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February 20, 2015 Practice Points

Eastern District of Louisiana Denies Remand of NORM Mass Action

By David M. Stein

On October 23, 2014, the Eastern District of Louisiana denied remand in the matters of Warren Lester, et al. v. Exxon Mobil Corp., et al. (E.D. La. No. 14-1844), and Shirley Bottley et al. v. Exxon Mobil Corp., et al. (E.D. La. No. 14-1840). The plaintiffs therein seek damages for various personal injuries, medical monitoring, property damages, and punitive damages allegedly arising from exposure to Naturally Occurring Radioactive Material (NORM) associated with the cleaning of used oilfield pipe. The original Lester action, filed in 2002 in the Civil District Court for the Parish of Orleans, included the claims of over 600 individuals, including those of the plaintiff Cornelius Bottley.

The Class Action Fairness Act (CAFA) was passed in 2005. CAFA allows removal to federal court of "mass actions," defined as actions "in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs' claims involve common questions of law or fact." In recent years, CAFA's "mass action" provision has been used as an additional means of removal where plaintiffs take some step deemed by the court to be a proposal to jointly try one or more substantially similar matters with 100 or more total claimants.

After Bottley's 2012 death, his heirs filed a separate wrongful death action (the Bottley action) in July 2014, also in the Civil District Court for the Parish of Orleans. When the Bottley plaintiffs moved to consolidate their action with the Lester action for the purpose of trial, ExxonMobil Oil Corporation (Mobil), a defendant in Bottley, removed both Lester and Bottley as a mass action under CAFA.

Judge Eldon Fallon of the Eastern District of Louisiana found that the Bottley plaintiffs' motion to consolidate constituted a proposal to jointly try the claims of 100 or more plaintiffs within the definition of a mass action and therefore triggered removability under CAFA. Specifically, Judge Fallon noted that the motion to consolidate expressly requested "a consolidation for purposes of trial pursuant to article 1561 of the Louisiana Code of Civil Procedure," which does not permit consolidation for any purpose other than trial. In so holding, the court agreed with the Seventh Circuit decision of In Re: Abbott Laboratories, Inc., 698 F.3d 568, 570 (7th Cir. 2012), wherein the court reasoned that a motion to consolidate for pretrial and trial purposes the claims of over 100 plaintiffs constituted a proposal for a joint trial under the mass action provision of CAFA.

While the plaintiffs argued that Lester's state court procedural history included several non-preclusive "trial flights" of fewer than twelve plaintiffs, and the intent of the Bottley plaintiffs' motion to consolidate was to be put into one of these flights, the court noted that the express language of the motion to consolidate requested only "consolidation for purposes of trial" and that pre-trial consolidation was impermissible under Louisiana law. Judge Fallon further noted that the eventual method of trial was for the court to determine, based on feasibility and efficiency, and that the requirement of a proposal for joint trial could not be interpreted as literally requiring a court to try the claims of 100 or more plaintiffs at the same time. Such a requirement, reasoned Judge Fallon, would be contrary to the plain language of CAFA, impractical, and could not have been Congress's intent.

Finally, the court rejected the plaintiffs' argument that Mobil's removal of Lester and Bottley was premature, as the Bottley plaintiffs' motion to consolidate had not been granted at the time of removal. Judge Fallon noted that, just as in the In Re: Abbott Laboratories matter, the court need not address whether or not the motion to consolidate had been granted. The plain language of CAFA required only a proposal for joint trial of 100 or more plaintiffs as the triggering event for removal.

Judge Fallon's ruling joins a growing body of caselaw, particularly from the Seventh and Eighth Circuits, wherein proposed consolidations have been deemed sufficient to trigger the mass action provision of CAFA—even if a consolidation is never actually granted. See, e.g., In Re: Abbott Laboratories, Inc., 698 F.3d 568, 570 (7th Cir. 2012); Bullard v. Burlington Northern Santa Fe Railway Co., 535 F.3d 759, 762 (7th Cir. 2008); Atwell v. Boston Scientific Corp., 740 F.3d 1160, 1162 (8th Cir. 2013). The Bottley and Lester plaintiffs have recently sought to appeal Judge Fallon's ruling, and the Fifth Circuit has agreed to hear the appeal.

Keywords: products liability, litigation, CAFA, Mass Action, Remand     

David M. Stein is with Adams & Reese in New Orleans, Louisiana.

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