Federal Court in Florida Refuses Class Certification in Arsenic-Treated Wood Case
The U.S. District Court for the Southern District of Florida in late February refused to certify a national class of homeowners in litigation over pressure-treated wood. The court stated that individual issues
predominate over common ones and the named class members do not typify the others. Since there are many uses for chromated copper arsenic (CCA), as well as environmental differences due to geography, large variability would exist if the group were to be certified as a class. One defense attorney stated that although there has been a lot of attention focused on pressure-treated wood, it is currently not generating a flood of individual lawsuits.
Four groups of individuals have sued three CCA manufacturers, a trade group, and retailer Home Depot. They allege that wood treated with CCA is unsafe, and that defendants failed to warn of its risks. This group proposed a national class of persons in March of 2002, whom, between 1981 and the present, built structures with treated wood. The class met the requirement of numerosity as well as commonality, but failed the typicality requirement. The court stated that “Scant factual similarities beyond the mere purchase of treated wood exist between plaintiffs and the presently unidentified body of class members.” In addition to the variability in uses and environment, the claims are further complicated because potentially hundreds of intervening parties (unconnected to this litigation) could have somehow handled the treated wood on its path from manufacture to ultimate user. Finally, difficulties in product identification would require detailed tracking of defendants’ practices leading to sale, and of plaintiffs’ purchasing choices. (Chemical Regulation Reporter, 3/31/03).
