Mercury-Exposure Class Action Certified Against PGW (The Legal Intelligencer)July 28, 2008
A Philadelphia judge has certified three classes of Philadelphia residents and businesses in a class action that alleges that Philadelphia Gas Works has exposed some of its customers to mercury.
The plaintiffs are alleging they were exposed to mercury spills during the removal of mercury gas regulators and that PGW exposed other customers to mercury because of the continued presence of mercury regulators in their buildings.
Philadelphia Common Pleas Judge Mark I. Bernstein ruled Tuesday that the classes in Brophy v. Philadelphia Gas Works should be certified because they had met the five requirements of class action certification under Pennsylvania Rule of Civil Procedure 1702 and the further requirements under Rule 1708.
Certification under Rule 1702 is appropriate because the number of plaintiffs makes it impracticable to pursue individual actions, the judge said. The plaintiffs have common questions of law and fact. The classes' claims and PGW's defense of them are typical across the classes. Class counsel's representation is adequate, and Philadelphia Court of Common Pleas is an appropriate forum for the entirety of the classes, Bernstein concluded.
Certification under Rule 1708 is appropriate because the classes don't present serious managerial difficulties, individual adjudication could result in inconsistent adjudications, and the amounts that could be recovered in individual claims "are insufficient to warrant individual actions unless catastrophic injury occurs," Bernstein said.
"What pleases us most about the decision is that PGW customers will be getting information from the court, from us and from PGW about the threat to their health, and they'll be able to make reasoned decisions about what to do," said plaintiffs' attorney Thomas More Marrone of Feldman Shepherd Wohlgelernter Tanner Weinstock & Dodig.
The regulators, which reduce the pressure of natural gas to the lower pressure level required inside a building, have approximately two teaspoons of liquid mercury, a known toxic substance, Bernstein said.
The three classes include: a site testing class of individuals or companies with property from which PGW has removed mercury regulators; a medical testing class of individuals exposed to mercury during the removal of mercury regulators; and a mercury regulator removal class of individuals or businesses who had not yet had mercury regulators removed from their property.
A prior proposed settlement in the class action fell apart when Bernstein declined to give final approval to the settlement. The judge required a showing that some class members were willing to pay a fee to have mercury contamination testing. The Commonwealth Court found in an April 2007 ruling that Bernstein's decision to withhold final approval wasn't appealable. Both named plaintiff Donald Brophy and PGW had initiated a joint appeal.
Bernstein noted in his opinion this week that further settlement talks after the remand to common pleas court were not successful.
Marrone said settlement was not possible this time around because the price of testing for mercury had gone up to $300. He also criticized PGW for waiting for spills to be reported.
"Lawyers should listen to judges and when Judge Bernstein speaks, I sure listen," Marrone said. "And we redoubled our efforts to reach some kind of amicable resolution of the matter with PGW. They have a very different view of the case."
During the class certification hearing, Bernstein said in his recent opinion, a sampling of homes in Detroit and Chicago whose mercury regulators were removed found that mercury spills occurred in 0.5 percent of those homes. No sampling has been conducted in Philadelphia to determine the risk of mercury exposure for the 12,000 PGW customers that have had their mercury regulators removed, the judge said.
"If the Philadelphia experience is comparable, 60 homes had previously undiscovered mercury spilled during removal," Bernstein said. "Defendant PGW knows of and has cleaned 33 homes where mercury spills occurred and were reported by removal personnel."
PGW claims that 98.2 percent of 11,300 homes had their mercury regulators removed without a problem, so "the defense concedes that 203 homes have had toxic substances released . . . as a result of the PGW removal program," Bernstein said.
Marrone said the class has grown to 15,000 because regulators are still being removed.
Alan Feldman and Peter Newman of Feldman Shepherd are also co-plaintiffs' counsel.
Neil Witkes, Kathleen Campbell and Nicole Moshang of Manko Gold Katcher & Fox are representing PGW. Witkes, the lead attorney, did not return a request for comment.
Related Information:
