.

Similarly, in Brockman v. Barton Brands, Ltd., No. 3:06CV-332-H, 2007 WL 4162920

(WD Ky Nov. 21, 2007), the court was troubled by a proposed class definition of:

Owners or residents of single family residences within two miles of the Barton Brands facility, who allege the invasion of their property by noxious odors, fallout, pollutants and contaminants which originated from the Barton Brands facility located in

49As noted above, Bullseye disputes the viability of the “Bullseye Plume,” but that dispute need

not be addressed at this juncture.


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Bardstown, Kentucky and who have owned or resided at that single family residential home from July 11, 2003 to the present and continuing and who claim damage therefrom.

Id. at *1.

Brockman found the proposed definition deficient because it rested upon allegations and

speculation about cause, and because plaintiffs failed to submit evidence of actual contamination

spread throughout the proposed class area. The Brockman court was particularly troubled by the

plaintiffs’ failure to present the most common evidence in this type of case—soil samples:

These omissions are particularly glaring given how seemingly easy it would be for Plaintiffs to have obtained such information and how frequently such information plays a key role in class certification decisions for other courts in similar cases.

Id. at *5.50 Plaintiffs’ omission in this case is even more glaring, as they have testified to having

soil samples, but have not only failed to present them as evidence, they have refused to produce

them in discovery or testify about them based on work product and attorney-client privilege.

Where courts have accepted proposed geographic class definitions in contamination

cases, they have done so because the plaintiffs supported the class definition with significant,

reliable evidence of actual contamination attributable to the defendant. See, e.g., Boggs v.

Divested Atomic Corp., 141 FRD 58, 61-62 (SD Ohio 1991) (whether geographic class definition

is reasonable “requires an examination of the plaintiffs’ evidence of the dispersion of hazardous

emissions,” and concluding that expert data established connection between contamination and

50The lack of soil sampling data in this case is even more glaring, as Plaintiffs conducted soil

sampling on many properties, but have refused to provide this data or testify about the sampling results. Indeed, courts have found that plaintiffs’ failure to present evidence of contamination on their property in similar cases warrants dismissal for lack of standing. LaBauve v. Olin Corp., 231 FRD 632, 645–50 (SD Ala 2005) (dismissing for lack of standing when “plaintiffs have come forward with no evidence that the properties of plaintiffs . . . are presently contaminated with mercury,” and otherwise failed to present evidence of injury-in-fact.)


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defendant); Wehner v. Syntex Corp., 117 FRD 641, 643 (ND Cal 1987) (finding geographic class

definition reasonable where proposed class was limited to persons within “‘confirmed dioxin

sites’ as described in the final report of the Missouri Dioxin Task Force.”).

In this case, Plaintiffs have failed to provide the Court with any evidence that elevated

arsenic, cadmium, or chromium levels exist on their properties and are attributable to Bullseye,

let alone that such contamination exists throughout the soil in the so-called “Bullseye Plume.”

Accordingly, the Court should reject Plaintiffs’ proposed class definition and deny their motion

in its entirety.

C. Plaintiffs Fail to Satisfy the Requirements of ORCP 32 A.

Plaintiffs fail to satisfy the ORCP 32 A requirements of “numerosity,” “commonality

“typicality,” and “adequacy.” Plaintiffs bear the burden of satisfying these criteria with

competent evidence, see Safeway v. Or Public Employees Union, 152 Or App 349, 358, 954 P2d

196 (1998), and must establish each requirement of ORCP 32 “by a preponderance of the

evidence.” In re Hydrogen Peroxide Antitrust Litig., 552 F3d at 320. “If any one of the five

requirements [of ORCP 32 A] is not satisfied, the case cannot go forward as a class action.”

Pearson, 358 Or at 106. Plaintiffs fail across the board on ORCP 32 A, and this case is a prime

example why “the overwhelming majority of state and federal courts have denied certification of

environmental mass tort classes, even in single source cases.” In re MTBE Prods. Litig., 209

FRD 323, 347–48 (SDNY 2002). Plaintiffs should be ordered to proceed with their individual

claims and cease prosecuting their meritless class theory.

//

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1. Plaintiffs fail to establish “numerosity” because they fail to meet their burden to prove that they or putative class members were actually harmed.

ORCP 32 A(1) requires Plaintiffs to establish that “the class is so numerous that joinder

of all members is impracticable.” The central issue to be determined is whether the number of

class members is so great that “as a matter of efficient judicial administration it is impracticable

to have the multiple parties all before the court.” Newman v. Tualatin Development Co., Inc., 287

Or 47, 49, 597 P2d 800 (1979).

Numerosity is not established merely by citing the headcount of a proposed class. Rather,

Plaintiffs must prove by a preponderance of the evidence that there are a sufficient number of

people who “were actually harmed” by arsenic, cadmium and chromium from Bullseye

throughout the class area. George v. R. Good Logistics, L.L.C., CA2012-06-008, 2013 WL

58115, at *6 (Ohio Ct App Jan 7, 2013) (“While the trial court accepted Plaintiffs’ claims that

the class includes over 800 households, over 2,300 individuals, as well as dozens of businesses,

there is no indication in the record that this large amount of possible plaintiffs were actually

harmed by the water.”). See also, Duffin, 2007 WL 845336, at *5 (plaintiffs failed to establish

numerosity because no evidence of air or groundwater contamination throughout proposed class

area).

In this case, Plaintiffs do nothing more than reference a headcount by citing to their real

estate expert’s report. (Pls.’ Motion at 10). This is inadequate to meet their ORCP 32 numerosity

burden. Id. As discussed above, they fail to submit evidence of any contamination, let alone

classwide contamination, and ignore the soil samples (including their own) establishing that

there has been no harm.


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2. Commonality is not satisfied because the most central questions in the case

cannot be litigated based on representative evidence.

The “commonality” requirement of ORCP 32 asks whether “[t]here are questions of law

or fact common to the class.” ORCP 32 A(2). The “questions of law or fact common to the class”

standard “is easy to misread, since ‘[a]ny competently crafted class complaint literally raises

common ‘questions.’” Wal-Mart Stores, Inc. v. Dukes, 564 US 338, 349 (2011) (quoting Richard

A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 NYU L Rev 97, 131–132

(2009)). Not any common question will suffice to support class certification. The “common

contention [ ] must be of such a nature that it is capable of classwide resolution—which means

that determination of its truth or falsity will resolve an issue that is central to the validity of each

of the claims in one stroke.” Dukes, 564 US at 350.

The most fundamental question in this case—the one on which all of Plaintiffs’ claims

depend—is whether the properties belonging to the named plaintiffs and putative class members

are contaminated with actionable levels of arsenic, cadmium, or chromium from Bullseye.

Plaintiffs attempt to meet this burden with classwide proof has failed for all the reasons

discussed above. More significantly, the soil studies submitted by Bullseye show that metal

concentrations in soil vary widely over very short distances. No classwide extrapolations can

account for those property-by-property differences. This central question cannot be answered

with common evidence. See, e.g., Georgia-Pac. Consumer Products LP v. Ratner, 2014 WL

3396519, at *6 (Ga 2014) (commonality lacking where there was no record evidence “by which

plaintiffs might be able to prove on a classwide basis that the entire area by which the class was

defined, in fact, was contaminated with hydrogen sulfide gas from the sludge fields.”); Smith v.


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ConocoPhillips Pipe Line Co., 801 F3d 921, 925–27 (8th Cir 2015) (commonality did not exist

where plaintiffs were unable to prove classwide contamination).

3. Plaintiffs are not typical of the persons they seek to represent.

ORCP 32 A(3) requires that the representatives for a class assert claims that are typical of

the members of the class. Unlike commonality, which “looks at the relationship among the class

members generally,” typicality examines “the relationship between the proposed class

representative and the rest of the class.” 1 Newberg on Class Actions § 3:26 (5th ed.).

“The typicality requirement goes to the heart of a representative parties’ ability to

represent a class. . .” Deiter v. Microsoft Corp., 436 F3d 461, 466 (4th Cir 2006). “[Plaintiffs’]

claim cannot be so different from the claims of absent class members that their claims will not be

advanced by plaintiff’s proof of his own individual claim.” Id. More simply: “Typicality requires

that the named plaintiffs, by proving their claim, also prove the claims of the proposed class

members.” Opperman v. Allstate New Jersey Ins. Co., CIV. 07-1887, 2009 WL 3818063, *4

(DNJ Nov 13, 2009).

A demonstration of typicality requires a plaintiff to do more than state general conclusory

allegations that prospective class members have suffered the same injury as the plaintiff. Henke

v. Arco Midcon, L.L.C., No. 4:10CV86 HEA, 2014 WL 982777, at *9 (ED Mo Mar 12, 2014).

Typicality requires (a) “a demonstration that there are other members of the class who have the

same or similar grievances as the plaintiff,” and (b) “a comparison of the plaintiffs and the

prospective class members.” Thus, it is incumbent upon the plaintiff to submit sufficient

evidence for the court to conclude that prospective class members do, in fact, share in the

plaintiff’s claims.” Id. Plaintiffs fail to establish typicality for three reasons.


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(a) Plaintiffs fail to demonstrate their properties and those of putative class members are contaminated with arsenic, cadmium or chromium from Bullseye.

First, Plaintiffs fail to demonstrate that their properties, let alone those of thousands of

others far from theirs are actually contaminated with arsenic, cadmium or chromium originating

from Bullseye. This is fatal to a typicality showing. Henke, 2014 WL 982777, at *10 (“Plaintiffs

offer only conclusory allegations that landowners along the old ARCO pipeline have

unremediated leaks, without presenting evidence showing that any class member (including

Plaintiffs) has unremediated contaminated property with the pipeline as the source.”).

(b) Plaintiffs’ assertion that putative class members have suffered interference with the use and enjoyment of their properties is unsupported.

Second, beyond a blanket assertion that members of their proposed class “have changed

their use and enjoyment of their properties because of Bullseye’s emissions,” (Pls.’ Motion at

11), Plaintiffs do not offer any evidence51 of putative class members to establish such a

similarity. This is fatal to their claims. Henke, 2014 WL 982777, at *10 (“There is no specific

comparison of Plaintiffs to any prospective class member in terms of their use or ownership of

the land, the circumstances surrounding their grievances, or the relief they may seek.”). “[I]t is

incumbent upon the plaintiff to submit sufficient evidence for the court to conclude that

51Plaintiffs cite to a newspaper story from February 2016 about a family that ceased eating garden

produce after the OHA “advised residents within a half-mile radius of Bullseye Glass not to eat food or eggs from their garden indefinitely as a precaution.” Mensher Decl. Ex. 10. This proves nothing. First, the newspaper story and its statements, are inadmissible hearsay. Hickey v. Settlemier, 318 Or 196, 864 P2d 372 (1993) (en banc), citing Tate v. North Pacific College, 70 Or 160, 169, 140 P 743 (1914) (newspaper article is “mere hearsay”) and Horta v. Sullivan, 4 F3d 2, 8 (1st Cir 1993) (“The [newspaper] account is hearsay, inadmissible at trial to establish the truth of the reported facts.”). Second, the article is irrelevant, as it suggests the family in question was relying on the OHA’s February 2016 cautionary statement about not consuming produce, a caution that was rescinded a week later. Selectively choosing debunked news reports about nonexistent hazards, and choosing to ignore scientifically-based reports from the same government agencies, is yet another example of Plaintiffs’ nearly two-year long campaign to mislead the Court and the public about the Bullseye.


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prospective class members do, in fact, share in the plaintiff’s claims,” and Plaintiffs have failed

to do so. Id. at *9.

(c) Putative class members have not suffered an interference with the use and enjoyment of their properties.

Third, evidence submitted by Bullseye contradicts Plaintiffs’ assertion that they are

typical. Numerous putative class members have not changed their use and enjoyment of their

properties. Contrary to Plaintiffs’ allegations, as detailed above, putative class members have not

changed whether they garden and eat their produce; whether they consume eggs from chickens

raised on their property; whether or how frequently they entertain and socialize at their homes;

whether they remove their shoes in their homes, open or close windows, or any other indoor

aspects of how they use their homes or yards. Nor have they incurred any expenses attributable

to their nonexistent concerns about Bullseye.

In short, while Plaintiffs have ignored undisputed scientific data that debunks the myth of

Bullseye contamination, as well as ignored DEQ and OHA advice about the lack of risk related

to Bullseye, putative class members have not. Plaintiffs are atypical of the proposed class and

their motion should be denied.

4. Plaintiffs are not “adequate” class representatives because they are splitting claims.

ORCP 32 A(4) requires the Court to determine whether class representatives will “fairly

and adequately protect the interests of the class.” Class representatives are adequate if: “(1) there

are no disabling conflicts of interest between the class representatives and the class and (2) the

class is represented by counsel competent to handle such matters.” Alsea Veneer, Inc. v. State,

117 Or App 42, 53 (1992), aff’d in part, rev’d in part on other grounds, 318 Or 33 (1993).


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Plaintiffs fail on the first prong, as they have testified to splitting, and therefore sacrificing,

personal injury claims of the class they seek to represent.52

(a) Rule against splitting claims.

Oregon’s rule against splitting claims “forecloses a party that has litigated a claim against

another from further litigation on that same claim on any ground or theory of relief that the party

could have litigated in the first instance.” Bloomfield v. Weakland, 339 Or 504, 511, 123 P3d 275

(2005). In the class action context, “courts have found that a plaintiff proposing to be a class

representative cannot adequately do so where that plaintiff has voluntarily foregone personal

injury claims. These courts have repeatedly held that the failure to seek full recovery by splitting

out personal injury, property damage, and/or injunctive relief claims creates a significant conflict

of interest destroying adequacy of representation.” Henke, 2014 WL 982777, at *11. Such

findings are both common and, under the facts of this case, particularly warranted.53

//

//

52To be clear, Bullseye believes that any personal injury claims asserted against it have no merit.

Regardless, ORCP 32 A(4) requires the Court to assess whether those seeking to be appointed as class representatives will “fairly and adequately protect the interests of the class” they seek to represent, which brings Plaintiffs’ claims-splitting to the fore.

53See also Millett v. Atlantic Richfield Co., No. 98 Civ. 555, 2000 WL 359979, at *9 (Me Super Mar 2, 2000) (named plaintiffs were inadequate representatives because, although their complaint contained general allegations about alleged health risks of well contamination, they disavowed personal injury claims); Burkhead v. Louisville Gas & Elec. Co., 250 FRD 287, 296 (2008) (plaintiffs did not adequately protect interests of class members because, “while Plaintiffs wish to pursue property damage claims on behalf of the entire proposed class, they also wish to impose upon the entire proposed class their decision to give up any personal injury claims that could be asserted against LG & E.”); Mays v. Tennessee Valley Auth., 274 F.R.D. 614, 622-24 (ED Tenn 2011) (named plaintiffs in environmental contamination class action held inadequate because they strategically opted to split personal injury and other claims); In re Teflon Prods. Liability Litigation, 254 FRD 354, 368 (SD Iowa 2008) (“any possibility that a subsequent court could determine that claims for [certain types of damages] were barred by res judicata prevents the named plaintiffs’ interests from being fully aligned with those of the class”).


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(b) Plaintiffs are engaged in strategic claims splitting.

Plaintiffs’ pursuit of a “medical monitoring” remedy requires them to prove they and

each class member are suffering from a “present physical injury.” Lowe v. Phillip Morris, Inc.,

344 Or 403, 414, 183 P3d 181 (2008) (affirming dismissal of claim seeking medical monitoring

because plaintiff lacked “present physical injury.”). In addition, Judy Sanseri expressly testified

that she suffers from tightness in her chest, burning in her nose and eyes, dizziness, nausea,

gastrointestinal problems diagnosed as fibromyalgia, joint pain, osteopenia, arthritis and

increased blood pressure, and that she attributes all of these personal injuries to Bullseye’s

alleged air emissions. (Def.’s Ex. 16: Sanseri Dep. at 212:17-24).

Although Ms. Sanseri firmly asserts that she has personal injury claims, she testified that

Plaintiffs have strategically chosen not to pursue them.

Q. [A]are you seeking recovery at all for your current medical conditions other than the cost of the medical -- medications and supplements you are taking?

A. I’m asking for the supplements, like we just discussed, and medications, and I’m also asking for monitor, medical monitoring.

Q. Okay. Do you have an intention to seek recovery from Bullseye for your medical conditions other than what you are seeking in this lawsuit?

A. No. Q. And why not? A. Because I wanted to be part of this lawsuit, to be part of a

class action, to help other people and myself, and I don’t want to have litigation just with them and -- and going on for maybe awhile, you know. I don’t want to go through that. That is not something I want to do.

Q. Okay. So if I understand you correctly, you want to be part of this class action lawsuit suing Bullseye. Correct?

A. Being part of this action, yes.


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Q. But you don’t want to maintain a separate action by yourself?

A. No. And I know that I can’t do that. It would be one or the other. It would be either be part of the class action or have an individual lawsuit against them, and so I chose the class action.

(Def.’s Ex. 16: Sanseri Dep. 212:25-214:3). This is textbook claims splitting.

The Oregon Supreme Court spoke directly to Ms. Sanseri’s allegations in Peterson v.

Temple, 323 Or 322, 918 P2d 413 (1996). In that case, the plaintiff sustained personal injuries

and property damage in an auto accident. Id. at 324. He sued for property damage and obtained a

judgment against the defendant. In a subsequent proceeding, he pursued personal injury damages

against the same defendant based on the accident, but the trial court ruled that the earlier

judgment precluded his personal injury claim. Id. at 325. The Oregon Supreme Court affirmed,

finding that claims for property damage and for personal injuries arising from the same accident

must be brought in a single action. Id. at 332.

Here, despite (1) pursuing a medical monitoring remedy, (2) articulating personal injury

claims based on the same events underlying the property claims in this lawsuit, and (3) pleading

a litany of alleged health risks related to arsenic, cadmium and chromium (Second Am. Compl.

at ¶¶ 28-34), Plaintiffs have made a strategic decision to split personal injury claims from their

lawsuit, and to sacrifice not only their own personal injury claims as in Peterson, but those of the

entire class.54 This is precisely the scenario that warrants a finding of inadequacy. Millett, 2000

54Ms. Sanseri’s statement, “I know that I can’t do that. It would be one or the other,” strongly

suggests Plaintiffs’ counsel has strategically disavowed personal injury claims in an effort to avoid even more individualized issues than already exist. See Thompson v. Am. Tobacco Co., 189 FRD 544, 550 (D Minn 1999) (“representatives who tailored the class claims in an effort to improve the possibility of demonstrating commonality obtained this essentially cosmetic benefit only by presenting putative class members with significant risks of being told later that they impermissibly split a single cause of action.”).


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WL 359979, at *9 (named plaintiffs were inadequate representatives because, although their

complaint contained general allegations about alleged health risks of well contamination, they

disavowed personal injury claims). Accordingly, Plaintiffs’ motion should be denied.

(c) Plaintiffs’ claims splitting defense fails.

Plaintiffs attempt to preemptively excuse their claims splitting, arguing (1) two out-of-

state cases suggest there might not be no claim preclusion if putative class members later

attempted to pursue personal injury claims, and (2) even if there would be claim preclusion, class

members can opt out of this case if they so choose. (Pls.’ Motion at 13). Both of their attempted

justifications fail.

First, Plaintiffs entirely ignore controlling Oregon law that “forecloses a party that has

litigated a claim against another from further litigation on that same claim on any ground or

theory of relief that the party could have litigated in the first instance.” Bloomfield, 339 Or at 51.

Moreover, the Bentley case cited by Plaintiffs was premised on a finding that, “upon the record

before the Court, there would seem to be no reason to inquire into any bodily injuries allegedly

suffered by the individual class members.” Bentley v. Honeywell Int’l, Inc., 223 FRD 471, 483

(SD Ohio 2004). In this case, however, Plaintiffs’ claims will undeniably require discovery and

trial testimony regarding bodily injuries because they are seeking medical monitoring and,

regardless, seek recovery costs associated with medical testing, medications and various

supplements, all of which will require proof that such items were medically necessary.

Even if the Court were uncertain whether personal injury claims would be barred in

subsequent litigation, the proper course is to protect putative class members, not allow Plaintiffs

to gamble with their interests. Millett, 2000 WL 359979, at *9 (“the attempts by the

Contaminated Subclass representatives to exclude personal injury claims from this lawsuit may,


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in fact, jeopardize the subclass members’ ability to bring those claims in a later suit. *** This

court cannot predetermine the res judicata effect of a judgment in this action, rather, the effect of

the judgment can only be tested in a subsequent action. *** The possible prejudice of losing

personal injury claims is simply too great for [this] Court to conclude that the named Plaintiffs’

interests are aligned with those of the class.”).

Second, Plaintiffs’ argument that, “if necessary,” any of the thousands of putative class

members they seek to represent could “opt out” of this lawsuit to pursue personal injury claims is

meritless. (Pls.’ Motion at 13). To start, it would be grossly inefficient, as it would remove

persons from this lawsuit and require them to file new lawsuits based on both alleged property

damage and personal injury damages.

More importantly, while Plaintiffs’ “opt out” strategy might protect “those class members

who choose to opt out[,] . . . the right to opt out does nothing to protect the unraised personal

injury claims of those class members who decide not to opt out.” Millett, 2000 WL 359979, at

*9. “For these class members, the issue is whether the class representatives’ failure to raise

claims for personal injury in this action has jeopardized their ability to raise these claims in a

subsequent lawsuit. If their claims have been jeopardized, then the [class] representatives would

have to be found inadequate.” Id.

Finally, Plaintiffs’ proposed “opt out” fix unfairly shifts the risk from Plaintiffs to the

putative class members they seek to represent. This is a problem of Plaintiffs’ own making, and

they alone should bear the risk, particularly when the risk to them is nothing more than pursuing

their claims individually (i.e., zero risk), while the consequence to putative class members may

be forfeiture of claims.


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For all these reasons, Plaintiffs are inadequate class representatives and their motion

should be denied.

D. Class Litigation Is Not Superior to Traditional Litigation in this Case.

If—and only if—Plaintiffs can establish all five requirements of ORCP 32 A, the Court

must determine whether Plaintiffs have demonstrated that “a class action is superior to other

available methods for the fair and efficient adjudication of the controversy.” ORCP 32 B. The

rule identifies eight non-exhaustive factors “pertinent” to assessing superiority, four of which are

determinative in this case:

• ORCP 32 B(3): The extent to which questions of law or fact common to the members of the class predominate over any questions affecting only individual members (“predominance”); and

• ORCP 32 B(2): The extent to which the relief sought would take the form of injunctive relief or corresponding declaratory relief with respect to the class as a whole;

• ORCP 32 B(4): The interest of members of the class in individually

controlling the prosecution or defense of separate actions;

• ORCP 32 B(7): The difficulties likely to be encountered in the management of a class action that will be eliminated or significantly reduced if the controversy is adjudicated by other available means.

Plaintiffs’ motion falters on all three superiority criteria.

1. Class litigation is not superior because liability in this case can only be determined on property-by-property and person-by-person.

“The predominance criterion is far more demanding than the commonality requirement.”

Pearson, 358 Or at 109-10 (quoting Amchem Prods., Inc. v. Windsor, 521 US 591, 623–24

(1997)). “In practical terms, the inquiry is designed to determine if proof as to one class member

will be proof as to all, or whether dissimilarities among the class members will require

individualized inquiries.” Pearson, 358 Or at 110-11. Plaintiffs must produce evidence that each


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element of their claims can be established with class-wide facts, Bernard, 275 Or at 156, and

such proof must rise to a preponderance of the evidence. In re Hydrogen Peroxide Antitrust

Litig., 552 F3d 305, 307 (3d Cir 2008).

In this case, questions central to both liability and damages cannot be resolved through

common proof, and individualized issues will predominate.

(a) Whether arsenic, cadmium, or chromium exist at actionable levels on each of the properties in the putative class can only be determined on a property-by-property basis.

All three of Plaintiffs’ claims (nuisance, trespass and negligence) require, at a minimum,

proving: (a) the existence of arsenic and cadmium across the entire proposed class; (b) the

existence of these substances at actionable levels to cause actual injury; and (c) that Bullseye was

the source. Hoaglin v. Decker, 77 Or App 472, 476, 713 P2d 674 (1986) (trespass and negligence

require proof of actual damages); Jewett v. Deerhorn Enterprises, Inc., 281 Or 469, 473, 575 P2d

164 (1978) (“A nuisance, claimed to be an interference with the use and enjoyment of land, is

not actionable unless that interference is both substantial and unreasonable.”); Martin v.

Reynolds Metals Co., 221 Or 86, 94-100, 342 P 2d 790 (1959) (recognizing trespass based on

microscopic particles, but requiring proof of actual damages as element of claim); Ream v. Keen,

838 P2d 1073, 1075, 314 Or 370 (1992) (Oregon trespass law recognizes that “an intrusion may

be so trifling that the law should not recognize it.”); Cereghino v. Boeing Co., 873 F Supp 398,

402 (D Or 1994) (TCA in groundwater below statutorily prescribed maximum contaminant level

not actionable). These facts cannot be demonstrated on a classwide basis through representative

testimony.

Plaintiffs’ sole evidence of arsenic, cadmium, or chromium contamination is Dr.

Chernaik’s report. As discussed above, that report contains multiple fatal errors. As a result,


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Plaintiffs present the Court with no evidence of classwide contamination, and no means by which

to establish liability on any claims via representative evidence. They have not met their burden

on the most critical issue in this case, and class certification should be denied for all their claims.

Even if Plaintiffs had presented significant evidence of contamination on some properties

(which they have not), the evidence presented by Bullseye clearly shows that many properties

within the putative class area show no signs of contamination. Plaintiffs have never disputed this.

To prove classwide contamination then would require property-by-property testing. Duffin v.

Exelon Corp., 2007 WL 845336, at *7 (plaintiffs did not establish “predominance” because “no

evidence [was] offered establishing class-wide contamination.”).55

(b) Nuisance is too individualized to litigate through representative evidence. Nuisance is an unreasonable invasion of a person’s interest in the use and enjoyment of

the person’s land. Jacobson v. Crown Zellerbach Corp., 273 Or 15, 18, 539 P2d 641 (1975).

Liability requires proof of four elements: substantial interference; unreasonable interference;

culpable conduct; and causation. Id. In this case, the nuisance claim presents issues where

individual issues predominate.

55See also Church v. General Elec. Co., 138 F Supp2d 169, 182 (D Mass 2001) (lack of

predominance where claims of landowners seeking damages under nuisance and trespass for alleged PCB contamination would require expert measurement of the contamination of each individual property, considering the characteristics of each property, and that each property's contamination level would differ. “These differences pertain not just to damages, as plaintiffs argue, but to the threshold question of whether the contamination constitutes a nuisance or trespass,” thereby warranting denial of class certification.). Martin v. Shell Oil Co., 198 F.R.D. 580, 592 (D Conn 2000) (individual issues predominated over class issues where property owners sued gasoline station for groundwater contamination, inasmuch as individualized proof of causation would be necessary for each plaintiff to show that defendants' MBTE leakage reached that plaintiff's property and, if so, to what degree); Thomas v. FAG Bearings Corp. Inc., 846 F Supp 1400, 1404 (WD Mo 1994) (individual issues predominated in case involving TCE groundwater contamination, where diminution in property value and other issues required individualized proof, thereby precipitating “hundreds or thousands of individual mini-trials on complex causation and damages issues, while the only benefit of a class would be that the ruling of several common, but not particularly daunting issues, would be made applicable to the entire class”).


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In this case, even if there was sufficient evidence of classwide contamination, Plaintiffs’

allegations of interference with their use and enjoyment of their property could not establish such

interference for putative class members. Use and enjoyment is, by nature, too highly

individualized to be proven on a classwide basis by representative evidence. Henry v. Dow

Chemical Co., 2011 WL 3269118 (Mich Cir Ct, July 18, 2011) (“There are countless ways to

interfere with the use and enjoyment of land[.] The individual plaintiffs in the present case use

and enjoy their property in myriad ways. Whether plaintiffs have suffered an interference with or

loss of use and enjoyment of their property requires an individualized factual inquiry into each

plaintiff’s use and enjoyment of their property.”).

As set forth above, none of Plaintiffs’ allegations about how their use and enjoyment was

interfered with is shared by putative class members. Not one. Moreover, by ignoring public

agencies’ scientifically-based statements that garden produce was safe to eat, and that Bullseye

was not the source of misreported contamination, Plaintiffs were acting irrationally. Thus,

whatever interference they claim, it not protected conduct and cannot establish a nuisance claim.

Amphitheaters, Inc. v. Portland Meadows, 184 Or 336, 349–352, 198 P2d 847 (1948)

(recognizing Oregon nuisance law protects “a normal person of ordinary habits and

sensibilities.”). Regardless, any attempt to prove nuisance will necessitate person-by-person

analysis.

(c) Trespass is too individualized to litigate via representative evidence.

Again, even if Plaintiffs had been able to prove the existence of arsenic, cadmium or

chromium across the entire proposed class, their trespass claim could be established on a

classwide basis via representative evidence. This is because trespass is not established by any

invasion of an owner’s property. Were this the case, every homeowner living near a road would


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have a trespass claim against every driver of every vehicle emitting exhaust that deposited

material on their property. That is obviously not the law.

While invisible particles can cause a trespass, “a possessor's interest is not invaded by an

intrusion which is so trifling that it cannot be recognized by the law.” Martin v. Reynolds Metals

Co., 221 Or 86, 342 P2d 790 (1959). “Although Oregon trespass law no longer requires a

physical object intrude on a person’s property, it still requires a physical consequence to the

property to support a trespass claim.” Williams v. Invenergy, LLC, No. 3:13-CV-01391-AC, 2014

WL 7186854, at *19 (D Or Dec 16, 2014). In the context of invasions imperceptible to human

senses, courts commonly seek proof of some physical consequence to the property through

evidence that the concentration of the particular particles at issue rise to the level of a “health

hazard,” “harm to human health,” or “exceeds state action levels.” Bradley v. Am. Smelting &

Ref. Co., 635 F Supp. 1154, 1157 (WD Wash 1986) (concentrations of arsenic and cadmium in

soil, 53 ppm and 1.7 ppm, found insufficient to establish “health hazard” based on expert

testimony and, therefore, did not “constitute an injury to plaintiffs’ property.”); Abrams v. Nucor

Steel Marion, Inc., 694 Fed Appx 974, 978-80 (6th Cir 2017) (“a plaintiff may establish

substantial physical damage to, or interference with, his property by demonstrating that the

concentration of an invading contaminant on his property is likely to cause harm to human

health”); Abundiz v. Explorer Pipeline Co., 2003 WL 23096018, at *9 (ND Tex Nov 25, 2003)

(granting summary judgment on trespass claim because plaintiffs “provide[d] no evidence that

current levels of contaminants on their properties exceed state action levels”).

Thus, to establish trespass liability, Plaintiffs would not only be required to show the

existence of arsenic, cadmium and chromium traceable to Bullseye on each property throughout

the proposed class, but to also show that the concentration on each property rose to the level of a


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health risk (i.e., that it rose to a level at which there was some consequence to its presence). That

is an inherently individualized showing that depends entirely on soil testing on each individual

property. Particularly in light of the soil testing submitted by Bullseye, plaintiffs have not met

their burden to prove that representative testimony can establish trespass liability.

(d) Medical Monitoring is too individualized to address via representative evidence.

Plaintiffs claim for a medical monitoring remedy cannot be litigated based on

representative evidence. The Oregon Supreme Court has made clear that medical monitoring

requires proof of “present physical injury.” Lowe, 344 Or at 414; see also Henry v. Dow Chem.

Co., 473 Mich 63, 73, 701 NW2d 684, 689 (2005) (reversing denial of summary judgment based

on finding that “plaintiffs do not claim that they have suffered any present physical harm because

of defendant's allegedly negligent contamination of the Tittabawassee flood plain. Indeed,

plaintiffs in their arguments to this Court expressly deny having any present physical injuries.”).

While Judy Sanseri claims to suffer from physical injuries she attributes to Bullseye

(Def.’s Ex. 16: Sanseri Dep. at 103:12-104:20; 111:8-24; 212:17-24), the opposite is true for

other named plaintiffs. Bruce Ely, for example, testified as follows:

Q. Since February 2016 have you experienced any physical symptoms that you would attribute to Bullseye?

A. Not that I’m aware of.

(Def.’s Ex. 18: Ely Dep. 38:24 - 39:2).

Moreover, like Mr. Ely, putative class members have clearly disclaimed being diagnosed

with, or even subjectively believing that they suffer from, any present physical injury attributable

to Bullseye. Under these facts, it would be impossible for representative testimony—presumably

Ms. Sanseri’s—to establish a right to medical monitoring.


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(e) Because the costs of soil testing, medical testing and treatment are highly individualized, Plaintiffs cannot offer representative evidence.

Plaintiffs seek damages for costs associated with soil testing, medical testing, vitamins,

supplements, and prescription medication. Like the rest of their alleged damages, representative

testimony of the named plaintiffs cannot establish the right to such damages for all putative class

members. First, these alleged damages were not even incurred by all named plaintiffs, therefore,

there is no basis to conclude they were incurred by all absent class members. Some plaintiffs

spent money on soil testing but most did not. Some named plaintiffs incurred expenses for

medical testing, yet others did not. And only some incurred expenses for vitamins and

supplements. Only one, Judy Sanseri appears to seek recovery of prescription medication. (Def.’s

Ex. 16: Sanseri Dep. at 196:23-198:3.) Further, the married plaintiffs, Banich and Sanseri, are the

only ones to claim nearly $3,000 in air purifier expenses. (Def.’s Ex. 16: Sanseri Dep. at 196;

214). Other named plaintiffs did not incur such expenses. (Def.’s Ex. 19: Miner Depo. 71-72;

Def.’s Ex. 14: Borte Depo. 113:17-22). In short, the named plaintiffs are not even consistent with

one another when it comes to damages.

Yet again, not only are Plaintiffs’ alleged incidental damages different from one another,

but they are also incongruous with the putative class members they seek to represent. A sampling

of putative class members whom Plaintiffs seek to represent had no soil sampling, medical

testing or other incidental expenses stemming from news of the Bullseye emissions.56

56Def.’s Ex. 20: Diemer Decl. ¶ 12; Dittler Decl. ¶ 10; Heupel Decl. ¶ 10; Jacobsen Decl. ¶ 10;

Longaker Decl. ¶ 10; Merci Decl. ¶ 10; Peterson Decl. ¶ 13.


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(f) Noneconomic damages are not subject to common proof. Plaintiffs seek an award of up to $50,000.00 per person for “mental anguish, distress,

annoyance, inconvenience, and/or interference with their normal daily activities and the use of

their property.” (Second Am. Compl. at ¶ 80.) Determining such damages is far too

individualized for class treatment.

First, as demonstrated by sworn statements of putative class members, it will be

impossible to prove that every member of the putative class actually incurred such damages.

They were not particularly phased by the news reports, and life returned to normal once DEQ

and OHA conducted testing and informed the public it was safe to garden and that there was no

evidence of Plaintiffs’ so-called Bullseye Plume.

Second, even for the unidentifiable persons who might allege noneconomic damages,

such damages are inherently individualized and not subject to class treatment. Steering Comm. v.

Exxon Mobil Corp., 461 F3d 598, 602 (5th Cir 2006) (“The very nature of these damages,

compensating plaintiffs for emotional and other intangible injuries, necessarily implicates the

subjective differences of each plaintiff's circumstances; they are an individual, not class-wide,

remedy. The amount of compensatory damages to which any individual class member might be

entitled cannot be calculated by objective standards.”); Lipinski v. Beazer E., Inc., 76 Pa D &

C4th 479 (Com Pl 2005), aff'd sub nom. Lipinski v. Beazer E., 909 A2d 896 (Pa Super Ct 2006)

(lack of predominance in contamination case where, in addition to alleged diminution in value:

“Plaintiffs’ other damage claims also raise potential individualized issues, including the claims

for emotional distress, loss of enjoyment of property and inconvenience.”). Where, quite


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literally, every single class member would be required to individually prove damages, common

issues do not predominate.

2. The injunctions Plaintiffs seek will not provide relief to the class as a whole.

In making the superiority determination, Oregon courts should consider “[t]he extent to

which the relief sought would take the form of injunctive relief or corresponding declaratory

relief with respect to the class as a whole.” ORCP 32 B(2). This language is modeled after that of

FRCP 23(b)(2), which governs federal class actions seeking primarily injunctive relief. See

Froeber v. Liberty Mut. Ins. Co., 222 Or App 266, 277 at n 9 (2008). In Dukes, the United States

Supreme Court emphasized that Rule 23(b)(2) “does not authorize class certification when each

individual class member would be entitled to a different injunction or declaratory judgment

against the defendant.” Wal-Mart Stores, Inc. v. Dukes, 564 US 338, 360 (2011).

In this case, Plaintiffs seek various forms of injunctive relief, including orders requiring

Defendants to provide remediation for all class members’ properties, as well as medical

monitoring for all class members. (Sec. Am. Compl. ¶ 79; Request for Relief (E), (G).) Setting

aside the fact that these forms of relief are inappropriate for injunctive relief because they are

quantifiable as monetary damages, see Boughton v. Cotter Corp., 65 F3d 823, 827 (10th Cir

1995), they would also require highly specific tailoring to remedy each class member’s alleged

injuries.

Regarding the proposed property testing and remediation injunction, numerous courts

have found that injunctions seeking remediation of individual properties would not provide relief

to the class as a whole. See Ebert v. General Mills, Inc., 823 F3d 472, 481 (8th Cir 2016)

(refusing to certify class, in part because “[r]emediation efforts on each of the affected

properties, should they be awarded, will be unique”); Henke, 2014 WL 982777, at *12-13


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(holding that injunctive relief would not benefit class as a whole because the property testing

sought by plaintiffs would vary among individual property owners); In re MTBE Prods. Liab.

Litig., 209 FRD 323, 344 (SDNY 2002). In MTBE, plaintiffs sought injunctive relief that would

remediating class members’ allegedly contaminated wells. In its order denying class

certification, the court found that the remediation of the wells at issue would require

individualized investigation and treatment measures. Id.

Plaintiffs’ proposed injunction (at paragraph 79(vi) in the Second Amended Complaint)

requiring that Bullseye be ordered to pay “[t]he expense of future medical monitoring of the

Plaintiffs and Class members and/or their family members” also fails. First, not only do

numerous putative class members disavow suffering from any present physical injury,57 but even

other named Plaintiffs admit they are not suffering from such injury.58 As a matter of Oregon

law, such individuals cannot assert a claim for medical monitoring. Lowe v. Phillip Morris, Inc.,

344 Or 403, 414 (2008) (affirming dismissal of claim seeking medical monitoring because

plaintiff lacked “present physical injury,” and holding that “conduct that results only in a

significantly increased risk of future injury that requires medical monitoring does not give rise to

a claim[.]”).

Second, as illustrated by the fact that numerous Plaintiffs and putative class members

have no claim for medical monitoring, the existence of “present physical injury” as required

under Lowe is exceptionally individualized and cannot be determined classwide based on

57Def.’s Ex. 20: Diemer Decl. ¶ 14; Dittler Decl. ¶ 12; Heupel Decl. ¶ 12; Jacobsen Decl. ¶ 12;

Longaker Decl. ¶ 12; Merci Decl. ¶ 12; Peterson Decl. ¶ 16. 58 See, e.g., Def.’s Ex. 18: Ely Dep. 38:24 - 39:2.


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representative evidence. See, e.g., Gates v. Rohm and Haas Co., 655 F.3d 255, 270 (2011) (“the

inquiries into whether class members were exposed above background levels, whether class

members face a significantly increased risk of developing a serious latent disease, and whether a

medical monitoring regime is reasonably medically necessary all require considering individual

proof of class members’ specific characteristics.”); Leib v. Rex Energy Operating Corp., No. 06-

cv-802-JPG-CJP, 2008 WL 5377792, at *15 (SD Ill Dec 19, 2008) (refusing to certify medical-

monitoring class of plaintiffs allegedly exposed to contaminants from defendant’s wells because

proof of liability would hinge upon individualized inquiries).

Accordingly, the injunctive relief sought by Plaintiffs would be far too individualized and

would not provide relief to the class as a whole, and this factor in ORCP 32 B’s superiority

determination further weighs against class treatment.

3. The interest of members of the class in individually controlling the prosecution or defense of separate actions.

ORCP 32 B(4) requires consideration of the “interest of members of the class in

individually controlling the prosecution or defense of separate actions.” Where, as here,

Plaintiffs are splitting claims and there may reasonably be more persons like Judy Sanseri who

might assert personal injury claims, such persons have a great interest in controlling their own

litigation so as not to risk claim preclusion.

Further, this is not a class action involving small, so-called “negative suits” where

individuals would have little interest in controlling the course of litigation. Walton v. Franklin

Collection Agency, Inc., 190 FRD 404, 412 (ND Miss 2000) (“the most compelling rationale for

finding superiority in a class action is the existence of a negative value suit,” a case in which the

stakes to each member are too slight to repay the cost of the suit.) Far from it, Plaintiffs are


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seeking over $400,000 per person, a larger sum than a large percentage of individual claims.

Zinser v. Accufix Research Inst., Inc., 253 F3d 1180, 1190-91 (9th Cir 2001) (holding that “a

party with a claim of $50,000” weighed against certification under this factor). In short,

“individual interests are stronger, and classes are less likely to be certified when claims are larger

or when plaintiffs have an emotional connection to the litigation. 2 Newberg on Class Actions §

4:69 (5th ed.).

4. The difficulties of managing this litigation as a class action outweigh any potential benefits from class treatment.

The Court should deny class certification for the additional reason that this litigation is

not manageable as a class action. In determining whether a class action is a superior means of

adjudicating a controversy, ORCP 32 B requires consideration of “difficulties likely to be

encountered in the management of a class action that will be eliminated or significantly reduced

if the controversy is adjudicated by other available means.” ORCP 32 B(7). Given the huge

administrative and cost burdens inherent in class actions, the more individual inquiries required,

the less that case’s suitability for class treatment. See Parko v. Shell Oil Co., 739 F3d 1083, 1085

(“If resolving a common issue will not greatly simplify the litigation . . . the complications, the

unwieldiness, the delay, and the danger that class treatment would expose the defendant . . . to

settlement-forcing risk are not costs worth incurring.”).

Whatever common issues there may be in this case, the central issue—the existence of

actionable levels of arsenic, cadmium or chromium attributable to Bullseye on each property

within the proposed class—must be determined property-by-property. And even if that question

could be resolved on representative evidence (which it cannot), individual issues would still

dominate Plaintiffs’ claims. For example, Plaintiffs’ nuisance claim will require individual


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assessments of whether each class member suffered an interference with use and enjoyment of

their properties (we know many did not) and, if so, to what degree, for how long, and whether

any changes in behavior were actually reasonable, particularly in light of DEQ’s conclusions that

soil testing showed no risk to health. Likewise, Plaintiffs’ trespass claim will require property-

by-property determination of how much arsenic, cadmium and chromium, if any, exists on each

property, and whether it is more than a “trifling” amount that would not impact the soil or

present a health hazard. Questions of damages are, likewise, exceptionally individualized. Class

litigation of these claims would ultimately result in an unmanageable series of min-trials about

each and every property and each and every putative class member. Henke, 2014 WL 982777, at

*20 (“Given the numerous individualized factual and legal issues that exist here, the Court would

be faced with the classic case of having a lengthy series of ‘mini-trials’ for each claim and for

virtually every element of those claims.”).59

59Because in Fisher v. Ciba Specialty Chemicals Corp., 238 FRD 273, 310 (SD Ala 2006), the

district court so aptly summarized the manageability issue, we quote in full: In sum, there is undoubtedly a core nucleus of common facts relating to plaintiffs’ nuisance, trespass and negligence claims, encompassing such issues as whether Ciba created DDT and BHC wastes; whether, when and how those wastes may have migrated offsite; the pathways of that migration; and the characteristics and impacts of those chemicals. Adjudication of such common factual issues would establish background facts, but little else. Proof of the classwide facts would neither establish Ciba's liability to any class member nor fix the level of damages awarded to any class member. The common facts would not establish a single plaintiff's entitlement to recover on any theory of liability, or even show that a single plaintiff is aggrieved. Instead, after common proof was made, each plaintiff would have to prove individually that his property is contaminated and that the contamination came from Ciba. The Court would have to fix a separate FRCD for each plaintiff. After resolving the individualized contamination, causation, and timeliness issues, the damages inquiry would be carried out at the individual level. Notwithstanding class status, these proceedings would become mired in liability, causation, timeliness and damages inquiries that demand adjudication on a plaintiff-by-plaintiff basis. Far from increasing efficiency, class treatment of this action would create the gross inefficiency of numerous individualized determinations multiplied across hundreds of class members. Simply put, if litigated as a class action, this case would break down into an unmanageable variety of individual legal and factual issues.


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In addition to the numerous individual inquiries that the merits determinations of

Plaintiffs’ claims would require, two other factors make clear that this case is not manageable as

a class action: (1) simply determining who falls into the class would require extensive individual

inquiries; and (2) there is no evidence of a proliferation of claims, and even if there were,

numerous alternative avenues of resolution exist.

First, as discussed above, even if a proper class had been defined, the mere task of

identifying its members would present an enormous logistical and financial burden. The Oregon

Supreme Court has noted that an important purpose of examining whether a proposed class is

ascertainable is to “facilitate the court’s determination on the manageability of the action.”

Bernard v. First Nat’l, 275 Or 145, 156 (1976). In Bernard, the court refused to certify the

proposed class, in part because the “individual inquiry to determine whether [an] individual [is]

within or without the class . . . would be as great a burden as an identical inquiry would be to

determine whether something was owing to a member of the class.” Id. at 157. Similarly, in the

current matter, the onerous task of identifying each person who currently owns or resides upon

property within the class area (or, worse yet, who owned or resided as of the date of filing)

would defeat the purpose of utilizing a class action as a way of streamlining separate

adjudications.

Second, Oregon courts have noted that the manageability factor should be analyzed in

terms of the number of actual, versus theoretical, additional individual claims that would be

asserted against a defendant were class certification denied. See Dale v. Sitel Corp., No. 0502-

01375, 2007 WL 2154767 (Mult Co Cir Ct June 1, 2007) (noting that class action would not

increase manageability of litigation because “[t]he Court has received no information that any

members of the proposed class, other than Plaintiffs, have any interest in controlling the


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prosecution of separate actions” and “is unaware of any separate actions filed against Defendant

by any members of the proposed class with respect to the issues raised by Plaintiffs.”).

Here, much as in Dale, there are no similar cases pending against Bullseye other than

those filed by Plaintiffs, meaning that the denial of class treatment is unlikely to result in an

unmanageable number of discrete claims. Further, as the Dale court also noted, there are other

avenues available to streamline similar cases in the unlikely event that a large number of related

actions were filed, including “assignments to the same Judge for case management, changes of

venue to the same Circuit Court Judicial District, assignment by the Chief Justice of a Circuit

Judge to handle cases from another Judicial District for administrative efficiencies, etc.” Id.

None of those alternatives presents the same administrative and cost burdens as would a class

action.

Third, the manifest unfairness to Bullseye of allowing this case to proceed on a classwide

basis cannot be overstated. To permit a class action to proceed where it would deprive class

members or defendants of an opportunity to pursue or to defend individual claims that depend on

individual proof would violate due process. Lindsay v. Normet, 405 US 56, 66 (1972) (“Due

process requires that there be an opportunity to present every available defense.”); Bernard, 275

Or at 152 and n. 3 (noting that “[t]he stated purpose of [class certification] was to ‘achieve

economies of time, effort, and expense, and promote uniformity of decision as to persons

similarly situated, without sacrificing procedural fairness or bring about other undesirable

results.’”).

//

//


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E. Class Certification Is Improper Because Plaintiffs’ Offer No Evidence of Economic Loss and Cannot Establish that Common Questions of Alleged Diminution in Property Value Predominate Over Questions Affecting Individual Members.

As explained in Section IV(D)(1), above, ORCP 32 B(3) requires the Court to examine

“the extent to which questions of law or fact common to the members of the class predominate

over any questions affecting only individual members.” Pearson, 358 Or at 109–10. This

requirement applies with equal force to damages for alleged property loss.

Plaintiffs’ class theory is also dependent on the testimony of Dr. John A. Kilpatrick, on

whom they rely on for the proposition that plaintiffs have suffered economic injury through

property devaluation. Importantly, however, Kilpatrick asserts only that he has access to

information and approaches that “should be used for valuation and damage assessment purposes

in this case, including damages attributable to loss of use and enjoyment.” (Pls.’ Ex. 8: Kilpatrick

Rpt. at ¶ 85). Kilpatrick offers no evidence or testimony that Plaintiffs’ properties have in fact

been damaged. He asserts simply that he has a scientifically valid method that could determine

classwide damages relating to diminution in value. The sum of Kilpatrick’s opinion (as stated in

the “Conclusions” section of his report) is that mass appraisal valuation is possible in an

environmental contamination case.60 His declaration is nothing more than a self-promotional

statement of his ability to measure damages using an automated mass appraisal technique. It is

not enough for Kilpatrick to assert simply that a mass appraisal is possible using the approaches

described in his report. Plaintiffs cannot—and should not—be permitted to proceed on flimsy

claims of potential damages that prove nothing: “Merely providing testimony that a statistical

60As Kilpatrick puts it: “the approaches discussed in this affidavit can and should be used for

valuation and damage assessment purposes in this case; including damages attributable to loss of use and enjoyment.” (Pls.’ Ex. 8: Kilpatrick Rpt. at ¶ 85).


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analysis could be done, without proving that such an analysis was actually performed and was

scientifically valid, is insufficient.” The St. Joe Co. v. Leslie, 912 So 2d 21, 25 (Fla Dist Ct App

2005), (italics in original). The Florida appellate court in The St. Joe Company v. Leslie reversed

the lower court’s class certification in part because plaintiffs had not established a basis to prove

stigma damages classwide. Although the plaintiffs had offered testimony that a mass appraisal or

regression analysis could be performed to prove damages stemming from the dumping of waste

mill products, there was no evidence that it actually was performed or that if performed would be

accepted. The court thus held that “[plaintiffs] failed to prove there was an existing methodology

to prove ‘stigma’ damages.” Id. at 25.

For the same reason, Dr. Kilpatrick himself faced a similar outcome in at least two other

cases. In Sher v. Raytheon Co., 419 Fed Appx 887 (11th Cir 2011), Kilpatrick offered an

affidavit stating that he could develop a hedonic multiple regression model to determine

diminution in value damages yet he performed no such analysis. Defendant Raytheon for its part

offered testimony from its own damages expert that Kilpatrick’s proposed method of analysis

would be unacceptable, and would not eliminate the need to evaluate each property in the

proposed class area. Significantly, the Eleventh Circuit, after carefully reviewing the record,

reversed and remanded, concluding: “there is not enough evidence to support a class at this stage

of the litigation. The Plaintiffs have failed to carry their burden of proof.” Id. at 891.61 More

61As noted in Section III(E), above, the Eleventh Circuit remanded because it found the district

court failed to sufficiently weigh the conflicting expert testimony on class certification, which included the conflicting damages testimony. Sher v. Raytheon Co., 419 Fed Appx 887, 890 (11th Cir 2011). Following remand of the case for an evaluation of the experts, plaintiffs filed a Motion for Voluntary Dismissal in which they stipulated that “there is no statistical evidence of any diminution of property values in the area, according to the work of Dr. Kilpatrick, Dr. Jackson, Dr. Wilde, through the present date, due to environmental issues relating to the Raytheon facility.” (Def.’s Ex. 22: Motion for Voluntary Dismissal in Sher v. Raytheon Co.). Essentially, Kilpatrick’s assertion that he would establish damages was entirely misplaced. The same outcome is likely in this case.


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recently, the court in Lee-Bolton v. Koppers, Inc., 319 FRD 346 (ND Fla 2017), held that in the

absence of actual modeling there is no evidence of property diminution:

Dr. Kilpatrick has not yet run his AVM [automated valuation model] model, not even for the class representatives, thus there is no evidence that any home in the proposed class area has suffered a diminution in property value in this case, let alone classwide diminution in value.

Id. at 386. Hence, the absence of any substantive analysis or data on which to assert that damages

can in fact be determined classwide is fatal to Plaintiffs’ claim for class certification. The

predominance hurdle requires more than speculation or a bald, unsubstantiated assertion that it is

possible to assess stigma damages classwide. As with other elements of their case, the plaintiffs

must establish by a preponderance of the evidence that Plaintiffs’ properties have been damaged

and they must also prove that a scientifically reliable analysis was undertaken. This they have not

done. As shown below, in subsection (4), Bullseye for its part submits direct evidence (through

the testimony of Richard Marchitelli and Timothy Holzhauer) that individualized proof would be

necessary to prove property damage and that Bullseye—not other individual property-related

factors—caused any devaluation.

1. Stigma damages are not available because plaintiffs have offered no evidence of actual injury to property.

Importantly, Kilpatrick does not even claim to know that there has been property

devaluation in the Bullseye plume. By his own admission all he can say is that plaintiffs

potentially have a claim for damages for loss of use and enjoyment of their property and for loss

of market value based on the stigma associated with homes located in an area allegedly subjected

to environmental contamination. Kilpatrick’s opinion must be disregarded because absent a

showing of actual harm (i.e., contamination), plaintiffs cannot recover for these stigma damages.


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Pinares v. United Tech. Corp., 2012 WL 12854871, at *4 (SD Fla 2012) (citing to The St. Joe

Co., 912 So 2d at 21, 24-25)). Nowhere in Kilpatrick’s report “Conclusions” does he express that

there has in fact been a loss of value in Plaintiffs’ properties. Rather, as noted, he has simply

asserted that a methodology exists for “mass treatment for determining property values of the

residential properties within the Bullseye Plume.” (Pls.’ Ex. 8: Kilpatrick Rpt. at ¶ 85).

As shown in the Factual Background, Section III(A)(1) through (5) above, plaintiffs have

offered no evidence that their properties have in fact been contaminated. Even assuming

arguendo some heavy metals have been deposited on Plaintiffs’ properties, Kilpatrick himself

asserts only that there is a “potential for loss in property value.” Id. at ¶ 71 (emphasis added).

According to Kilpatrick, this potential for loss stems from “the existence of stigma surrounding

contaminated properties, and inform[s] [his] opinion about the percentage of diminution in value

suffered by properties within the Bullseye Plume.” Id. Again, The St. Joe Company case is

instructive here: the plaintiff property owners alleged direct and indirect injury to their soil and

water stemming from the defendant paper mill’s dumping of waste product. The property owners

moved for class certification on claims of trespass, nuisance and negligence, among others. The

trial court certified the class and the mill appealed. On review, the appellate court reversed

stating, “because no proof was adduced that any of the class representatives’ land was

contaminated, the concept of stigma damages is inapplicable.” The St. Joe Co., 912 So 2d at 24-

25).

Courts “have uniformly rejected claims of stigma damages absent evidence plaintiff’s

own property has suffered physical injury from the contamination.” Carson Harbor Village, Ltd.

V. Unocal Corp., 287 F Supp2d 1118, 1203 (CD Cal 2003). Moreover, most courts reject stigma

damages resulting solely from public fear of dangers in the vicinity that may reduce residential


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property values. See, e.g., Ogden v. Star Enter., 70 F 3d 1262, 1995 WL 709862, at *1 (4th Cir

1995) (4th Cir 1995) (“Neither fear of harm nor diminution in property value resulting from

mere proximity to the plume is enough”); Mehlenbacher v. Akzo Nobel Salt, Inc., 71 F Supp2d

179, 193 (WD NY 1999) (concluding where no physical damage to property, stigma damages

alone were too remote and speculative to be recoverable); Halliday v. Norton Co., 696 NYS 2d

549 (App Div 1999) (rejecting claim for stigma because no proof of contamination); Ramirez v.

Akzo Nobel Coatings, Inc., 153 Ohio App 3d 115, 117-18 (holding “stigma damages cannot be

recovered unless there is actual, physical damage to a plaintiff’s property”); Carter v. Monsanto

Co., 575 SE 2d 342, 347 (W Va 2002) (holding that fear alone is an insufficient basis for

recovery in private nuisance action seeking diminution in property value).

Similarly, the alleged injury cannot be based on an unsubstantiated fear. A Kentucky

court explained why plaintiffs were not entitled to property value diminution damages for their

trespass and nuisance claim even though they had proved defendants’ negligence caused

radiation and above-background levels on their properties. Cantrell v. Ashland, Inc., Nos.

2003CA001784, 2006 WL 2632567 (Ky Ct App Sept 15, 2006). The court in Cantrell relied on

the principle that the “law does not allow relief on the basis of an unsubstantiated phobia,” id. at

*9, and thus found that plaintiffs had not shown that the mere presence of radiation would

unreasonably interfere with their use and enjoyment of the properties. Id. For this reason, the

court held plaintiffs could not recover damages arising from an unsupported fear of radiation.

2. Stigma damages are not recoverable because plaintiffs allege a continuing trespass and nuisance.

Even were plaintiffs to provide evidence of actual harm here, many jurisdictions—

including Oregon—only permit recovery for stigma damages where there is a permanent trespass


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or nuisance. Damages for loss of market value are not recoverable for a continuing or temporary

trespass or nuisance, which is a defined as a tortious invasion of or interference with the

plaintiff’s property that can be discontinued or remediated. In re Burbank Envtl. Litig., 42 F

Supp2d 976, 984 (1998). Oregon law defines temporary damage as “damage that is susceptible

to repair.” McCormick v. City of Portland, 191 Or App 383, 82 P2d 1043 (2004) (citing to

Hudson v. Peavey Oil Company, 279 Or. 3, 10 (1977)). Damage may be classified as

“‘permanent’ in the sense that it [cannot] be repaired or rectified by any practical means, that it

[is] likely to persist for an undetermined but significant period of time, and the property’s value

to a prospective purchaser would be significantly affected.” Id. (citing to Hudson, 279 Or. at 11).

In McCormick, the appellate court rejected plaintiffs’ claim for recovery of loss of market value

for damage to their property caused by a landslide and exacerbated by the city’s negligence and

trespass. Plaintiffs argued the trial court erred in limiting their award to repair costs and should

have been awarded damages for loss in market value in addition to remediation costs. Id. at 386-

87. The court rejected plaintiffs’ argument, reasoning that plaintiffs’ property was not destined to

be worthless (or devalued) forever because (i) the stigma attached to the property owing to the

landslide would dissipate, and (ii) plaintiffs could restore the property to its pre-slide value. Id. at

388, 390. Hence, plaintiffs were not entitled to damage for loss of market value, i.e., stigma,

even though at the time of trial the property had no value. Id. at 390. In short, plaintiffs cannot

recover damages for both restoration and diminution in value.

Additionally, some courts refuse to award stigma damage claims recognizing they are

unduly speculative, especially if they seek damages for post-remediation diminution in property

value before the remediation has been completed. See Allgood v. Gen. Motors Corp., No.

102CV1007DFHJTAB, 2006 WL 2669337, at *35-37 (SD Ind Sept 18, 2006) (dismissing claims


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for post-remediation stigma because remediation was pending and any estimate would be

“speculative and premature”).

Assuming arguendo that Bullseye emissions effected a trespass or nuisance by depositing

contaminants on Plaintiffs’ properties (an assumption that is contrary to the facts presented), by

Plaintiffs’ own admission the alleged trespass contamination can be remediated with soil

removal. Plaintiffs are seeking “clean up or remediation expenses to remove or contain and make

safe the levels of heavy metals found” on Plaintiffs’ properties. (Second Am. Compl. at ¶

79(vi)).62 Furthermore, any future trespass and nuisance has long since been abated because

shortly after learning of the alleged HAPs emissions, Bullseye ceased the use of cadmium,

arsenic, and chromium. Soon thereafter, Bullseye installed a baghouse—a pollution control

device—that captures the heavy metals before they are released into the atmosphere.

3. Kilpatrick’s contingent valuation survey is unreliable and standing alone is not evidence of diminution in property value.

The unreliable and speculative nature of Kilpatrick’s report is further evidenced by this

narrow and limited contingent valuation survey he administered in December 2016. Contingent

valuation is a survey-based technique that “attempts to value things that typically do not have a

market price, such as the presence or absence of environmental contamination.” Cannon v. BP

Products N. Am., No. CV00622, 2013 WL 5514284, at *12 (SD Tex Sept 30, 2013). Kilpatrick

explains the “technique is used to analyze market participants’ willingness to pay for a positive

amenity or willingness to accept a negative amenity through compensation.” (Pls.’ Ex. 8:

Kilpatrick Rpt. at ¶ 67). Kilpatrick used contingent valuation analysis when he surveyed persons

62Plaintiffs further acknowledge the alleged trespass can be remediated insofar as they seek an

injunction “ordering Bullseye to remove the particles it has [allegedly] caused to be deposited.” Sec. Am. Compl. at ¶ 88.


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using a questionnaire purportedly based on a “Bullseye-like” contamination scenario. Id. at ¶ 70.

On this questionable study undertaken more than 12 month ago—and nothing more—Kilpatrick

postulates that within the Bullseye Plume there has been “a 25 to 33 percent diminution in

property values as a result of contamination similar to Bullseye.” Id. at ¶ 71.

The contingent valuation study must be disregarded because it is a fundamentally

unreliable method for assessing damages. The district court in Cannon v. BP Products North

America addressed this very issue in this class action certification case arising from numerous

chemical release and emissions events at BP Products Texas City Refinery. The court in Cannon

first observed that “a debate exists in the scientific community about the validity of contingent

valuation as a method for assessing market discounts associated with real estate disamenties.”

Cannon, 2013 WL 5514284, at *13. Bullseye’s expert, Richard Marchitelli, is expected to testify

on this point. His testimony will

address the history and origins of CV, the controversies it has created and the reasons why it is not widely accepted, why it is inappropriate for the uses to which it is put in the Kilpatrick report, and why CV will result in specious conclusions and unreasonably exaggerated claims of damages.

(Def.’s Ex. 21: Marchitelli Decl. at 8).

Additionally, Plaintiffs’ claims of loss of use and enjoyment also fail on a classwide basis

because their claims are widely inconsistent with the use of other putative class members. (See

Section III(D), above). Notwithstanding Plaintiffs’ claim of a loss of use and enjoyment based on

unsubstantiated fears that their properties are contaminated, many others in the putative class

have not reacted similarly. An extensive visual survey of the affected area in September 2017,

indicated that many putative class members, including some located very close to Bullseye, have

no apparent concerns of contamination. Many are still gardening and continue to grow and


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harvest vegetables despite the news of alleged HAPs emissions. (Def.’s Ex. 23: Anne Sturgill

Decl. at ¶ 5). And there is evidence that many putative class members have no concerns about

spending time outside. People have been observed using their yards, taking walks, and playing in

area parks and on local sporting fields. Id. at ¶ 11. All of which is to show that Plaintiffs’ fears

are not representative of the class and that any perceived stigma from supposed Bullseye

emissions is not uniform throughout the class. Further, any number of putative class members

state they have never been concerned about consuming produce from their gardens, doing yard

work, entertaining friends outdoors and walking throughout the neighborhood.63 Thus, as

previously stated, there are many who have not lost any use and enjoyment of their properties.

4. Because of the extreme physical, locational and economic diversity of properties, individual factors predominate over common and preclude certification.

Even assuming a CV analysis has some relative merit—which is not established—

contingent valuation cannot alone serve as a reliable calculation of damages. In rejecting Dr.

Simons’s CV survey, the Cannon court identified a number of problems with the survey that

rendered it an unreliable method for assessing damages. For example, the survey told

respondents about the presence of PAHs (ambient air pollution) in the air conditioning filter

systems in the homes but did not address that these are ubiquitous compounds expected in

detectable levels in the community soils and in living space surface dust of homes” in areas

unaffected by BP emissions. Id. “[T]he survey fail[ed] to account for the fact that certain houses

are more exposed to contamination based on their location in relation to the refinery.” Id. at *14.

The court in Cannon thus held, “regardless whether contingent valuation is a reliable

63Diemer Decl. ¶¶ 6-10; Dittler Decl. ¶¶ 3-8; Heupel Decl. ¶ 3-10; Jacobsen Decl. ¶ 3; 5-9;

Longaker Decl. ¶ 3-9; Merci Decl. ¶ 3-9; Peterson Decl. ¶¶ 5-12.


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methodology in general [Dr.] Simons’s contingent valuation analysis, standing alone, is unable

to serve as a reliable or formulaic causation and damages model in this case.” Id. at *13.64

The same problems infect Kilpatrick’s survey in this case. For instance, Kilpatrick could

not—and did not—take into account any of the differences in amount of alleged contamination

because there is no evidence of contamination on the named Plaintiffs’ properties. Further, there

is no evidence that he considered any of the many other varied factors that impact property

valuation. Indeed, this is an enduring flaw in Kilpatrick’s analyses as demonstrated in other

similar cases in which he has testified. In Henry v. St. Croix Alumina, LLC, No. 1999-0036, 2008

WL 2329223 (DC VI June 3, 2008), for example, the district court rejected Kilpatrick’s damages

analysis in part because he asserted a uniform diminution in value across the neighborhoods and

concluded that all suffered “from a ‘stigma’ as a result of the alleged contamination such that

even uncontaminated houses showed a marked drop in property value.” Kilpatrick also had to

concede that his approach excluded between “10 and 100 distinct factors that could impact the

value of any particular house. . .” Id. at *7. The court then concluded that the questions of

causation as well as damages with respect to property damage claims do not predominate as

required under [Federal] Rule 23(b)(3).” Id.

Likewise, in Lee-Bolton v. Koppers, Inc., 102 FRD 346 (ND Fla 2017), plaintiffs brought

a putative class action against a wood treatment facility for alleged property contamination from

64The court in Cannon commented further that without Dr. Simons’s testimony “each of the

roughly 14,300 putative Plaintiffs would have to prove damages by presenting appraisal figures before and after December 22, 2008 and would have to prove causation by presenting evidence that BP’s wrongful conduct, and not some other source, caused the diminution in their property value.” Cannon, 2013 WL 5514284, at *15 (citing to Steering Comm. v. Exxon Mobil Corp., 461 F3d 598, 602 (5th Cir 2006)). This scenario presents a classic case of individualized damages unsuitable for class action treatment.


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the use of carcinogenic contaminants. Plaintiffs (relying on Kilpatrick’s testimony) requested

classwide damages for remediation and diminished value owing to the stigma of contamination.

After a lengthy and detailed analysis of the expert testimony, the court found that damages

“would be dominated by individual factors.” Id. at 385. The district court denied certification.

Notably, however, even assuming that Kilpatrick’s testimony was admissible—an issue the court

did not reach—the court found that Kilpatrick erred in his opinion by simply assuming that all

homes were similarly contaminated. Essentially, the district determined that were he to employ

the mass appraisal for stigma damages, Kilpatrick would need to account for numerous

individual characteristics of the homes and surrounding neighborhoods which are not uniform

throughout the proposed class. Id. at 386.

Kilpatrick will do no such thing in this case. His declaration makes clear that he

fundamentally rejects an approach that involves incorporating individual appraisals that take

unique characteristics into account. Instead, he insists that “transactions in the affected areas are

best analyzed systematically. . .and the availability of both ATTOM data and transactional data

certainly supports the use of efficient mass-valuation methods.” (Pls.’ Ex. 8 at 81).

In contrast, Bullseye’s real estate experts, Richard Marchitelli and Timothy Holzhauer

demonstrate that accurate valuation requires individualized assessments, and further demonstrate

that automated valuation is unreliable and unworkable. As Marchitelli puts it, “‘property

idiosyncrasies’ are vastly different and cannot be trivialized to justify application of mass

appraisal techniques.” (Def.’s Ex. 21: Marchitelli Decl. at 8). Marchitelli will also demonstrate

that Kilpatrick’s multiple regression analysis is designed to measure market-wide trends (rough

averages), not individual property values: “Although AVMs have their rightful place in certain

situations . . . this is not one of those situations.” Id.


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In fact, Marchitelli identifies the independent research and investigation necessary to

establish property valuation in this case. Unlike the work proposed by Kilpatrick, because of the

diversity of properties in the area, he would necessarily analyze transaction data in the study area

(the Bullseye Plume area) to transaction data in sufficiently similar control areas. Resulting data

points (which will include mean and median selling prices in the study area and control areas)

will be evaluated and presented through tables and graphs depicting “the direction, rate, and

velocity of property value appreciation/depreciation.” Id. at 5. His investigation, research and

analysis, coupled with the work of expert appraiser Timothy Holzhauer, will provide a credible

and scientifically reliable assessment of property valuation in the area and will reliably show

whether the Bullseye media scare has in any way impacted those values.65

Expert appraiser, Timothy Holzhauer, for his part, has already established the extent of

“property idiosyncrasies” here that defy application of AVM. Timothy Holzhauer has traversed

more than 20 miles throughout the proposed class area on foot and in car. He has documented the

homes and its environs and has outlined in detail the many variations in real property that impact

property valuation. He has identified the many factors that demonstrate why individual issues

relating to property valuation will predominate over class issues. To demonstrate that

Kilpatrick’s automated valuation model is an unreliable and unworkable methodology,

Holzhauer summarizes in his declaration the extreme variations in properties within the proposed

class area:

65Because the research and analysis Marchitelli describes is complex, time consuming and labor

intensive, this work could not be completed for use in opposing Plaintiffs’ Motion for Class Certification. As is more fully explained in Marchitelli’ s declaration, Bullseye’s experts needed at a minimum 90 days to complete this detailed work. They could not conduct the study and analysis of the Bullseye Plume, which was identified for the first time in Plaintiff’s Class Certification Motion, in the limited time available. (Def.’s Ex. 21: Marchitelli Decl. at 6 ¶ 4).


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(Def.’s Ex. 23, Holzhauer Decl. at 6).

There is in fact a wide variation in property type and use within the Bullseye Plume area.

Because these properties are so different in architectural style, size, condition, age, amenities, use

and location, they compete in entirely different markets and are not comparable. Holzhauer

demonstrates by way of numerous representative examples that he personally viewed how the

diversity of uses and elements of value need to be considered on an individual basis. Following

are just some examples of properties that do not ever compete for the same buyers because of

their vastly different characteristics:


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a mid-century modern residence in a quiet neighborhood does not compete with the same buyers as a small, 100-year old property near a railyard. Id. at 8, ¶ A.

an ultra-modern concrete block building without a yard does not compete

with buyers interested in historically notable Victorian houses with large yards. Id. at 8, ¶ B.

homes fronting major, heavily trafficked thoroughfares may have

commercial potential and are unsuitable for buyers seeking a home in residential neighborhood. Id. at 9, ¶ C.

a multi-family concrete property would not have the same potential buyer

as a restored Craftsman-style home with an Accessory Dwelling Unit. Id. at 9, ¶ D.

Holzhauer offers many other comparisons to illustrate that these differing factors that interest

and motivate buyers place the buyers in different markets. Id. at 8-13. Ultimately, extreme

variations in properties necessarily require independent analyses. Holzhauer explains:

Id. at 6. Moreover, potential damages stemming from contamination cannot be assessed

uniformly across the Bullseye Plume because there are many other potential sources of

contamination:

//

//

//

//


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(Def.’s Ex. 23: Holzhauer Decl. at 7) (footnote omitted).66 This presents another fatal flaw in

Kilpatrick’s report. Marchitelli states: “no supporting data is provided nor is causation

established linking the alleged contamination to the economic harm supposedly realized by the

Plaintiffs and members of the putative class.” (Def.’s Ex. 21: Marchitelli Decl. at 7). See

Cannon, 2013 WL 5514284, *14 (concluding that plaintiffs’ damages economist’s contingent

valuation analysis was “not a reliable or formulaic model to establish causation or calculate

damages for the class.”) (emphasis added).

In summary, the automated valuation model proposed by Kilpatrick cannot take into

account the different markets and “property idiosyncrasies.” Rather it assumes that the properties

attract the same buyers with just minor changes in price when, in fact, the opposite is true. Thus,

Richard Marchitelli will testify that properties within the proposed class area “are so

extraordinarily diverse in terms of their physical, locational and economic attributes that an

66Holzhauer adds that a recent DEQ report concluded “there are sites still requiring major

remediation including some on the east side of the Willamette near the Bullseye Plume and the Superfund Site remains contaminated.” (Def.’s Ex. 23: Holzhauer Decl. at n. 2). All of which points to the difficulties plaintiffs have in establishing that Bullseye is the cause of any alleged devaluation.


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AVM [automated valuation model] would not produce credible results.” (Def.’s Ex. 21:

Marchitelli Decl. at 8). To further demonstrate the unreliability of the automated valuation

methodology in neighborhoods with diverse property types, Holzhauer reviewed Multnomah

County Assessor records. His assessment follows:

(Def.’s Ex. 23: Holzhauer Rpt. at 13). Put bluntly, if the data entered into the automated

valuation model is garbage, then the data generated by the model is garbage. The assessor’s

records show “how inconsistent and variable an automated valuation model can be in

comparison to actual market prices, particular[ly] when there are large variations in the

properties.” (Def.’s Ex. 23: Holzhauer Decl. at 13). Further, these records cannot “account for

numerous individual characteristics of the homes and the surrounding neighborhoods, which are

not uniform throughout the proposed class.” Lee-Bolton, 319 FRD at 386. Therefore, “the only

reliable method of valuing property and estimated damages in this case is through individual

market analyses of each property on its own.” (Def.’s Ex. 23: Holzhauer Decl. at 13).


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Where, as here, individual damages issues cannot be determined by reference to a

mathematical or formulaic calculation, the damages issue predominate over any common issues

shared by the class, and certification is improper. Steering Comm. v. Excon Mobil Corp., 461

F3d 598, 602 (5th Cir 2006). In short, because plaintiffs have offered no viable methodologies to

prove causation or damages, class certification should be denied. See Cannon, 2013 WL

5514284, at *15. See also Sher, 419 Fed Appx 887; Lee-Bolton, 319 FRD 346.

In sum, as aptly summarized by several district courts in other contamination cases,

“whether a plaintiff’s property is contaminated, the source of such contamination, the extent of

such contamination, the cause and timing of harm, and the resulting damage measured in

diminution of property value, are all questions that will require plaintiff-by-plaintiff scrutiny.”

Lee-Bolton, 319 FRD at 386 (quoting LaBauve v. Olin Corp., 231 FRD 632, 673 (SD Ala 2005)

(explaining difficulty of showing predominance in case involving mercury dust contamination).

The case against Bullseye is no different.

F. Notice

Should the Court certify this case, Bullseye agrees that the terms and form of notice

should be addressed by the parties within 30 days of any certification. Bullseye reserves all

objections, procedural and substantive, to such notice.

G. The Court Should Reject Plaintiffs’ Suggested Trifurcated Trial Plan.

Bullseye objects to Plaintiff’s proposed trifurcation of a potential trial. “Bifurcation of

issues for trial is not to be ordered routinely. A prerequisite to the exercise of discretion is that

bifurcation will promote one or more of the purposes of the rule, i.e., convenience, avoidance of

prejudice, or conduciveness to expedition and economy.” Bremner v. Charles, 312 Or 274, 821

P2d 1080 (1991); ORCP 53 B. “A decision to bifurcate under ORCP 53B may be made by a trial


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judge, therefore, only as a result of an informed exercise of discretion on the merits of each

case.” Id.

An order trifurcating trial at this stage of the litigation would be imprudent. First, if a

class is certified, the parties will need to conduct additional merits discovery, which could

materially alter the nature of any trial. Second, Bullseye believes summary judgment will be

warranted on all of Plaintiffs’ individual claims, so structuring a trial order would not only be

premature, but it would be subject to material changes depending on the outcome of future

motion practice. Third, if a class is certified, Bullseye believes it is highly likely that it will file a

motion to decertify the class after completing merits discovery, which could materially alter, or

wholly obviate, a potential trial. Accordingly, not only is the Court lacking sufficient information

about the merits to warrant bifurcation, but ordering any structure of a trial at this stage is simply

premature in light of the significant additional work to be done by both sides. “A decision to

bifurcate under ORCP 53B may be made by a trial judge, therefore, only as a result of an

informed exercise of discretion on the merits of each case.” Bremner, 312 Or at 279.

In addition, an order trifurcating trial is unwarranted and would likely be prejudicial. This

is not a case where liability can be bifurcated from damages. For example, liability on Plaintiffs’

nuisance claim depends on proving interference with the use and enjoyment of their properties,

and damages are measured based on such interference. It would be illogical, exceptionally

inefficient, and confusing to a jury to have multiple witnesses testifying in a liability stage, and

to then return to testify in a damages stage.

Finally, Bullseye expects expert testimony to be required for both liability and damages,

and expects the same experts, in some contexts, to be witnesses on both issues. It would


GRM Law Group


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materially inconvenient, grossly inefficient, and unnecessarily expensive to require the same out-

of-state experts to travel to and from Portland on multiple occasions.

For these initial reasons, a trial order trifurcating trial of this matter is unwarranted. To

the extent the Court is at all inclined to issue a trial order at this early stage, Bullseye requests the

opportunity for this issue to be separately and fully briefed and argued.

V. CONCLUSION

For the foregoing reasons, Plaintiffs’ Motion for Class Certification should be denied,

and Plaintiffs should be ordered to proceed with their individual claims.

DATED this 19th day of January 2018.

GRM LAW GROUP

ALLAN M. GARTEN, OSB No. 821360

[email protected]

_____________________________ KENT S. ROBINSON, OSB No. 086251 [email protected]

___________________________ CARRIE MENIKOFF, OSB No. 036045 [email protected]

/s/ Sean Driscoll SEAN DRISCOLL, OSB No. 022987

[email protected]

mailto:[email protected]




CERTIFICATE OF SERVICE

GRM Law Group 5285 Meadows Rd. Suite 330

Lake Oswego, OR 97035

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CERTIFICATE OF SERVICE

I hereby certify that I served a copy of BULLSEYE’S OPPOSITION TO MOTION

FOR CLASS CERTIFICATION on the following counsel of record by email on January 19,

2017:

Matthew J. Preusch [email protected] KELLER ROHRBACK L.L.P. 1129 State Street, Suite 8 Santa Barbara, CA 93101 Telephone: (805) 456-1496

Attorneys for Plaintiffs and the Proposed Class

Karl G. Anuta [email protected] LAW OFFICE OF KARL G. ANUTA, P.C. 735 S.W. First Avenue Strowbridge Bldg, Second Floor Portland, Oregon 97204 Telephone: (503) 827-0320


Daniel Mensher [email protected] Amy Williams-Derry [email protected] KELLER ROHRBACK L.L.P. 1201 Third Ave., Suite 3200 Seattle, WA 98101 Telephone: (206) 623-1900


GRM LAW GROUP

/s/ Carrie Menikoff Carrie Menikoff, OSB No. 036045 [email protected] 5285 Meadows Rd., Suite 330 Lake Oswego, OR 97035 Telephone: 503.730.5001

Attorney for Defendant Bullseye Glass Co.