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Chen v. Amtrak

United States District Court, E.D. Pennsylvania

October 18, 2019

JENNY CHEN, et al.
AMTRAK, et al.


          JUAN R. SANCHEZ, C.J.

         Plaintiffs 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.


         Amtrak 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.[2] See Defs.' Ex. D.

         The 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 treatment).

         Plaintiffs 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.

         The 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.

         Plaintiffs 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 County, Pennsylvania.

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.


         The 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).

         Rule 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."

         Proper 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. 2011).

         "Factual 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.

         In 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).

         Because 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." Id.

         Federal Rule of Evidence 702 governs the admissibility of expert testimony. Rule 702 "embodies a trilogy of restrictions on expert testimony: qualification, reliability and fit."[3]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 ...

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