Rhodia wins dismissal of public nuisance action in Indiana federal court
Clients Rhodia Inc.
On August 12, 2010, the United States District Court for the Northern District of Indiana ruled in favor of Jones Day client Rhodia, Inc. and other defendants, dismissing in its entirety an alleged public nuisance class action. The plaintiffs sought to impose on nearly all industries around East Chicago, Indiana a requirement to provide medical monitoring for resident children for the early detection of ailments allegedly caused by air pollution. The court held that the plaintiffs failed to allege a special injury as required under Indiana law.
In December 2008, USA Today published an article entitled "The Smokestack Effect: Toxic Air and America's Schools," in which the newspaper purported to use the EPA's Risk Screening Environmental Indicators (RSEI) model to (A) track the path of industrial emissions, (B) map the locations of nearly 128,000 schools to determine the levels of chemicals outside, and (C) identify potential problems ostensibly caused by those chemicals. Based on this report, the plaintiffs filed suit in March 2009 in state court in Lake County, Indiana on behalf of a putative class of school children and against Rhodia, Inc. and ten other companies.
Jones Day represented Rhodia, Inc. in the suit, which was removed to federal court, where it stayed following an unsuccessful bid by the plaintiffs to remand under the Class Action Fairness Act.
On January 15, 2010, the defendants filed a joint motion to dismiss the amended complaint, which the court granted on August 12, 2010. Essentially adopting the defendants' "special injury" argument, the court noted that the amended complaint did not allege that an injury had occurred or would occur to the plaintiffs or the proposed class, only that it might occur, and "that children can be more susceptible to the injury." The court further explained, "Children might be more susceptible or vulnerable to [potential illnesses and diseases allegedly attributable to the defendants' alleged emissions], but the injury alleged must be specific to them before they can bring an actionable claim for public nuisance, not merely a different degree of injury. . . . Without special injury, the plaintiffs can't bring a successful private action to abate or enjoin a public nuisance under Indiana law."
Morris, et al. v. Arcelormittal, USA, Inc., et al., Case No. 2:09-CV-108 RM (N.D. Ind., Aug. 12, 2010)