           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                   2    Olden, et al. v. Lafarge Corp.              No. 02-1148
        ELECTRONIC CITATION: 2004 FED App. 0296P (6th Cir.)
                    File Name: 04a0296p.06                                               _________________
                                                                                              COUNSEL
UNITED STATES COURT OF APPEALS
                                                                     ARGUED: Lawrence T. Hoyle, Jr., HOYLE, FICKLER,
                  FOR THE SIXTH CIRCUIT                              HERSCHEL & MATHES, Philadelphia, Pennsylvania, for
                    _________________                                Appellant. Steven D. Liddle, MACUGA & LITTLE, Detroit,
                                                                     Michigan, for Appellees. ON BRIEF: Lawrence T. Hoyle,
 JULIE OLDEN, RICHARD              X                                 Jr., HOYLE, FICKLER, HERSCHEL & MATHES,
 HUNTER , WILBUR BLEAU, and -                                        Philadelphia, Pennsylvania, Arlene Fickler, HOYLE,
                                    -                                MORRIS & KERR, Philadelphia, Pennsylvania, for
 all others similarly situated,                                      Appellant. David R. Dubin, MACUGA & LITTLE, Detroit,
                                    -   No. 02-1148
            Plaintiffs-Appellees, -                                  Michigan, for Appellees.
                                     >
                                    ,                                                    _________________
              v.                    -
                                    -                                                        OPINION
 LAFARGE CORP .,                    -                                                    _________________
           Defendant-Appellant. -
                                    -                                   CUDAHY, Circuit Judge. Julie Olden, Richard Hunter and
                                   N                                 Wilbur Bleau represent a class of 3,600 persons who owned
        Appeal from the United States District Court                 single family residences in Alpena, Michigan, from April 19,
      for the Eastern District of Michigan at Bay City.              1996 to the present, and who allege personal and property
     No. 99-10176—David M. Lawson, District Judge.                   damage caused by toxic pollutants originating from a cement
                                                                     manufacturing plant belonging to the defendant Lafarge
                    Argued: March 12, 2004                           Corporation. They have brought a class action against
                                                                     Lafarge for current and future personal and real property
            Decided and Filed: September 7, 2004                     damages, diminution in property value and various
                                                                     detrimental health effects caused by the emission of toxic
Before: MARTIN, CLAY, and CUDAHY, Circuit Judges.*                   pollutants. The district court granted in part and denied in
                                                                     part Lafarge’s motion to dismiss and granted the plaintiffs’
                                                                     motion to certify the class action. In this appeal, we are
                                                                     called upon to decide whether the plaintiffs’ class action
                                                                     against the nation’s largest cement plant is solid. In
                                                                     answering this weighty question, we must also decide for the
                                                                     first time in this circuit whether Zahn v. Int’l Paper Co., 414
                                                                     U.S. 291, 301 (1973), has been overruled by 28 U.S.C.
    *
     The Honorable Richard D. Cudahy, Senior Circuit Judge of the    § 1367.
United States Court of Appeals for the Seventh Circuit, sitting by
designation.

                                1
No. 02-1148               Olden, et al. v. Lafarge Corp.       3    4     Olden, et al. v. Lafarge Corp.               No. 02-1148

                               I.                                     In addition to property damage caused by emissions, the
                                                                    plaintiffs claim to have been exposed to numerous
   In the northeast section of Alpena, Michigan, Lafarge’s          carcinogenic, mutagenic, and teratogenic toxic substances.
cement manufacturing complex, consisting of a limestone             Id. at 6 (Cplt. ¶¶ 24-25). Such toxins allegedly cause the
rock quarry and a cement manufacturing plant, covers a full         plaintiffs and their unborn children an increased risk of
square mile. See App. at 368-70, 431. It is the largest cement      cancer, impaired immunological function, birth defects and
manufacturing plant in the nation and has been owned and            developmental abnormalities, all of which are potentially life
operated by Lafarge since 1987. Id. at 787 (noting that “the        threatening and warrant continued medical monitoring. Id. at
Lafarge plant is the largest cement plant in North America”).       6-7 (Cplt. ¶¶ 26-27). Additionally, the plaintiffs claim agony,
The plaintiffs allege that throughout Lafarge’s ownership and       anxiety, distress, embarrassment, humiliation, mental anguish,
operation of the plant, it has continuously and systematically      suffering and other related nervous conditions, psychological
disregarded “proper procedure and maintenance of its                disorders and emotional consequences. Id. at 18 (Cplt. ¶ 47).
equipment that would prevent the emission of air
contaminants into the surrounding community.” Olden Br.                On April 19, 1999, the plaintiffs filed suit against Lafarge,
At 6. As a result, Alpena residents submitted numerous              alleging that the emissions trespassed on their property
complaints to the Michigan Department of Environmental              (Count II), created a nuisance (Count III) and arose from
Quality (MDEQ). Id. at 6-7. In 1994, the MDEQ and                   Lafarge’s negligence or gross negligence (Count IV). Id. at
Lafarge entered into a consent decree, in part, to remedy           15-21 (Cplt. ¶¶ 29-51). The plaintiffs seek compensatory
Lafarge’s emission of air contaminants. App. at 301-27.             damages for physical and mental illnesses caused by the
However, Lafarge violated the terms of the decree resulting         pollution and for the purchase of equipment to clean and
in the accrual of over $5.4 million in stipulated penalties as of   remove emitted substances from their property. The plaintiffs
May of 2003. Id. at 219-22. In 2000, the consent decree was         also seek exemplary and punitive damages, as well as an
amended, requiring Lafarge’s further compliance with                injunction requiring Lafarge to: (a) fund a medical monitoring
statutory air pollution requirements. Id. at 435-62.                program (Count I); (b) repair any damage to the plaintiffs’
                                                                    property; (c) improve the operation of the plant to eliminate
  The plaintiffs claim that in the process of making cement,        emissions; and (d) refrain from allowing emitted substances
the Lafarge plant produces hazardous toxic waste and creates        to be deposited on the plaintiffs’ property. Id. at 14, 19-21.
emissions with hazardous by-products. Id. at 12 (Cplt. ¶¶ 17-
18). The class has alleged that release of the air contaminants        On September 25, 2000, the plaintiffs moved to certify their
from the Lafarge plant interferes with the use and enjoyment        class action. Appx. at 39. On October 26, 2000, Lafarge filed
of their real and personal property and has caused or will          a combined motion to dismiss under Fed. R. Civ. P 12(b)(1)
cause diminution in the market value of this property. Id. at       (lack of subject matter jurisdiction); 12(b)(6) (failure to state
13 (Cplt. ¶¶ 20A, 21). For example, the cement dust emitted         a claim), and to deny class certification, arguing that the
by the plant has penetrated into the siding on houses, killed       plaintiffs did not meet the requirements of Fed. R. Civ. P.
rose bushes and left a white film over houses and vehicles in       23(a) (numerosity, typicality and adequacy of class
Alpena. Id. at 280, 282-83. Additionally, hydrochloric acid,        representation); 23(b)(2) (individualized money damages
a byproduct of the cement manufacturing process, has                overwhelm the requested injunctive relief); and 23(b)(3)
degraded roofs, piping, concrete and the aluminum windows           (individuality of interests, manageability of the action, etc.).
and doors of some homes. Id. at 289.                                Appx. 328-29. In an order dated October 24, 2001, the
No. 02-1148               Olden, et al. v. Lafarge Corp.       5    6     Olden, et al. v. Lafarge Corp.             No. 02-1148

district court granted in part and denied in part Lafarge’s         begin by addressing the issue of subject matter jurisdiction
motion to dismiss and granted the plaintiffs’ motion to certify     and will then address class certification.
the class action. See Olden v. Lafarge, 203 F.R.D. 254, 258
(E.D. Mich. 2001). With regard to subject matter jurisdiction,      1.   Subject Matter Jurisdiction
the district court held that the supplemental jurisdiction
statute confers subject matter jurisdiction over claims by            The plaintiffs argue that the court’s jurisdiction is proper
putative class members that do not entail $75,000 in                under the diversity statute, which grants district courts
controversy, but that form part of the same case or                 “original jurisdiction of all civil actions where the matter in
controversy as the claims by other class members which              controversy exceeds the sum or value of $75,000, exclusive
exceed the jurisdictional amount. With respect to Lafarge’s         of interest and costs” and is between diverse parties.
12(b)(6) motion, the court held that the plaintiffs failed to       28 U.S.C. § 1332(a). The issue raised in this case is whether
state a claim for trespass under Michigan law but that the          each individual class member in a diversity class action must
plaintiffs stated valid state law claims for nuisance and           meet the $75,000 amount in controversy requirement, or
negligence. Id. at 264-67, 271. Finally, the district court also    whether the plaintiffs may aggregate their damages. To say
held that class certification was appropriate under Fed. R.         that this question has been thoroughly examined is an
Civ. P. 23(b)(2) and (3). Id. at 271. On appeal, Lafarge            understatement. See Allapattah Servs., Inc. v. Exxon Corp.,
challenges only the district court’s decision with respect to       362 F.3d 739 (11th Cir. 2004) (Tjoflat, J., dissenting)
subject matter jurisdiction and class certification.                (compiling cases and articles). In fact, one of my law clerks
                                                                    was asked to answer this very question on a civil procedure
                               II.                                  exam in 1999. Unfortunately, however, he does not recall the
                                                                    answer, so we must review the issue de novo. See COB
                        DISCUSSION                                  Clearinghouse Corp. v. Aetna U.S. Healthcare, Inc., 362 F.3d
                                                                    877, 880 (6th Cir. 2004) (quoting Joelson v. United States, 86
   We have jurisdiction over this interlocutory appeal pursuant     F.3d 1413, 1416 (6th Cir. 1996) (“We review a district court's
to Federal Rule of Civil Procedure 23(f). According to Rule         decision to grant a motion to dismiss for lack of subject
23(f), “[a] Court of appeals may in its discretion permit an        matter jurisdiction de novo.”)).
appeal from an order of a district court granting or denying
class action certification . . . .” Fed. R. Civ. P. 23(f). The         If only the parties had asked us this question twenty years
question of subject matter jurisdiction is a prerequisite to        ago (or any time between 1973-1990), our discussion would
class certification and is therefore properly raised in this Rule   be brief because the Supreme Court had made the answer
23(f) appeal. See In re Lorazepam & Clorazepate Antitrust           plain. See Zahn v. Int’l Paper Co., 414 U.S. 291, 301 (1973).
Litig., 289 F.3d 98, 108 (D.C. Cir. 2002) (noting that, unlike      In Zahn, four named plaintiffs brought a class action on
the question of antitrust standing, the question of                 behalf of approximately 200 lakefront property owners and
constitutional standing would be properly raised in a Rule          lessees, seeking compensation for damages to their property
23(f) appeal). Moreover, we have an independent obligation          rights, allegedly caused by the defendant’s pollution of the
to ensure that subject matter jurisdiction exists. See United       lake. Id. at 291-92. Subject matter jurisdiction was asserted
States v. Hays, 515 U.S. 737, 742 (1995); FW/PBS, Inc. v.           based on diversity under 28 U.S.C. § 1332. Id. at 292.
City of Dallas, 493 U.S. 215, 230-31 (1990). Therefore, we          Although the named plaintiffs had claims exceeding the then
                                                                    applicable amount in controversy requirement, the district
No. 02-1148               Olden, et al. v. Lafarge Corp.        7   8      Olden, et al. v. Lafarge Corp.              No. 02-1148

court had found that not every absent member of the plaintiff           supplemental jurisdiction shall include claims that
class had a claim that satisfied the requisite amount. Id. The          involve the joinder or intervention of additional parties.
Supreme Court, consistent with earlier decisions, including
Snyder v. Harris, 394 U.S. 332 (1969), held that the claims of          (b) In any civil action of which the district courts have
multiple parties, when separate and distinct, cannot be                 original jurisdiction founded solely on section 1332 of
aggregated for purposes of meeting the jurisdictional amount.           this title, the district courts shall not have supplemental
                                                                        jurisdiction under subsection (a) over claims by plaintiffs
   The decision in Zahn was reaffirmed by the Supreme Court             against persons made parties under Rule 14, 19, 20, or 24
in Finley v. United States, 490 U.S. 545, 556 (1989). In                of the Federal Rules of Civil Procedure, or over claims
Finley, the petitioner brought suit in federal court after her          by persons proposed to be joined as plaintiffs under Rule
husband was killed when his plane struck electric                       19 of such rules, or seeking to intervene as plaintiffs
transmission lines. Id. at 546. She asserted a claim under the          under Rule 24 of such rules, when exercising
Federal Tort Claim Act (FTCA) against the Federal Aviation              supplemental jurisdiction over such claims would be
Administration (FAA) and state law claims against San Diego             inconsistent with the jurisdictional requirements of
Gas and Electric Power Company arguing that it had                      section 1332.
negligently placed and inadequately illuminated its power
lines. Id. The Supreme Court found no “pendent party”                   (c) The district courts may decline to exercise
jurisdiction over San Diego Gas. Id. at 556. It held that a             supplemental jurisdiction over a claim under subsection
grant of jurisdiction over claims involving particular parties          (a) if--
does not confer jurisdiction over additional claims by or
against different parties, even if all of the claims derive from        (1) the claim raises a novel or complex issue of State
a common nucleus of operative facts and consideration of the            law,
additional claims might promote judicial economy and
efficiency. Id.                                                         (2) the claim substantially predominates over the claim
                                                                        or claims over which the district court has original
   In 1990, Congress enacted the Judicial Improvements Act              jurisdiction,
(the Act), a statute clarifying the supplemental jurisdiction of
federal courts. See 28 U.S.C. § 1367. The statute provides,             (3) the district court has dismissed all claims over which
in relevant part, that:                                                 it has original jurisdiction, or

  (a) Except as provided in subsections (b) and (c) or as               (4) in exceptional circumstances, there are other
  expressly provided otherwise by Federal statute, in any               compelling reasons for declining jurisdiction.
  civil action of which the district courts have original
  jurisdiction, the district courts shall have supplemental         28 U.S.C. § 1367. Shortly after the passage of the Act, a
  jurisdiction over all other claims that are so related to         question arose as to whether Congress had overruled Zahn.
  claims in the action within such original jurisdiction that       The Fifth Circuit was the first to answer this question. See In
  they form part of the same case or controversy under              re Abbott Labs., 51 F.3d 524 (5th Cir. 1995). In short, the
  Article III of the United States Constitution. Such               Fifth Circuit held that Congress had overruled Zahn, noting
                                                                    that “Section 1367(a) grants district courts supplemental
No. 02-1148              Olden, et al. v. Lafarge Corp.      9    10   Olden, et al. v. Lafarge Corp.               No. 02-1148

jurisdiction over related claims generally, and § 1367(b)         unmoved by the legislative history. See In re Abbott Labs, 51
carves exceptions. Significantly, class actions [which are        F.3d at 529. It concluded that “[o]mitting the class action
governed by Rule 23] are not among the exceptions.” Id. at        from the exception may have been a clerical error . . . [b]ut
527. Because Rule 23 was not included in the list of              the statute is the sole repository of congressional intent where
exceptions, Congress had seemingly granted supplemental           the statute is clear and does not demand an absurd result.” Id.
jurisdiction over the claims of absent class members who          at 528-29.
independently could not meet the required amount in
controversy.                                                        The Seventh Circuit agreed with the Fifth, stating that
                                                                  “although, as Abbott Laboratories discussed, some legislative
  In so holding, the Fifth Circuit believed that Congress had     history suggests that the responsible committees did not
not subjectively intended to overrule Zahn. Id. at 528. In        expect § 1367 to upset Zahn, the text is not limited in this
fact, courts have almost universally noted that the legislative   way. When text and legislative history disagree, the text
history of § 1367 reveals that Congress did not intend to         controls.” Stromberg Metal Works, Inc. v. Press Mech., Inc.,
overrule Zahn. See, e.g., Gibson v. Chrysler Corp., 261 F.3d      77 F.3d 928, 931 (7th Cir. 1996) (citation omitted).
927, 939 (9th Cir. 2001) (“We agree with the Third, Eighth        Eventually, the Ninth, Fourth and most recently, the Eleventh
and Tenth Circuits to this degree: the legislative history        Circuit also concluded that Zahn had been overruled. See
provides a substantial basis to believe that the omission of      Allapattah, 333 F.3d at 1248; Gibson, 261 F.3d at 927;
claims by Rule 23 plaintiffs from subsection (b) of § 1367,       Rosmer v. Pfizer, Inc., 263 F.3d 110, 114 (4th Cir. 2001).
and the resulting overruling of Zahn, was an oversight.”).
The House Committee on the Judiciary, for instance,                 There has been anything but unanimity, however. The
considered the bill as “noncontroversial” and “relatively         Tenth Circuit, in Leonhardt v. Western Sugar Co., 160 F.3d
modest,” which would seem inconsistent with a statute             631, 641 (10th Cir. 1998), found the Act to be ambiguous and
intended to overrule a long-established precedent like Zahn.      thus consulted the legislative history, ultimately holding that
H. Rep. 101-734 (1990), reprinted in 1990 U.S.C.C.A.N.            Zahn was still good law. The Court in Leonhardt observed
6860, 6861. The legislative history suggests that Congress        that:
only intended the statute to overrule Finley and thus
“essentially restore the pre-Finley understandings of the           Section 1367(a) specifically addresses “any civil action
authorization for and limits on other forms of supplemental         of which the district courts have original jurisdiction.”
jurisdiction.” Id. at 6874. Perhaps most convincing is the          (Emphasis added.) It then provides for supplemental
fact that the legislative history specifically states that this     jurisdiction over transactionally related claims. Section
“section is not intended to affect the jurisdictional               1332 is what confers original jurisdiction over diversity
requirements of 28 U.S.C. § 1332 in diversity-only class            cases and it expressly requires that the “matter in
actions, as those requirements were interpreted prior to            controversy exceed[ ] the sum or value of $75,000.”
Finley.” Id. at 6875. A footnote to this passage cites Zahn as      While § 1332 does not expressly refer to class actions,
a pre-Finley case unaffected by the Act. Id. at n.17.               the Supreme Court has noted that periodic congressional
                                                                    amendment of the diversity statute to alter only the
   Nonetheless, because it found that the plain language of the     amount in controversy evidences congressional
statue was unambiguous and because no absurd result would           agreement with the Court’s holding that “matter in
follow from such an interpretation, the Fifth Circuit was           controversy” does “not encompass[ ] the aggregation of
No. 02-1148               Olden, et al. v. Lafarge Corp.     11    12       Olden, et al. v. Lafarge Corp.                      No. 02-1148

  separate and distinct claims.” Snyder, 394 U.S. at 339.          overruled.1 We note that the majority of courts have been
  Thus, Congress in § 1367(a) expressly excepted claims            reaching this same conclusion for almost ten years now and
  brought under § 1332 and its well-understood definition          Congress has yet to alter or amend § 1367 to correct them.
  of “matter in controversy.”                                      For almost ten years, courts have acknowledged that the text
                                                                   of § 1367 unambiguously overrules Zahn, while its legislative
Leonhardt, 160 F.3d at 640. The Eighth Circuit and the Third       history shows a clear intent to preserve Zahn. Rules of
Circuit adopted the reasoning of Leonhardt, finding that Zahn      statutory construction teach that generally a court cannot
had not been overruled. See Trimble v. Asarco, Inc., 232 F.3d      consider the legislative history of a statute in interpreting its
946, 962 (8th Cir. 2000); Meritcare Inc. v. St. Paul Mercury       meaning unless the statute is ambiguous. See In re Comshare
Ins. Co., 166 F.3d 214, 222 (3d Cir. 1999); see also Ortega v.
Star Kist Foods, Inc., No. 02-2530, 2004 WL 1205720 at *9
(1st Cir. June 2, 2004) (applying the reasoning of Leonhardt            1
                                                                         W e acknowledge that there m ight be a way to de cide this case
in the context of Rule 20 joinder). The Third Circuit went a       without stepping into the Zahn morass. However, we can do so only by
step further. It found that it could consult the legislative       way of a different jurisdictional morass. The plaintiffs argue that
history, even if the statute was not ambiguous, arguing that       jurisdiction is proper b ecause we can determ ine the amou nt in controversy
departure from the usual rule is appropriate in rare cases         by exam ining the expected cost to the defendant of complying with the
where the literal application of the statute would produce         injunction which the plaintiffs seek. Unfo rtunately, there is a circuit split
                                                                   as to whether a court may determine the amou nt in controversy from the
results “demonstrably at odds with the intentions of its           perspective of either party (the “either viewpoint rule”) or whether a court
drafters.” Meritcare Inc., 166 F.3d at 222 (citation omitted).     may only co nsider the plaintiff’s viewpoint. See, e.g., In re: Ford Motor
The Fourth and Ninth Circuits responded critically to the          Co./Citibank, 264 F.3d 952, 958 (9th Cir. 2001) (applying the “either
argument of Leonhardt and provided an explanation why              viewpoint rule”); In re Brand Name Prescription Drugs Antitrust Litig.,
Leonhardt’s alternative interpretation could not stand. See        123 F.3d 599, 60 9 (7th Cir. 1997) (same); Oklaho ma R etail Grocers Ass’n
                                                                   v. Wal-Mart Sto res, Inc ., 605 F.2d 1155, 1159 (10th Cir. 1979) (same);
Rosmer, 263 F.3d at 115-17; Gibson, 261 F.3d at 934-40; see        Williams v. Kleppe, 539 F.2d 803 , 804 n.1 (1st Cir. 19 76) (same ); Tatum
also Ortega, 2004 WL 1205720 at *19 (Torruella, J.,                v. Laird, 444 F.2d 947 , 951 (D.C . Cir. 19 71) (same ), rev’d on other
dissenting). The Seventh Circuit also dismissed such               grounds, 408 U.S. 1 (19 72); but see Ga rcia v. K och Oil Co. of Tex., Inc.,
alternative interpretations as “inventive.” Stromberg Metal        351 F.3d 636 , 640 n.4 (5th Cir. 2003 ) (app lying the “plaintiff’s
Works, Inc., 77 F.3d at 932 (citations omitted). The Supreme       viewp oint” rule); Ericsson GE Mo bile Com mu nications, In c. v. M otoro la
Court attempted to resolve the issue; however, it split 4-4, and   Communications & Elecs., Inc., 120 F.3d 216, 219-220 (11th Cir. 1997)
                                                                   (same); Massachusetts State Pharm. Ass’n v. Fed. Prescription Serv., Inc.,
its summary affirmance provided no insight. See Free v.            431 F.2d 1 30, 13 2 n.1 (8th C ir. 1970) (same). T his circuit has not yet
Abbott Labs, 529 U.S. 333 (2000) (per curiam).                     chosen an approach and we d ecline to weigh in on two majo r circuit sp lits
                                                                   in the sam e day. N onetheless, we do no te that many cases have been
  Until now, this court has yet to speak on the question.          suggested to indicate our adoption of, or preference for, one rule over the
Today, we join with the majority of circuits which have            other. See, e.g., Glenwood Light & Water Co. v. M utua l Ligh t, Hea t &
                                                                   Power Co ., 239 U.S. 121 (1915); Sherwood v. Microsoft Corp., 91 F.
considered the question and hold that Zahn has been                Supp. 2d 1196 (2000); Lodal, Inc. v. Ho me Ins. Co. of Ill., 156 F.3d 1230
                                                                   (6th Cir. 199 8); Sellers v. O’Conne ll, 701 F.2d 57 5 (6th Cir. 1983);
                                                                   Goldsm ith v. Sutherland, 426 F.2d 139 5 (6th Cir. 1970 ); Pa. R. Co. v .
                                                                   City of Girard, 210 F .2d 43 7 (6th Cir. 19 54). In non e of these cases,
                                                                   however, did the court either co nsider this issue or express a subtle
                                                                   preference one w ay or the other. T herefore, we leave this interesting
                                                                   question for another day.
No. 02-1148                Olden, et al. v. Lafarge Corp.      13    14    Olden, et al. v. Lafarge Corp.               No. 02-1148

Inc. Sec. Litig., 183 F.3d 542, 549 (6th Cir. 1999) (“When           Ortega, 2004 WL 1205720 at *16 (Torruella, J., dissenting)
interpreting a statute, we must begin with its plain language,       (noting that the Leonhardt interpretation “was never
and may resort to a review of congressional intent or                articulated by any Congressperson or their staff, by any judge
legislative history only when the language of the statute is not     or jurist, nor by any academics, or, most importantly by any
clear.”) (citing Consumer Prod. Safety Comm’n v. GTE                 of the very drafters of the statute from the time the statute was
Sylvania, Inc., 447 U.S. 102, 108 (1980)); Parker v.                 adopted in 1990, until such ‘intent’ was just espoused in
Metropolitan Life Ins. Co., 121 F.3d 1006, 1014 n.10 (6th Cir.       1998”). Interestingly, this alternative interpretation is not
1997) (“We have not referred to legislative history in our           consistent with the understanding of the drafters of § 1367,
discussion of this issue because, where the statutory meaning        who acknowledge that the failure to include Rule 23 was an
is clear, we do not resort to legislative history.”). This tension   oversight. See James E. Pfander, Supplemental Jurisdiction
has created a strong incentive to interpret what we believe to       and Section 1367: The Case for a Sympathetic Textualism,
be unambiguous as ambiguous, in order to open the door to            148 U. Pa. L. Rev. 109, 144 n.132 (1999) (“[L]ast-second
the legislative history. See, e.g., Crooks v. Harrelson, 282         concerns prompted the drafters to worry about their failure to
U.S. 55, 60 (1930) (“Courts have sometimes exercised a high          include a restriction for claims joined under Rule 23. They
degree of ingenuity in the effort to find justification for          caught the Rule 23 implications too late, however, to address
wrenching from the words of a statute a meaning which                [them] with a change to the statutory language and so relied
literally they did not bear in order to escape consequences          upon a curative reference in the legislative history instead.”);
thought to be absurd or to entail great hardship.”).                 Thomas D. Rowe, Jr., et al., Compounding Confusion or
                                                                     Creating Confusion About Supplemental Jurisdiction? A
  For instance, Judge Tjoflat, in his recent dissent from the        Reply to Professor Freer, 40 Emory L.J. 943, 960 n.90 (1991)
denial of rehearing en banc in Allapattah, considered                (one of the drafters of § 1367 notes that “[i]t would have been
Leonhardt’s alternative interpretation of § 1367 and noted           better had the statute dealt explicitly with this [Zahn]
that it is “arguably an absurd interpretation of the statute         problem, and the legislative history was an attempt to correct
because it would permit courts to exercise supplemental              the oversight”). Thus, it seems at least ironic that these courts
jurisdiction only in cases where it didn’t need to . . .”.           rely on an alternative interpretation of § 1367 which is
Allapattah, 362 F.3d at 770 n.28 (Tjoflat, J., dissenting). He       contradicted by its “legislative history,” in order to ultimately
also considered another alternative interpretation of § 1367         justify treating the legislative history as dispositive. While,
proposed in Snider v. Stimson Lumber Co., 914 F. Supp. 388,          technically, this may be a proper application of the rules of
391 (E.D. Cal. 1996). Of the Snider interpretation, Judge            statutory interpretation, one has to question its internal logic
Tjoflat noted that he “[does] not agree entirely with [its]          and whether there is ultimately any benefit from following
reasoning.” Allapattah, 362 F.3d at 771. Nonetheless, based          such an approach.
on Leonhardt’s “arguably . . . absurd interpretation” and
Snider’s interpretation with which Judge Tjoflat admits                We believe that the Leonhardt interpretation fails, in part,
disagreeing, he found § 1367 “sufficiently ambiguous as to           for the reasons enunciated in Gibson and Rosmer. See
warrant resort to the legislative history.” Id.                      Rosmer, 263 F.3d at 115-17; Gibson, 261 F.3d at 934-40; see
                                                                     also Ortega, 2004 WL 1205720 at *19 (Torruella, J.,
  Courts such as the Tenth Circuit in Leonhardt have strained        dissenting). These authorities go through a detailed account
to develop an alternative interpretation which they argue            and rebuttal of the Leonhardt interpretation and it is
proves that the statute is at least ambiguous. See, e.g.,            unnecessary to repeat that discussion here. Moreover,
No. 02-1148                     Olden, et al. v. Lafarge Corp.             15     16     Olden, et al. v. Lafarge Corp.                          No. 02-1148

although it is no doubt clever, we simply do not believe the                      structure, it defies logic to suggest that the inclusive section
Leonhardt interpretation to be a natural reading of this statute.                 of the statute, containing the sweeping grant of supplemental
See United Food and Commercial Workers Union Local 751                            jurisdiction, also contains a completely unspoken, yet
v. Brown Group, Inc., 517 U.S. 544, 550 (1996) (“[T]he more                       critically important, exclusion. This is particularly true where
natural reading of the statute’s text, which would give effect                    there is no doubt that the unspoken exclusion would fit
to all of its provisions, always prevails over a mere suggestion                  naturally into the express list of exclusions in the second part.
to disregard or ignore duly enacted law as legislative                            Congress was not using 28 U.S.C. § 1367 as an opportunity
oversight.”); Business Guides, Inc. v. Chromatic                                  to play “Hide The Ball,” “Where’s Waldo?” or “Find The
Communications Enters., Inc., 498 U.S. 533, 547 (1991)                            Hidden Exclusion.”          To argue that the alternative
(“[T]his Court will not reject the natural reading of a rule or                   interpretation is viable enough to make this statute ambiguous
statute in favor of a less plausible reading, even one that                       only begs the question of the meaning of the word
seems to us to achieve a better result.”). Were there no                          “ambiguity.” Moskal v. United States, 498 U.S. 103, 108
relevant legislative history in this case, we do not believe that                 (1990) (discussing “the crucial question—almost invariably
any court would have given serious consideration to the                           present—of how much ambiguousness constitutes . . .
Leonhardt interpretation, because no one would doubt that the                     ambiguity”) (citations omitted). If we really wanted, it is
statute means what it says.                                                       likely that we could find just about any statute to be
                                                                                  ambiguous. Language, as compared to mathematics, is
  It is the structure of this statute which makes its meaning                     inherently imprecise. See Northeast Women’s Ctr., Inc. v.
unambiguous. The first part of the statute (§ 1367(a))                            McMonagle, 939 F.2d 57, 64 (3d Cir. 1991); Vitello v. United
contains a sweeping grant of supplemental jurisdiction giving                     States, 425 F.2d 416, 425 (9th Cir. 1970) (Ely J., dissenting).
the courts supplemental jurisdiction over all claims not                          This does not mean that we should abandon our traditional
excluded by the second part (§ 1367(b)). The second part of                       role of interpreting statutes based on the language which
the statute contains all of the exclusions.2 Given this                           Congress chose to include in the text itself.


    2
      Judge Tjoflat argues that “[t]here is nothing in the text of the statute,   the cases cited by Judge Tjoflat as suggesting that expressio unius should
however, which indicates that the [exclusions] mentioned in § 1367(b)             not be applied to contradict legislative history, but instead that it sho uld
were meant to be an exclusive list.” Allapattah, 362 F.3d at 772. He              only be applied where its application is natural and the inference drawn,
argues that to reach such a conclusion, one must implicitly apply the             a fair one. See Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003)
cannon of statutory construction known as expressio u nius est exclusio           (“As we have held repeatedly, the canon expressio u nius est exclusio
alterius and that such application is inapp ropriate here, because it would       alterius does not ap ply to ev ery statutory listing or group ing; it has force
override clear C ongressional intent. Id. (citation omitted). W e disagree,       only when the items expressed are members of an ‘associated group or
however, with Judge T joflat’s first prem ise. W e believe that the language      series,’ . . . .”); Neuberger v. Comm’r of I.R.S., 311 U .S. 83, 88 (1940),
which begins § 13 67(a): “Except as provided in subsections (b) and (c)           citing United States v. Barnes, 222 U.S. 513 (1912). We have no doubt
. . . the district cou rts shall have supplem ental jurisdiction . . .”           that Rule 23 fits in naturally with the other rules listed in § 1367(b). All
demonstrates that Congress intended the exclusions mentioned in those             the rules listed in § 13 67(b), like R ule 23 , involve different ways of
subsections to be exclusive. Th erefore, we d o not believe th at we are          getting additional claims before the court, such as joinder, impleader and
applying expressio unius in this case so much as reading the plain                intervention. W e believe that R ule 23 is similar enough to 14, 19, 20 and
langua ge of the statute.                                                         24 fo r purp oses o f this statute that, if Congress did no t want us to read it
                                                                                  as excluding Rule 23 , it needed to make that intent more explicit in the
    Even if we were required to rely on expressio unius, we do not read           statute.
No. 02-1148               Olden, et al. v. Lafarge Corp.     17    18       Olden, et al. v. Lafarge Corp.                     No. 02-1148

   Nor are we persuaded by the now fashionable argument that          As noted supra, some courts have found a basis to consider
because a number of brilliant minds have found this statute to     and ultimately adopt the legislative history of § 1367, without
be ambiguous, it is by definition so. See, e.g., Leonhardt, 160    the need of finding the statute ambiguous. See, e.g.,
F.3d at 640 (“[I]t is difficult to argue persuasively that the     Meritcare Inc., 166 F.3d at 222. The Third Circuit, for
statute is truly unambiguous when two circuit courts of appeal     instance, has found that resorting to the legislative history was
have reached the opposite conclusion from us, when a               appropriate in answering the § 1367 question because this is
majority of district courts are in agreement with us (although     one of those “rare cases [in which] the literal application of a
not all for the same reasons) and when commentators are            statute will produce a result demonstrably at odds with the
divided.”). The Supreme Court has regularly found statutes         intentions of its drafters.” Id. (quoting United States v.
to be unambiguous over the dissenting views of Justices who        Sherman, 150 F.3d 306, 313 (3d Cir. 1998) (internal
found the contrary. See, e.g., United States v. Labonte, 520       quotation marks removed, alterations in original); accord
U.S. 751, 763 (1997) (Breyer, J. dissenting, joined by Justices    United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242
Stevens and Ginsburg) (“The majority finds . . . that the three    (1989).3 Perhaps the primary rule of statutory interpretation,
statutory words are unambiguous; that they are not                 however, is that a court will not look beyond the statutory text
susceptible to the Commission’s interpretation; and that the       if the text is unambiguous. See BedRoc Ltd., LLC v. United
only possible interpretation is one that does not except           States, 124 S.Ct. 1587, 1593 (2004). Of course, if the
recidivist enhancement provisions. In my view, however, the        statutory text and legislative history are consistent, this
words ‘maximum term authorized’ are ambiguous.”); Dole v.          primary rule is unnecessary because the result will be the
United Steelworkers of Am., 494 U.S. 26 (1990) (White, J.,         same regardless of whether a court follows the rule or not.
dissenting, joined by Chief Justice Rehnquist) (finding the        Therefore, the primary rule only matters where there is a
statute under consideration to be ambiguous); United States        contradiction between the statutory text and the legislative
v. Yermian, 468 U.S. 63 (1984) (Rehnquist, J., dissenting,         history. The “exception” discussed in Meritcare has the
joined by Brennan, Stevens and O’Connor) (same); Hoffman           potential to turn the primary rule on its head because every
v. Blaski, 363 U.S. 335 (1960) (Frankfurter, J., dissenting,       time there is an actual conflict between the statutory language
joined by Harlan and Brennan) (noting that there have been         and the legislative history, the legislative history may prevail
“severe differences” with respect to how twenty-seven district     over the text of the statute.
courts have interpreted the supposedly unambiguous statute).
“[W]e cannot allow the fact that other circuits have called a
statute ambiguous to negate this circuit’s duty to interpret the
text of the enactment.” Rosmer, 263 F.3d at 118; see also               3
Moskal, 498 U.S. at 108 (noting that under the alternative                Of course it is somewhat paradoxical that a court could find that the
rule, “one court’s unduly narrow reading of a . . . statute        literal application of an unambiguous statute wo uld produce a result
                                                                   demo nstrably at odds with the intent of its drafters given that the best
would become binding on all other courts, including [the           evidence of the inten t of the drafters is supposed to be the statute itself.
Supreme Court]”); Allapattah Servs., Inc., 333 F.3d at 1254        See West Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 98-99 (1991)
(“The mere existence of a split among the circuits as to the       (“The best evidenc e of [C ongress’] purpose is the statutory text adopted
proper interpretation of § 1367 does not relieve us of our         by both Houses of Co ngress and su bmitted to the President. Where that
obligation to interpret the statute independently.”).              contains a phrase that is unambiguous . . . we do not perm it it to be
                                                                   expanded or contracted by the statements of individual legislators or
                                                                   committees during the course of the enactment process.”) (citation
                                                                   omitted).
No. 02-1148               Olden, et al. v. Lafarge Corp.      19    20    Olden, et al. v. Lafarge Corp.               No. 02-1148

   For this reason, we believe that this exception must be             Because we find that 18 U.S.C. § 1367 achieves its
construed narrowly and only applied where a literal                 intended purpose without any absurd result and because we
application of unambiguous statutory language would have            find that its statutory language is unambiguous, we hold today
absurd results or “would thwart the obvious purpose of the          that Zahn has been overruled. Therefore, the class may
statute.” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564,       aggregate damages and subject matter jurisdiction is proper.
571 (1982) (citations omitted); Bob Jones Univ. v. United           Although we are confident about our conclusion on this
States, 461 U.S. 574, 586 (1983) (“It is a well-established         matter, we are comforted by the knowledge that if it turns out
canon of statutory construction that a court should go beyond       we are wrong, we will be in good company. We turn now to
the literal language of a statute if reliance on that language      the other issues surrounding class certification.
would defeat the plain purpose of the statute . . . .”). This is
not such a case. Here, the statute was intended to overrule         2.   Class certification
Finley, not to codify Zahn. No court disputes the fact that the
statute fulfills its purpose. This is merely a case in which           As discussed supra, the district court conditionally certified
Congress may have painted with too broad a brush. We will           a class action under Federal Rules of Civil Procedure 23(b)(2)
not ignore the plain, unambiguous language of a statute where       and (3) of “all owners of single family residences in the City
it achieves its intended purpose without any absurd result but      of Alpena whose persons or property was damaged by toxic
simply has additional unintended consequences. See Brogan           pollutants and contaminants which originated from the
v. United States, 522 U.S. 398, 403 (1998) (“[I]t is not, and       LaFarge cement manufacturing facility located in Alpena,
cannot be, our practice to restrict the unqualified language of     Michigan.” Lafarge, 203 F.R.D. at 271. The defendant
a statute to the particular evil that Congress was trying to        appeals this conditional grant of class certification.
remedy—even assuming that it is possible to identify that evil
from something other than the text of the statute itself.”);           A class certification order is reviewed for an abuse of
accord United States v. Wade, 266 F.3d 574, 581 (6th Cir.           discretion. See Stout v. J.D. Byrider, 228 F.3d 709, 716 (6th
2001); see also Thompson v. Goetzmann, 337 F.3d 489, 493            Cir. 2000). “The district court’s decision certifying the class
(5th Cir. 2003) (“[W]e reiterate that the courts are not in the     is subject to a ‘very limited’ review and will be reversed ‘only
business of amending legislation. If the plain language of the      upon a strong showing that the district court’s decision was a
MSP statute produces the legislatively unintended result            clear abuse of discretion.’” Armstrong v. Davis, 275 F.3d 849,
claimed by the government, the government’s complaint               867 (9th Cir. 2001) (citations omitted) (emphasis added).
should be addressed to Congress, not to the courts, for such        “Abuse of discretion is defined as ‘a definite and firm
revision as Congress may deem warranted, if any.”); United          conviction that the trial court committed a clear error of
States v. Arnold, 126 F.3d 82, 86 (2d Cir. 1997)                    judgment.’” Coleman v. Gen. Motors Acceptance Corp., 296
(“Notwithstanding that such a result was unintended, the            F.3d 443, 446 (6th Cir. 2002) (quoting Bowling v. Pfizer, Inc.,
Court declines any invitation to redraft the statute—that is a      102 F.3d 777, 780 (6th Cir. 1996)).
task better left to the legislature.”); Leila G. Newhall Unitrust
v. Comm’r of I.R.S., 105 F.3d 482, 487 (9th Cir. 1997) (“In           In order to certify any Rule 23 class action: (1) the class
any event, if the statute has unintended consequences, it is for    must be so numerous that joinder of all members is
Congress, not the courts, to take appropriate measures to avert     impracticable, (2) there must be questions of law or fact
them.”); In re: Appletree Mkts., Inc., 19 F.3d 969, 974-75 (5th     common to the class, (3) the claims or defenses of the
Cir. 1994).                                                         representative parties must be typical of the claims or
No. 02-1148               Olden, et al. v. Lafarge Corp.      21    22       Olden, et al. v. Lafarge Corp.                     No. 02-1148

defenses of the class, and (4) the representative parties must      an abuse of discretion because individualized money damages
fairly and adequately protect the interests of the class. Fed. R.   overwhelm the plaintiffs’ request for injunctive relief.
Civ. P. 23(a). The defendant seemingly does not dispute on
appeal that these prerequisites have adequately been                  A. Rule 23(b)(3) certification
established.
                                                                      The thrust of the defendant’s argument seems to be that
   In this case, the district court certified a class under both    common questions do not predominate. According to the
Rule 23(b)(2) and Rule 23(b)(3). Each of these classes carries      defendant, individual issues related to establishing causation
its own prerequisites as well. A Rule 23(b)(2) class action is      will overwhelm the case because toxins: (a) “originated from
only appropriate where                                              disparate sources within the one-square mile Lafarge facility
                                                                    and perhaps other industrial sources;” (b) were disbursed to
  the party opposing the class has acted or refused to act on       properties in varying concentrations; (c) allegedly caused a
  grounds generally applicable to the class, thereby making         variety of personal injuries; and (d) allegedly caused widely
  appropriate final injunctive relief or corresponding              varying property damages. Lafarge Br. at 32-33 (emphasis
  declaratory relief with respect to the class as a whole.          added).
Fed. R. Civ. P. 23(b)(2). A Rule 23(b)(3) class action is              With regard to the first issue, the fact that toxins may have
appropriate where:                                                  originated from disparate sources within Lafarge’s facility is
                                                                    of little relevance since Lafarge’s liability presumably would
  [T]he court finds that the questions of law or fact               not vary depending upon where within its facility toxins
  common to the members of the class predominate over               originated. With regard to these “other industrial sources”
  any questions affecting only individual members, and              (presumably the Abiti Price Plant and Fletcher Paper Co.), the
  that a class action is superior to other available methods        defendant does not allege that the toxins from these sources
  for the fair and efficient adjudication of the controversy.       are indistinguishable from the toxins from Lafarge’s plant.4
  The matters pertinent to the findings include: (A) the            Further, the defendant does not allege that these other sources
  interest of members of the class in individually                  produce significant amount of toxins relative to Lafarge,
  controlling the prosecution or defense of separate                which admittedly is the nation’s largest cement plant. Appx.
  actions; (B) the extent and nature of any litigation              at 787. Of course, if it is determined that the defendant does
  concerning the controversy already commenced by or                not, on its own, emit enough pollutants to establish liability
  against members of the class; (C) the desirability or             (either because the plaintiffs cannot establish negligence,
  undesirability of concentrating the litigation of the claims      causation or “significant harm” in the case of the plaintiffs’
  in the particular forum; (D) the difficulties likely to be        nuisance claim), the defendant will prevail. Moreover,
  encountered in the management of a class action.                  damages can be reduced to reflect the proportion of the class’
                                                                    injury not caused by the defendant.
Fed. R. Civ. P. 23(b)(3). The defendant argues that the
certification of a Rule 23(b)(3) class was an abuse of
discretion because common questions do not predominate and               4
                                                                           It appea rs that these “other sources” are defendants in another class
other methods for adjudication would be superior, and               action in front of the same district court judge. Therefore, if issues of
similarly, that certification of a rule 23(b)(2) class action was   potential confusion do arise, they sho uld be immediately apparent to the
                                                                    district co urt, mitigating any co ncern the defendant might have.
No. 02-1148                    Olden, et al. v. Lafarge Corp.            23     24       Olden, et al. v. Lafarge Corp.                     No. 02-1148

   With regard to the remaining issues, they may suggest that                      As the district court properly noted, it can bifurcate the
individual damage determinations might be necessary, but the                    issue of liability from the issue of damages, and if liability is
plaintiffs have raised common allegations which would likely                    found, the issue of damages can be decided by a special
allow the court to determine liability (including causation) for                master or by another method.6 Fed. R. Civ. P. 23(c)(4)(A);
the class as a whole. For instance, although some named                         see also Simon v. Philip Morris Inc., 200 F.R.D. 21, 30
plaintiffs admittedly describe a variety of minor personal                      (E.D.N.Y. 2001) (“By bifurcating issues like general liability
medical issues (wheezing, “very bad breathing things,”                          or general causation and damages, a court can await the
nausea, headaches, etc.) which might require individualized                     outcome of a prior liability trial before deciding how to
damage determinations, the thrust of the plaintiffs’ personal                   provide relief to the individual class members.”). Therefore,
injury complaint appears to be related to the general increased                 the aforementioned minor complaints can be dealt with in the
risk of the class suffering medical problems in the future. See                 damages phase if necessary, and it is likely premature to
Appx. 13-15, 18 (Cplt. at ¶¶ 22-28, 48). Whether the                            address these issues at this point.
defendant’s negligence caused some increased health risk and
even whether it tended to cause the class minor medical issues                    The defendant cites to a number of superficially similar
can likely be determined for the entire class. Similarly,                       cases in which district courts have denied class certification.
although some named plaintiffs present a number of minor
examples of specific property damage (roof damage, dead
rose bushes, damaged window pane, peeling stain on deck,                        715,720 (M ich. 19 92) (“Th ere are cou ntless ways to interfere with the use
rusting of automobile), these examples seem to be no more                       and enjoyment of land including . . . [the] threat of future injury that is a
than illustrative of the common argument that the class’s                       present mena ce and interference with enjoyment.”). O nce (and if)
                                                                                nuisance liability has been established, the defendant can contest the
properties are regularly covered in cement dust, causing                        degree of harm in the damages phase. Of course, if the nuisance claim
minor property damage and a predictable reduction of                            becomes unmanageable to adjudicate as a class action, the district court
property value and enjoyment of the property. Whether the                       can decertify the class with respect to that claim. See Fed. R. Civ. P.
defendant’s negligence generally caused minor property                          23(c)(1)(C) (“An order under Rule 23(c)(1) may be altered or amended
damage and cement dust can likely be determined for the                         before final jud gment.”).
entire class as well.5                                                               6
                                                                                      The defendant is conc erned that bifurcation “m ay dep rive [it] of its
                                                                                Seve nth Amendment right to a jury trial.” Lafarge Br. at 44. Indeed it
    5
                                                                                might. See, e.g., In re Rh one -Po ulenc Ro rer, Inc ., 51 F.3d 1293, 1303
      The Defendant argues that the plaintiffs’ nuisance cause of action        (7th Cir. 1995) (noting that the Seventh Amendment requires that, when
requires individualized proof because one must show “significant harm”          a court bifurcates a case, it must “d ivide issues between separate trials in
resulting in an interference with the use of and enjoyment of pro perty.        such a way that the same issue is [not] reexamined by different juries.”).
However, if the class can show that their properties were freque ntly           On the other hand, if done properly, bifurcation will not raise any
covered by cement dust, this would likely be enough to establish                constitutional issues.     W e are confident that the defendant will
“significant harm.” See, e.g., Adam s v. Clev eland-Cliffs Iron C o., 237       app ropriately raise any concerns with the district court, if the court
Mich. App x. 51, 70, 6 02 N .W .2d 2 15, 2 23 (Mich. Ct. App. 1999) (“If the    eventually proposes to bifurcate the case in such a mann er as to
quantity and character of the dust are such as to disturb the ambiance in       potentially jeop ardize any of its rights. The defendant seems particularly
ways that interfere substantially with the plaintiff’s use and enjoyment of     concerned about the Seventh Amendment implications of using a special
the land, then recovery in nuisance is possible.”). Further, if the class can   master to determine individual damages. Lafarge Br. at 44. We suspect
show that they are at an increased risk of significant future medical           that the plaintiffs will be more than willing to have a jury make that
prob lems, this too would likely constitute “significant harm.” See, e.g.,      determination if that is truly the de fendant’s preference , however, the
Adkins v. Thomas Solvent Co., 440 Mich. 293, 303-304, 487 N.W.2d                parties can b ridge that gap when it appe ars.
No. 02-1148                    Olden, et al. v. Lafarge Corp.           25     26    Olden, et al. v. Lafarge Corp.               No. 02-1148

We believe these cases are distinguishable, however. The                         Further, the court in Reilly declined to certify the class
defendant, for instance, relies heavily on Ramik v. Darling                    because it found that individual issues predominated. In large
International Incorporated, No. 98-40276 (E.D. Mich. 1999)                     part, this was because the plaintiffs’ major complaint was lead
(attached to Lafarge Br. at Appx. 2). However, in Ramik, it                    poisoning. The court noted the existence of evidence in the
appears the class’s primary complaint was noxious odors,                       record suggesting that the plaintiffs may have been exposed
which is quite subjective. Ramik, No, 98-40276 at 13 (“With                    to lead, not just through the defendant’s plant or other
respect to damages, defendant points out that the majority of                  facilities, but through lead based paint and lead-based
money damages claimed by plaintiffs relates to subjective                      gasoline, both of which were in common use during the
complaints . . .”). The court in Ramik noted that whether the                  relevant time period. See id. at 604-06. Thus, in order to
plaintiff will be able to establish liability “will require                    determine causation in Reilly, the fact finder would
substantial individual proofs related to the character of the                  presumably have had to consider what kind of paint was in
odors at each individual residence.” Id. at 15. Unlike Ramik,                  each class member’s home and the condition of that paint
in the present case, the plaintiffs’ complaints are more                       throughout the relevant period, as well as his or her driving
objective and experts will likely be able to estimate how                      and gasoline usage habits. In the present case, it is possible
much cement dust has fallen over each residence and the                        that other facilities caused some of the pollution, but this does
potential health effects associated with such quantity of dust.                not suggest the same level of individual determination
                                                                               required in Reilly. We find the other cases cited by the
   Similarly, we find Reilly v. Gould Incorporated, 965 F.                     defendant to be distinguishable for similar reasons.
Supp. 588 (M.D. Pa. 1997) to be distinguishable. In that case,                 Therefore, we believe that the district court did not abuse its
the defendant’s plant had been closed for more than ten years                  discretion by conditionally certifying a Rule 23(b)(3) class.
before the plaintiffs brought suit. Id. at 593-94. Therefore,
the plaintiffs were not seeking any common injunctive relief                     B. Rule 23(b)(2) certification
(other than a constructive trust for medical monitoring which,
at best, is quasi-equitable in nature).7 Id. In contrast, in the                  The defendant argues that Rule 23(b)(2) certification is
present case, the defendant’s plant is still operating and the                 inappropriate because individualized money damages
plaintiffs are asking the court to enter a permanent injunction                overwhelm the plaintiffs’ request for injunctive relief. See
enjoining the defendant from polluting—a conflict                              Lafarge Br. at 45. As we have suggested, we believe that the
particularly suitable for class action adjudication.                           defendant is overestimating the potential difficulty in
                                                                               establishing a formula for money damages for the class and
                                                                               is underestimating the importance of the injunctive relief. In
                                                                               any case, we do not believe that the defendant’s argument
                                                                               makes much sense given that the district court has granted
    7                                                                          certification under both 23(b)(2) and 23(b)(3).
      A number of courts have treated requests for medical monitoring as
a form of damage relief. See, e.g., Zin ser v. Accufix Research Inst., Inc.,
253 F.3d 1180 (9th Cir. 200 1); Dham er v. Bristol-Myers Squibb Co., 183
                                                                                 Disputes over whether [an] action is primarily for
F.R.D. 520 (N.D. Ill. 199 8); Cook v. Ro ckwell Int’l Corp ., 181 F.R.D. 473     injunctive . . . relief rather than a monetary award neither
(D.C. Colo. 1998); O’Conner v. Boeing N. Am., Inc., 180 F.R.D. 359               promote the disposition of the case on the merits nor
(C.D. Cal. 1997 ); Arch v. A m. Tobacco Co., 175 F.R.D. 469 (E.D. Pa.            represent a useful expenditure of energy. Therefore, they
1997); Ha rding v. Tamb rands, Inc., 165 F.R.D . 623 (D. K an. 1996);            should be avoided. If the Rule 23(a) prerequisites have
Thomas v. FAG Bearin gs Co rp., 846 F. Sup p. 14 00 (W .D. M o. 19 94).
No. 02-1148               Olden, et al. v. Lafarge Corp.     27    28       Olden, et al. v. Lafarge Corp.                   No. 02-1148

  been met and injunctive or declaratory relief has been           267.8 The defendant argues that this case is similar because
  requested, the action usually should be allowed to               emissions from its plant are regulated by the Clean Air Act,
  proceed. Those aspects of the case not falling within            42 U.S.C. § 7401, and Michigan’s Natural Resources and
  Rule 23(b)(2) should be treated as incidental. Indeed,           Environmental Protection Act, Mich. Comp. Laws § 324.101.
  quite commonly they will fall within Rule 23(b)(1) or            Id. However, unlike the NTMVSA, as interpreted by Walsh,
  Rule 23(b)(3) and may be heard on a class basis under            both of the Acts here expressly contemplate private
  one of those subdivisions. Even when this is not the             enforcement suits and the type of injunctive relief sought by
  case, the action should not be dismissed.                        the plaintiffs. See 42 U.S.C. § 7604(d) (providing for citizen
                                                                   suits and injunctive relief); Mich. Comp. Laws. § 324.1707
7A Charles Alan Wright, Arthur R. Miller, et al., Federal          (same).9
Practice and Procedure, 2d. § 1775 (emphasis added); see
also 5 Moore’s Federal Practice, § 23.41[6][d] (Matthew              Finally, the defendant is concerned that we might become
Bender 3d. ed.). Therefore, Coleman, upon which the                excessively entangled with other sources of law because of a
defendant relies, is distinguishable because in Coleman the        second amended consent judgement it entered into with the
district court certified the class only under 23(b)(2), not also   State of Michigan, on September 28, 2000. Appx. at 435.
under 23(b)(3). See 296 F.3d at 447. Moreover, injunctive          We do not share the defendant’s concern. See, e.g., United
relief was not as critical in Coleman because the plaintiffs       States v. Phillip Morris USA, No. CIV.A.99-2496(GK), 2004
there, who claimed they were subject to higher finance             WL 1045766 (D.D.C. May 6, 2004) (finding the existence of
charges because they were black, were not currently being          a master settlement agreement did not preclude action). The
irreparably harmed in the same way the plaintiffs allege here.     plaintiffs in this case were not parties to the consent
Id.                                                                judgment, and the agreement itself states that it “does not
                                                                   limit or affect the rights of Lafarge or the State of Michigan
  Finally, the defendant argues that the requested injunctive      against third parties.” Appx. at 457. Nothing in the
relief would cause the court to become unnecessarily and           agreement purports to limit the rights of third parties against
improperly entangled with the ongoing administrative               Lafarge either. To the contrary, the agreement states that it
regulation of the plant. Lafarge Br. at 48. The defendant          “in no way affects Lafarge’s responsibility to comply with
relies on Walsh v. Ford Motor Co., 130 F.R.D. 260, 266-67          any other applicable state, federal or local laws or regulations
(D.D.C. 1990), and several other cases in which district courts
declined to certify Rule 23(b)(2) class actions where the
plaintiffs were seeking to force automobile recalls. The court          8
in Walsh, declined to certify the class, in part, because the           It appears that, at least at the time Walsh was decided, no court had
                                                                   ever ordered a recall of an allegedly defective vehicle. See Chin v.
court wanted to “avoid entanglement with a regulatory              Chrysler Corp., 182 F.R.D. 448, 464 n.6 (D.N.J. 1998), citing In re Gen.
scheme [the National Traffic and Motor Vehicle Safety Act          Motors Fuel Tank Litig., 55 F .3d 7 68, 8 11 n. 30 (3 d Cir. 199 5).
of 1966 (NTMVSA)] designed and intended to empower
principally the Department of Transportation, rather than the           9
                                                                         Walsh is further distinguisha ble for the reasons d iscussed in
courts, to order and oversee motor vehicle recalls.” Id. at        Rodriguez v. Carlson, 166 F.R.D . 465, 476 (E.D . Wash. 199 6) (noting
                                                                   that in Walsh, the court was “faced with the ad ministratio n of a
                                                                   nationwide class involving millions” and that the types of violations
                                                                   alleged by the plaintiffs in that case could be fully rem edied solely
                                                                   through the award of monetary damages).
No. 02-1148                   Olden, et al. v. Lafarge Corp.          29     30   Olden, et al. v. Lafarge Corp.         No. 02-1148

[sic], or with any order of this or any other court, including               matter jurisdiction to be proper and AFFIRM the district
without limitation, any amendments [sic] to Part 55 of Act                   court’s grant of class certification.
451, the federal Clean Air Act (“CAA”), 42 USC 7401, et
seq, or their rules and regulations, or to the State
Implementation Plan.” Id. at 458. Even if the agreement had
purported to limit the rights of third parties, it is unlikely that
such a limitation would be upheld, at least absent an
allegation or argument that the state was acting in its role as
parens patriae. See Lawyer v. Dep’t. of Justice, 521 U.S.
567, 579 (1997) (“[A] settlement agreement subject to court
approval in a nonclass action may not impose duties or
obligations on an unconsenting party or ‘dispose’ of his
claims.”) (citation omitted); Firefighters v. City of Cleveland,
478 U.S. 501, 529 (1986) (“[A] court may not enter a consent
decree that imposes obligations on a party that did not consent
to the decree.”) (citations omitted). Of course, if the
defendant believed that the class’s suit was estopped by the
consent judgment, it could have raised this argument in its
motion to dismiss or in its answer, as an affirmative defense.
See Blakely v. United States, 276 F.3d 853, 866-68 (6th Cir.
2002). The defendant chose not to do so, however. See
Appx. at 30-31, 332-68.10 Therefore, we need not discuss the
issue further.
                                   III.
                           CONCLUSION
  In sum, we find that the district court did not abuse its
discretion in certifying this class and we are confident that the
district court will take appropriate measures if, at any time, it
appears that the class threatens to become unmanageable.
Therefore, for the reasons discussed supra, we find subject

    10
      The defendant did argue that the existence of the consent judgment
suggested that the district court should abstain from hearing the case
under the doctrine of Younger. App x. at 36 0-63 . The district co urt,
however, declined to abstain and the issue has not been raised on ap peal.
