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10th Cir. Dismisses Class Toxic Tort Claims for Lack of Standing

By Jonathan R. Tung, Esq. on June 01, 2016 6:58 AM

Noting that a reasonable concern of injury does not satisfy the need to plead an actual or imminent injury, the Tenth Circuit affirmed a lower court dismissal of a class action suit against an industrial defendant. The ruling was with prejudice, too.

As any practitioner knows, causation must be alleged in order to support a cause of action. This seems to be something that the plaintiffs' lawyer forgot in this case.

Just What's Needed, Nothing More

Although the details of the case are complex, the suit arises out of plaintiff's incomplete complaint against defendants relating to improper disposal coal waste and wastewater produced in oil and gas drilling.

In the first submitted versions of their complaint, the plaintiffs included additional defendants and added further plaintiffs to the class, but made a fatal error all along the way: they failed to allege material causation between the defendant's conduct and the plaintiffs' injuries. The defendants moved to dismiss all grounds of negligence, strict liability, and negligence per se and were given relief with prejudice.

"Wrote Memorization"

The circuit affirmed the lower court's decision which seemed proper given that the lower court gave leave for the plaintiffs to amend their complaints at least twice. Under applicable Oklahoma law, a "reasonable concern" of possible future injuries is insufficient as a basis for stating a claim.

The court noted that the plaintiffs failed to allege any actual causation to a real injury in the present. "[Plaintiffs'] summary statement of health effects is nothing more than a rote recitation of general harms" and therefore failed to satisfy the injury element that was academic in all civil procedure and pleading practice classes.

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