United States District Court, E.D. Pennsylvania
JENNY CHEN, et al.
AMTRAK, et al.
R. SANCHEZ, C.J.
Jenny Chen and Brian Jordan filed this putative class action
against Defendants Amtrak and RWC, Inc. alleging claims for
nuisance, trespass, and negligence based on Defendants'
spraying of herbicides along Amtrak rail lines. Plaintiffs
filed the instant Motion for Class Certification pursuant to
Federal Rule of Civil Procedure 23. Because the Court finds
Plaintiffs' experts unreliable, and Plaintiffs relied
upon those experts to establish the Rule 23 requirements, the
Court will deny Plaintiffs' Motion.
contracts with RWC to receive vegetation management services.
See Defs.' Ex. B-C (statement of work and specifications
for vegetation management program). These services include
applying herbicides to Amtrak's rail lines within
Philadelphia County, Pennsylvania. See Defs.' Ex. D. The
contract between Amtrak and RWC includes two different
"post-emergent" spray brush programs: on-track and
off-track. See Defs.' Ex. C, ¶¶ 13, 16. The
spray programs include the spraying of AquaNeat-a
herbicide-along the rail lines. See Defs.' Ex. E.
Pursuant to the contract, RWC provided spray treatment
services along the Amtrak rail lines in Philadelphia County
on at least five occasions over three years from 2015 through
2017. See Defs.' Ex. D.
post-emergent on-track spray program provides for the
"[application to spot treat any and all
vegetation." See Defs." Ex. C, ¶ 16. The
post-emergent program also provides for "[f]ollow-up
spot treatment as required." See Id. The
off-track spray program involves, hand-spray application. See
Id. Although the spray treatment programs were made
using trucks with large gallon tanks, neither of the programs
involved the continuous spraying along the entirety of
Amtrak's rail lines in Philadelphia County. See
Defs.' Ex. E (describing use of freightliner truck, spray
tank, and herbicides applied); Defs.' Ex. D (providing
five daily field reports, three of which were post-emergent
on-track spray treatment, two of which were off-track spray
Jenny Chen and Brian Jordan live on Mantua Avenue in
Philadelphia, Pennsylvania. See Compl. ¶ 16.
Plaintiffs' home and backyard border Amtrak rail lines.
See Id. ¶18. Plaintiffs have an extensive
garden in their backyard including herbs, fruits, and
vegetables. See Id. ¶¶ 19-20. On August
16, 2017, RWC, pursuant to its contract with Amtrak, applied
AquaNeat "in certain adjacent areas of the right of
way" of Amtrak's rail lines. See Defs.' Ex. E.
After RWC's spraying, the garden in Plaintiffs'
backyard began to wilt and present brown leaves. See Compl.
¶¶ 30, 33. After a few days, most of the garden
appeared dead. See Id. ¶ 30.
Pennsylvania Department of Agriculture investigated the
incident. The investigation found glyphosate-an active
ingredient in AquaNeat-in Plaintiffs' soil. See Compl.
Ex. B. The Department subsequently issued a notice of warning
to RWC. The notice informed RWC the Department found the
spraying constituted a trespass and violated 7 Pa. Cons.
Stat. § 128.103(g) because it resulted in unwanted
residues on the property of another. Pl.'s Mot. for Class
Certification Ex. 2.
filed this putative class action, bringing claims for
nuisance, trespass, and negligence under Pennsylvania law.
See Compl. ¶ 52-65. Plaintiffs now seek class
certification and propose the following class:
All owners and lessees of residential properties located
within 100 meters of an Amtrak rail line in Philadelphia
See Pl.'s Mot. for Class Certification 5. The
class members would include the owners of approximately 3,
454 residential properties along the Amtrak rail lines in
Philadelphia County. See Id. at 5. The Court held
oral argument on the Motion on April 30, 2019. The Motion is
now ripe for review.
class action device is appropriate in cases where it
"saves the resources of both the courts and the parties
by permitting an issue potentially affecting every [class
member] to be litigated in an economical fashion under Rule
23." Gen. Tel. Co. of the Sw. v. Falcon, 457
U.S. 147, 155 (1982) (quoting Califano v. Yamasaki,
442 U.S. 682, 701 (1979)). A party seeking to certify an
action for class litigation must satisfy the four
prerequisites of Rule 23(a) and establish the action can be
maintained under at least one subsection of Rule 23(b).
23(a) requires plaintiffs to establish (1) the class is so
numerous that joinder of all members is impracticable; (2)
there are questions of law or fact common to the class; (3)
the claims or defenses of the representative parties are
typical of the claims or defenses of the class; and (4) the
representative parties will fairly and adequately protect the
interests of the class. Pursuant to Rule 23(b), Plaintiffs
here move for certification of their class under either of
subsection (b)(2) or (b)(3). Rule 23(b)(2) permits
certification where "the party opposing the class has
acted or refused to act on grounds that apply generally to
the class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a
whole." Rule 23(b)(3) permits certification where
"the court finds that the questions of law or fact
common to class members predominate over any questions
affecting only individual members, and that class action is
superior to the other available methods for fairly and
efficiently adjudicating the controversy."
analysis under Rule 23 requires "rigorous
consideration" of the evidence and arguments of the
parties and the Court must make specific findings that each
Rule 23 requirement is met. See In re Hydrogen Peroxide
Antitrust Litig, 552 F.3d 305, 307 (3d Cir. 2008). The
Third Circuit has emphasized that "actual, not presumed
conformance" with Rule 23 is essential to class
certification. See Id. at 326 (quoting Newton v.
Merrill Lynch, Pierce, Fenner & Smith, Inc., 259
F.3d 154, 167 (3d Cir. 2001)). District courts must resolve
all factual or legal disputes relevant to class
certification, even if they overlap with the merits. See
Gates v. Rohm and Haas Co., 265 F.R.D. 208, 214
(E.D. Pa. 2010), aff'd, 655 F.3d 255 (3d Cir.
determinations necessary to make Rule 23 findings must be
made by a preponderance of the evidence." See id,
(internal quotations and citations omitted). In considering
the relevant evidence, the Court is required to consider
expert testimony. See Id. "Weighing conflicting
expert testimony at the certification stage is not only
permissible; it may be integral to the rigorous analysis Rule
23 demands." In re Hydrogen Peroxide Antitrust
Litig., 552 F.3d at 323.
their Motion, Plaintiffs rely on the expert opinions of Dr.
Lok R. Pokhrel and Esther Needham to establish both the
numerosity and commonality requirements under Rule 23(a). See
Pl.'s Mot. 7. Specifically, Dr. Pokhrel concluded
"properties within 100 meters of Amtrak rail lines and
RWC, were exposed to glyphosate herbicide ... consistent with
the glyphosate exposure leading to the death of vegetation
within Plaintiffs' property." See Pl.'s Ex. 8,
at 5. Using this conclusion, Ms. Needham determined 3, 454
residential parcels "intersect with a 100 meter buffer
of Amtrak rail lines." See Pl.'s Ex. 7, at 8.
Defendants challenge both opinions under Daubert v.
Merrell Dow Pharmaceuticals, Inc, 509 U.S. 579 (1993).
the Court must consider expert testimony at the class
certification stage, the Court will first discuss the
Plaintiffs' proffered experts before addressing the
requirements of Rule 23. See In re Blood Reagents
Antitrust Litig., 783 F.3d 183, 187 (3d Cir. 2015)
(requiring courts to make a conclusive ruling on a
defendant's challenge to experts before addressing Rule
23(a) factors) (citing Messner v Northshore Univ.
HealthSystem, 669 F.3d 802, 812 (7th Cir. 2012)).
"[A] plaintiff cannot rely on challenged expert
testimony, when critical to class certification, to
demonstrate conformity with Rule 23 unless the plaintiff also
demonstrates, and the trial court finds, that the expert
testimony satisfies the standard set out in Daubert."
Rule of Evidence 702 governs the admissibility of expert
testimony. Rule 702 "embodies a trilogy of restrictions
on expert testimony: qualification, reliability and
fit."Schneider ex rel. Estate of Schneider
v. Fried,320 F.3d 396, 404 (3d Cir. 2003). The party
offering the expert evidence bears the burden of establishing
its admissibility by a preponderance of the evidence. See
Padillas v. Stork-Gamco, Inc.,186 F.3d 412, 418 (3d
Cir. 1999). To meet the "reliability" requirement,
the expert's opinion "must be based on the methods
and procedures rather than on' subjective belief or
unsupported speculation."` In re TMI Litig.,
193 F.3d6l2, 664 (3d Cir. 1999) (citation omitted). "The
focus is not upon the expert's conclusions, but rather
upon his methodology; the issue is whether the evidence